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BY THOiMAS WARDLAW TAYLOR, M.A., OP 09OOODB HALT., K'i(}CIRB, B\U3I3TEa-AT-LA'iy. SECOND EDITION. TORONTO : EOLLO & ADAM, LAAV PUBLISHERS, KINO STREET DAST. 18U3. i\ ^0- TORONTO : LOVELL AND GI3S0JJ, LAW AND GENERAL PRINTERS, YONOa STREET \ V k ■ 1 1 'll i ! i ' •' ti i H i ui I k /, ]h. • I ll PBEFACE TO THE SECGiND EDITION. Since 1860, when the former edition of the " Chan- eery Orders" was published, important changes have been made in the practice of the Court, both by the promulgation of numerous additional Orders,- and the repeal of some then in force. In the present edition will be found not merely all the Orders w'.iich at present govern the practice of the Court, but also the Chancery Act as contained in the Consolidated Statutes of Upper Canada. It has also been deemed advisable to add to these, such Orders of the Court of Error and Appeal as re- late to appeals from the Court of Chancery. The re- maining Orders, which regulate the practice on appeals from the Courts of Common Law, have been omitted, because many of them — though unrepealed — have been rendered obsolete by later statutory enactments. In order to make the work more complete, those por- tions of the Consolidated Statutes relating to appeals from the County Courts and Surrogate Courts have been added, together with portions of the various acts re- specting witnesses and evidence, limitations of actions ^ equity, the custody of infants, and the property of Lcligious institutions. i\ ':.: iv PBEFACi:. In the preparation of the notes on the various Orders, great difficulty has been experienced, owing to the dearth of reported decisions en points of practice arising in the Court in this Province. The practice cases re- ported in the earlier volumes of Mr. Grant's Reports, are many of them inapplicable to the present state of the practice ; but it is believed that few of the cases bearing on the Orders and Practice now in force have been omitted. A few manuscript cases, carefully selected, have been given, but only after thorough examination of their authenticity and correctness. Care has been taken to collect as many as possible of the English practice decisions which can be relied on as authorities and guides in this Province. ^ .-^fi Conciseness and the avoidance of needless repetition, have been kept in view as much as possible in the compi- lation of this edition. In endeavouring to carry out these viewSj the leading cases only on the several points iiave been noted ; when many cases are referred to, the prac- titioner often loses much valuable time in searching for those really important. Confirmatory cases will be found mentioned in the report on reference to the case cited. The want of Forms in common use having been felt, a selection has been given, which will be found useful ; and will serve, to some extent at least, as guides in those special cases which so frequently occur in Chancery. \ Whei. ver an Order is a verbatim reprint of an English Order, or section of Act of Parliament, reference has been made thereto in italics at the end of it. In many cases a great similarity occurs, but from the fear of mis- leading the practitioner who may not have a copy of the PREFACK. English Consolidated Orders, or be unacquainted with the practice followed by the High Court of Chancery (in many points essentially dilTerent from ours), such reference has been omitted. The author has to express his great indebtedness to the numerous friends from whom he has received valuable assistance in his labours. He would especially tender his warmest thanks to William Proudfoot, Esquire, of Hamilton, for the exhaustive note upon Section 13 of Order XLII. respecting the powers of the Master. From his experience as Master at Hamilton, and acknow- ledged standing at the Equity Bar, Mr. Proudfoot was well qualified to set out the principles which govern the practice of the Court on this subject. And further, the author must, in this place, mention his obligations to the judicious and pains-taking exer- tions of Mr. G. M. Rae, to whom the book is indebted for the index and table of cases, and also for many of the forms and practical directions, which called for no emendation at the author's hand, and which will prove, it is hoped, not the least important part of this edition of the Orders. * The first edition of this work having been out of print, this book has for a long time been in preparation, but the publication of it was delayed from the belief that more extensive changes in practice would have been effected by the Orders issued in January, than have taken place. In conclusion, the author has to regret that since the following pages were first put into the printer's hands, from unforseen and painful circumstances of bereavement, the publication of them has been delayed. i I I Yi PREFACE. He can only thank the subscribers for their patience, and trust that the book, notwithstanding its many short- comings, of which he is fully conscious, will in some part at least meet with their approbation. Toronto, May 1st, 1863. 1 1 Hi!- .'.: W:f ■fcii4i.% ■ ■:- ■'-■ ^. . \-, .>«>•;,;: ■:' ■'■ * I ■ >■ ' *~f- t ::ilf^l''V< fi "^"A'^fi •■v.' . (•* • i ". \ ' ■ ■ i IV'-- •;'!.., ■ ■ ■ 1 ••' ■; ■'■';■*''• 7 '^^''''J''ls(!tf^' V'i CONTENTS. ••• ••• •■• ••• ••• ••• ■•• ••• ••• ••• •I ••• ••• #•« ••• ••• t«« #•« •• ••• ••• ••• ••• ••• •■• ••• ••• ••• ••• Preface Index of Cases .. Court of Chancery Act Court of Chancery Orders Schedules .. Court of Error and Appeal Act Court of Error and Appeal Orders County Courts Act Surrogate Courts Act Evidence Act Property of Religious Institutions Act Custody of Infants Act Limitations of Actions Act ••• ••• ••• • • • • ■ fl • •• • • • • • ■ •• • • • • • • • !• ••• fl« ••• ••• •#• §•• ••• ••• ■•• ••• •• « • • •• • ••• «• •■• • ••• ••• ■•• ••• ••• ••« tt* •t* at* ••• • • • • ' • Appendix of Fobus : Bills Demurrers Answers Replication Petitions . Notices Affidavits Jurats Notices of Motion .. Appointments ... Miscellaneous ... Bills of Costs Index ... Index of Forma • • ■ • • • • • • ft* ••• flta ••« ••• ••• ••« ••• ••• • ••• ••• ••• ••• ••• ••• •• ••• ••• t«« •t* ••« ••• •■• •• ••« ••• ••• ••• ••• t*« ••• ••• ••• ■•« ••• ••• *•« ••• ••• !•« ••• • •• •• • ••• ••« ••• •!• ••• •«■ ••« ••• ■•• ■•• •«• ••• ••• ••• ••I ••• •#• 99* ••• •#• ••• • •« • « • • •• •• • ••• ••• ••• ••• •#• ••• ••• *** ••• •«• ••• ••• •#« ••• ••• *•• *** •«« ••• ••• ••• vt* «t« Pages iii to vi ix — xxiii 1—34 35 — 224 225 — 238 239 — 245 246 — 255 254 — 257 258 — 263 263 — 267 267 — 268 269 — 270 271 — 272 • . . ... £io 283 286 295 297 309 310 316 318 331 342 369 283 284 285 286 295 296 309 310 316 318 331 3a 369 373 r- '>-., •li'M ; (■ ' r \f''<\ '•■J.r i Kit. ■ '.'. ' **v» ■ -^' ' ••• ' ¥}■. '•' ,{• ■ ' vM- ■ ' fit > > -. * . . t t * > 1 . . . ... ',i:'^'>,. ... ... i>;r ' ^ • :7fe:^i-.;. ... : . . • . . . . • ii r-R'i i£if^v^. • - ' • t t ' r • A^. ..», TABLE OF CASES CITED. .,• . '-1 . ■:*■ Where the name* of the tnme eaten are differently spelt in the Reports, tht diversity in not generally noticed in this volume except where the differtnt Beports are re/erred to sipar( ll « li l< • 1 li II It 1. u II ist, 67. " V Damer. 100; 102. « R.id v., rt8 ; 90. Ball, Hayiies v , 79. Bamford v. Banitord, 168. " H.wes v.. 103; 182. Bampton V. Biichal], 66. Bancr ft v, Wanloui-. 68. Band v. Raiulall, 106. Baikfield, Cooke v. 66. Banks v. Buuks. 1*^0. Bank of Montreal v. Hatch, 60. " Eiiglaud, Berue, city of v.. 48. Bank U. 0. v. Scott. 109. Bannatyne v. Leitder, 91. Barber, Pratt v. , 64. Barclay, Pierson v., 52. " Tavior v , 43. , .j " V. Russell, 42 ; 78. Barfield V. Kelly, -93. ,, Barker Atty.Gen. v.. 41. " Preuton v.. 119. Barlee v. B.-irlee, 46. , Barlow, Wrijjht v., 101. Barnes v. Rid^eway, 61. •• V. Tweddeil, 167. '* Jdhuaon v., 167. Barnewell v. Ireinot>ger, 86. Biirry. Broilie v , I 6. Baraliani, Cusborne v. 30. i( Bartlet V. Wood, 85; 176. Bartley V. Baithy. 92. Bartou V. Lewis, 99 ; 183. j " V. Liitour, l.SO. " V. Barton. 108. " Reid v., 59. „ '• V. Wbitcorabe, 60. Bartl'.oloutew, ^tarten r., 47. Bateinaa v. Cooke, 49. " V. Mageriesou, 62. Baxter ?. West, 126. „ .{ u BayllR V. Watkins, 108. B:izalgette v. Low. 60. | l^eadoii V. King. 92 Beii'>n V. B'omer, 40. lieaufort, Duke of, v. Bertie, 167. " " Wfcllesley v.,270. Beavan, Sergison v., 68. " Sullivan v., 85. Beckett v. Wragge, 24, 40, 167. " V. RpH8, 88. Beckford v. Quarrel!, 159. Bedford Chiirity Re, 41. Bedwell V. Prudence, 87. Veere, Teed v., 142 Beeiham, Busk v , 38. Bell V. Dunniore, 71. " Bowman v., 126. " Tyler v . 68. Bellfimy v. Sabine, 56. B.-llinsjhnm Fdder v., 120. lienbow V. Davis, 80. Bennett, «a;/>ar/e, 161. " V. Duke of Manohester, 80. " Jewse v.. 50. " Howkins v., .59. " Cdl'ege V. Gary, 176. " V Lee, 66. Renson. Hei cbmer v., 78. .[ B. rnard, Tiiomas v, 87. li rnaisconi v. Atkinson, 87. Berne, City of v. Bauk of Englaodj 43. lierney v. SewpU, 126; 165. Bertie v. Lord A^iing'lon, 127. ♦' Duke of Beaufort v., 167. BertollHcci v. Johnston, 66. B^st, Clarke v., 110. Betz V. Menzies 92. Bevan, Crefsy v., 68. Beveridge Sherwood v., 170« , Bevii gti)ii, Bradley v, 31. *t l^evi? V. Bouiton, 161; 162. Kewicke, Manby v., 38 ; 216. Bexley Lord, Hele v., 1('7. Mickerstiiffe, Newburgh v., 167. BiL'gs V. IVnn, 52. Billiim, Watteau v., 89. Bn^, Grote v., 114; 126. BinningtoM v. Harwood, 168. Biiioa, Swallow v., 106. Bion, Jan)e8 v., 102. Birchall, Bumpton v., 66. ^ Bird^iall, Crawford v. 76. liirkenhead Dock Trustees, Ames. T. 127. ,, Bishop of Norwich, Silver v. 12$. t^ Biabton, Crochet v. 182t ^ CAfiits cmBt BhieVborough ▼. Ravenhill, 114. Blackburn v. Jep-«>n 44. BiHokforya V. Higgins'in 66. Braban, Masiers v. 166. Bruoey v. Sandiford, 48. Bradley v. Bevinglon, 31. " Biookfield V. 178. Bradieh v. Gee, 172. Brandon, Jones v. 59; 76. Brennan v Prentiss, 96 ; 169. , B:eut, Watkius v. 126. Brewers' Co., Ally. Gen. ▼. 42. Brewin v. Austin, 2U7. Brian v. Wuiatell, 61. Bridget v. Humes, 60. Briggs, Lady Lin<{da1e v. 104. BriM, Matthew t. 167 ; 168. Bristow, Moneypennv v, 187. " V. Whitiuore, 104. '• V. Needham, 127. Brodie v. Barry, 125. Brooke, Lord, v. Lord Hertford, 48. Urooker v Brooker, ftS. Brookfield V. BMdley, 178. Brooks T. Oreathead, 186. " V. Snaitli. 119. Broomhead v. Cooke, 200. Browne v. Blake, 72. " V. Lockhart, 176. Brown v. De Tastet, 161. " Feuuall v., 182. " Finch v., 162. " V. Weatherhead, 48. Bryan v. Cormick, 127. Buchanan, Mct^lennaghan v. 98. " Thompson v., 1U2. Buck, Warren v. 4il. Buckley v. Cooke, 98. " V. Wd«ou, 109. Blinker, Prentiss v. 78 ; 98. Bunnett, Re, 130. Burden v. Burden, 161. Burlton v. Carpenter, 178, Burrows v. Goodall, 109. Busk V. Beetham, 38. Bute, Earl of, Eden v. 170. " Marquis of, v. Glamorganshir* Canal Co., 91. Butler V. Gardner, 128. Buthn y. Masters, 80. Butterwonh v. Bailey, 62. Byron, Lord, v. Johnston, 108. Bywaier, Re, 126. 0. Calcraft, Davis v. 128. CuUund, Montgomery v. 168. Callaway, McMaster v. 104. Calv.rt v. Day, 38. V. Gordon, 188. Cameron, Danford v. 59; 178. V. Ml Rue, 111. " v. Phipps, 31. " Christie v., 76. Campbell, Inglis v. 81. *• Owen v., 128. " V. Taylor, 188. Otinnan v. Evans, 117. Carew, Hitchcock v. 98. " V. White, 92. Carlisle v. S. E. Railway, 108. Oarnatic, Nabob of the, y. Ea«t In- dia Co. 42. I f I xu CASKS CITED. Carpenter, Burlton v. 17 A. " Tebbs, V, 146. '• V. Wood, 162. O^rringtoD v. Pell, 96. OarroU v. Hopkins, 111. Carruthers v. Armour, 108. Carter, Scott v. 72. " Ooope v.. 162; 196. CaBborne v. Barsham, 80. Cast V. Poyser, 142. Cttston V. Sanderson, 48. Cattle, Rowlatt V. 128. Cauty V. Houiditeh 129. Chaffers v. Headlam, 106. 0!.alk V. Raine.93. Cbalmers v. Lawrie, 51. Channell, Lud^'ater v. 128. Cliapin V. Clark, 89 ; 40. Ouapman v. Fowler, 120 " Knowles v., 159. " Maddison v., 85. " Paine v., 48 ; 68. " Simpson v. 150; 161. Charlemont, Lord, Jones v., 62, Charter, Treveiyan v, 156, Cherry v. Morton, 71 ; 72. Chippendale, Evelyn v. 89. Cbisholm v. Sheldon, 68 ; 98. Chitty, Aberdeen v. 126. Christie v. Cameron, 76. Christmas, Re, 172. Chuck V. Oremer, 178. Clagett V. Phillips, 91. Clapham v. Atty.-Qen , 90. Olapham, Wilson v. 166. Clare v. Wood, 98. Clark, Chapin v. 89 ; 40. Clarke v. Best, 110. •' V.Clarke, 61, " V. Ferguson, 89. " V. Hall, 208. " V. Jaques, 128. " V. Law 129: 131. " Matbeson v. 161. •* V. Mayor of Derby 68. <• V. MetCrtlf 66. Olarkson, Neeson v. 162. Claxton, Wardlo v. 68. Cleggv. Fisbwick 126. Clement v. Bowes 107. V.Griffith 86: 129: 181. Clemmow, Kerr v. 78 Cleveland y. McDonald 61. Cliffe, Laslett v. 1 10. " V Wilkinson 40. Clinton, Trefusis v. 1 20. Cluer, Wilson v. 162. i Oobourg and Peterborough Rail Co., V. Covert 191. Cochrane v. Fearon 39, Ooc'kburn v, Thompson 46. , * Cocks V. Gray 164. ,•. Col borne v. Thomas 190. v Colburn V. Simms 176. v C.ldwell V. Hall23; 24: 162. ' ., Colhoun, Frankly n v. 167, Colkr, Tblbodo V. 111. CoUett V Preston 62 : 65 : 88 : 100. " Shilleto V. 270, Collinridge, Cook v, 150; 161. Collins V OoUyer 79. " Bliss V. 102, ,-r, " Strange v. 72. , * " Crawshay v. 149. ;>* Colman v. Northcote 76. ("oinmercial Bank, Counter v. 188. Colnaghi, Bliick v. 194, Columbian Government v. Rothschild 43 : 64. Colvin, Lord v. 96: 184. Colyer v. Colyer 142, . ,.,,. ,q " Collins V. 79. Conger, Peterborough v. 67 : 78 : 76 : 96. Congreve, Hichens v. 63. , ..^.r^fj Connell v. Bardie 119. , ,• ConoUy v. Montgomery 87. , /■ " Thrasher v. 78. . / Conroy, Grange v. 78. ■•M'ir Constable v. Gnest 160, •• V. Howick 210. .,r. Cook V. Collinridge 150 : 161. ,i, " Atkins V. 89. *' Bateman v. 49. " V. Broombead 200. " V. Fryer 46 : 64. " V. Bamfield 66. " Warde v. 119. Coombe v. Corporation of LondoD 91. Coombs, Aitchison V. 66: 168: 162. Coopo V, Carter 162: 196. Cooper, Attorney-General v. 62. " v. Lewis 194. , ,^ « V. Purton 39. " Grane v. 92. Cope, Dakin v, 156, 159 y Coppin v. Gray 66. Corby, Cotton v. 251. , ,< Corry v. Curlewiss 101» * Cosfurd, Dexter V. 66. „i Cottee, Knott V. 117: 146. ., , Cotton V. Coiby 261. Coulsting V. Coulsting 4>f. Counter v. Commercial Bank 188. CASKS CITED. XUl Oonrtenay r. Hoskins 164. Courtney v. Stock 200. « White V. 210. Ourtoifl V. Vincent 270 Ooueiub V. Viisey 86. OunMt V. Harris 126. Covert, Coboiirg and Peterborough Rail Co. V. 191. Coventry, Evans v. 126. '' Cox V. Taylor 106. ' Cozens V. McDougall 210. Oraddock, Wbatton v. 207. Craisr v. Craig 13. Crandell ▼. .Moon 96: 164. Crawford v. Birdsall 76. " v. Policy 69. Crawshay v. Collins 149. Cremer, Chuck V. 173. Cresy v. Bevan 68. Creuze v Hunter 141. Orihton 1 82 Croft, Day V. 180. Crooks v. Crooks 121 : 211. V. Glen 48. " Mitchell V. 170. *• V. Street 121: 211. Crowther v. Crowther 167. Cruickdbaiik, Fariell v. 84. Cryne v- Doyle 77 : 78. Crysler, Stokes v. 40. Cummiugs, M:icklem v. 104. " Robinson v. 152. Cumminn, Whiie v. 84. Curling, Marquis of Townsend v. 71. Curie wiss. Corrr v. 101. Curtis V. Curtis 270 " V. Lloyd 194. D. Dakin v. Cope 166 : 189. Dale v. Hamilton 117. Dulton v. Hiiyter 62: 100. •' v. McNider 52. Danier, BuUlwin v. 102. Damor, Earl of Portarlina;tv)ii v. ISO. DHnoock'i, Uurthmd v. SO. Daiifoid v. Camoron 59 : l78. Dai>hwood, Latter v. 152. Daveuport v. Davenport 1 14. •• v. Stafford 172. Davey v. Duraiit 160. Davidson v. MoKillop 87. " V. Leslie 167. Davis v.Bouleoit 106. " T. Duke of Marlborough 126. Davis T. Caleraft 128. '« V. May 152. " Farry v. 68. Dawes, B-iron De Feucberes v. 69. Dawson v. Jay 128. •' V. Raynes 128, Dawkins v. Morton 86. Day V, Suee 102. " V. Croft 130. Oeacon, Lopez v. 91. Deere, Fellows v. 62. DeFeuchers, Baron, Dawes v. 60. DeGrassi, Gooderhain v. 49. Delaval, Pawlett v. 48 : 84. Delavante Re 83. DeManneville v. DeManneville 270. Dering, Moneypenny v. 64. DeVaynes v. Robinson 62. DeVerenne, Sutherland v. 106. D vey: Egg v. 194. Devlin, Strachan v. 111. Dew, iVlcGachen v. 52. Dewhurst Price v. 65. ,; Dexter v. Coslord 56. Dick V. McNab 121. Dickenson v. Duffil 39. '' " Owens V. 142. Dickson v. Pinch 96, ' " Ward V. 87. ^ Dillon Lord, Fellows v. 196. Dix, Manser v. 91. Dixon V. Gay fere 56. " V. Pyner 1 17. Dobede v. Edwards 100. Dobson V. Land 152. Docker v. Somes 148. Dodswell, Middleton v. 126. Dolman, Rippen v. 92. Doe V. Read 127. Doody V. Hij.rgin8 105. Douhtfire v. Elworthy 130. Dowden v. Hooks 46 Dowling v. Hudson 126. Doyle, Pollard v. 128. Cryne v. 77 : 78. Drake v. Drake 170. " r..r8ylh V. 49. '' Drever v. Maudcsley 39. Dnimmond v. Anderson 79 : 172. Diittil, Dirktnion v. 39 Dugdali- V, Johnson 129. Duke V. Edge 62 : 64. " \ Duncan, Varly v. 30. ' ■' ,,' Duncombe v Lewis 62, ', ' '*' Dunn, Henna v. 164. Durant, Davey v. 160. Durham, Armstead v. 68. ' "' t > ...» f,.-. ! ■ I ! A < f I c 6) 2 xxv CASKS CITXD. Dutch Weal ludia Company t. Van- burger 44. Dyutt V. Doytt 39. E. Eades v. Harris 107. East Anglian Rail Company v. Goodwin 193. East Anglian Rail Company t, Russell 127. East India Company, Wadeer y. 86. Easterby. Walker v. 38. Eden v. Earl of Bute 170. '• V. Duko 62 ; 64. Edgson T. £(Jg!H)n 66. Edmunds V. Ac-kland 141. Edwards v. Jones 91. " Wright V. 86. Egg V. Devey 194. Elderton, Winthrop v. OS- Electric TeiegrHph Co. v. Knott 129. Ellice, Wyilie v. 39. EUiott V. Helliweli 197. •• Nichol V. 91. Ellis, Grant v. 158. Elwiii, Fussel v. 53. Eiworihy, Doubtfire v. 130. Ely, Dean of,v. Gay ford 106: 107. '♦ V. Wilson 103. Emerson v. Emerson 100. Emmott, Headdeu v. 106. Enequist, Mollett v. 103. Evaua v. Coventry 126. •♦ V. Evans 193. " V. Williams 193. •• Hughes V. 45 : 54. *• Cannnn v. 117. Evelyn v. Chippendale 89. Eyre v. Hanson 207. ** bimes v. 62. F. Fnirburn v. Pearson 125. Falkland Island Co., Lulone t. 92. Fallows v. Lord Dillon 196. Farewell V. Wallbridge 182. Farebrotlier v. Welcliman, 103. Farish v. Martin 129. Farrell v. Oruiokshauk 81. Farry v. Divis 68. Fawcett, Horaley v. 52 : 62. Fearon, Cochrane v. 39. Fealiiei'stoni'huugh, Winnell v. 64. Feehan v. Ha^es 197. Fellows, Attorney -General v. 200. Fellows V. Deere 62. She.i V. 73. Fennall v. Brown 1S2. Ferguson, Clark v. 39. Field v. Titmnsn 142. " V. Robinson 194. Finch V. Brown 1 52. Finden v. ijtepbens 129. Findlay v Lawrence 8tf: 100: 101. Finn Re 270. Fishwick, Clegg v. 126. Fii-ken, Slater v. 29. Fitzu'crald, Neville v. 98. Fletcher, Walker v. 132. Fleetwooii, Prichiird v. 126. Flight V. Bulland 47. " V llohinson 91. ., ., . Flintoffv. H.vnes 142. Fullett v. Jeflferves 91. Forbes v. Ross 145. Forman v. Gray 88. ^ . Forsyth v Drake 49. , .. " Hill v. 109. ', Forrester Re 84. ^ Fo-ter V. Thompson 56. Foulks, Owen v. 120 , , Fowler v. Buyldon 57 : 106. " Chapman v. 120. " V. Mai shall 84. " v. Reynal 52. Foxall, Jones v. 146 : 147. Frrtncklyii v. Colhoun 167. Francis, WoodhHtch v. 84. , Penny v 84. Frankland v. Overeud 71. Fru^ier v. Sutherland 62. Freeman, Hanisbottom v 126. " Re 239 ; 240 ; 250. Freeland, Sherwooii v. 106. Fryer, Cooke v. 46 : 64. " Re 83. Fuller, Higiiey v. 109. v. Riuhmond 96. Fulton v. Gilinour 71 : 72. Furiuval v. Bogle 172. Fussell V. £iwin 53. Gaisfortb, .\ckland V . 155. Gardner, Porier v, 2(12. •' V. Garrett, 83. Garlnnd v. Garland, 126. Garlic'k v. Law^ion, 104 Gaseoyne, Huugate V. 66. Gatty. Philip8ipn v. 52. Guy fere, Dixou v. 56. I Gayford Gee v. Geidart George Gerrard Gibbs V, Gibson \ ." ▼ Giddingt GilfcBpie Gilmour t( Gingell, ] Girdlestc Giitens. J Glamorgj 131. Gluzbrocil Glen, Croi Glover V Godday v Goldmnid Goodall V Gooderhai Goodfelloi Goodhue > Gooding, i Goodman Goodwin, v., 193. Goodwin, Goidon V. " Pr " M Gosling V. Gould V. ' Goiiihwnit Griiham, h '• Si " V. Grane v. C Gmnge v. Gram v. " Hei« " Pioc Grae8»;tt, Gray, Woo^ " Coppi Gfeatheiid GieavcB V Gieeiihill, , Greenwood Greig V. S( CASES CITED. ii 11 Gay ford, Dean of Ely, v. 106 ; 107. Gee V. Gurney, 168; 170. Geiilartv. Homley, 20V. George v. Wliitmnre 31. Gerruid v. Penswiok, 92. Gibbs V. Payne, 138. Gibson v. Willo, 106. V . Ingo. 63 ; 1 67 . V. L«.i(l Monifort, 128. Giddinga v. Giddings, 40. Gilfc«|)ie V. AkxiiiKh-r. 142. Gilnjour v. MHithe\7, 60: 77. •' Fulton v., 71 ; 72. GIngfll, Pai8i.li V. 165. Girdlestone v. Lavender, 110. Gil tens. Piper v. 101. Glamorgan Canal Co., Blackmore v. 131. Glass, (xpartfi, 290. GlHzbr(.uk V. Gillett, 130. Glen, Crooks v. 48. Glover V Wtblier, 48. Godday v. Sleigh, 101. Goldsmid V, Slotieliewer, 61 . Goodall V. Burrowes, 109. GoodHihara v. DeGrassi, 49. Goodfellowv. Hiimily,6ii; 76; 77. Goodhue V. Wliiiniore, 48. Gooding, Whitriuj^ton v. I(i7. Goodman t. Whitfionibe, 126. " Wilson v., 52. Goodwin, East Anglian Railway Co. v., 193. Goodwin, Hooper V. 120. Goidon V. Calvert, 128. " Price v., 92. «• Miller v, 73. Gosling V. Gosling, 104. G.iulil V. Tailored, 66. Giiuthwaitu V. Ripon, 64. Giiiham, Killnly v. 93. " Smith v., 164. " V. Mcl'herson, 183. Grane v. Coi'p»'r, 92. Grunge v. Conroy, 73. Grant v. Ellis, 168. " Heighiiigtoii v , 148. " Pioctor v , 99. Graasett, Atty.-Gen. v. 24; 158. Gray, Wood v. 40. " Copnin v., 56. Grrathead. White v, 38. Gi eaves v. Greaves, 78. Gieeiiliill, Rump v 1 14. Greenwood v. Sulherland, 104. " V. Atkinson, 71. Greigy. Somuierviile, 142. Greig v. Green, 78. Gresley, Woodyutt v. 128. Griersoii, U'>Mhtnd V. 1*8. Griffith V. Griffith, 126: 128. " Clement v., 8«; l-.'9; 18K Orimsbawe v. Parke. 49 ; 210. Gioom v. Atty.-Gen., 78. Grote V. BioK'. 114; 126. Grovenor v. Milis. 120. (irover v. Lane, 106. Guyer, Momliiy v. 96. Gwyuue, MeNub v. 101. " V Mucara, 113; 174. U. Hnddon, Angell v. 142. Hnkewell v. Wrhber, 198. Hall, Clitrke v. 2<>3. " V. Austin, 52. " v. Coldwell 23; 24; 162. " Airy v. 91. Hambly, Gnodf. How v. 60; 76; *l*l^ Hamil. 1'remilstonu v. 160. Hamilton v. IJuwHier, 128. V. Hiiwsiid, 197. V. D.le, 117. V. felnet, 91. < Walker, 58. Storie, 194. ,i Handt'ord, 170. 2i'7. . 119. Hanliiigham, Slmw v. 51. llargrave v. Hnrgiave, 30. ' Harris, EadoR v. 1(.7. •• v. L.wis 128; 130. " v. liig'ed.w. 93. V, Hariis, 91 . ' , • Const v., 126. 1 Hiirrison v. Mayor of Southampton^ 134. HarriMinv. McOlaslian, 83. Hart V. Tulk, 126. " Rooke v., 145. * •' V. Monteflore. 90; 164. Hartley, Sm th v. 71. ' H.irtlimd V DahCO(kr», 30. ' Haivey V. Hcnon, 200. ' Haiwood, Sniitli V. i;-iO. " Skii It Hammond v Handford v V H;iu-on, I'yre v Hardie, ('oni;eI'. It it kip v., 126. . R nnington, 163. Hatt V. Paike. 198 H .bker, MrN lULhion v. 194. Hasiar V. Hid U, 71 . Hastings, 8yk"s v. 126. Hatch V. Searies, 142. f i 5 \ V. >Vl CASES CITED. Baw V. Vickers, 106. Ilii.vesv. Bamford, 103; 182. IJjiyt'B, RoMS V . 67 ; 76 . " Fet^hiin v., 197. Uaynes. Flintoff v. 142. " Yeiinmn v., 142. " V Bull, 79. Haytcr, DalU n v 62; 100. Eeaddi'ii V. Kmmott, l(i6. Headlani, CLiffeis v. 106. Herttbcott, V Hnlme, 148; 161. " Stephens v., 86. Hebberd, Moody v. 128. Heely, Re, 121. Heigliington v. Grant, 148. Hele V. Lord Bexley, 107. Belli well, Elliott V. 197. Heuderson v. Richtaond, 109. V. Mclver, 161. Henna v. Dunn, 164. Heichmor V. Benson, 78. ' Heriitt V. Reynolds, 168. Hewetson v. Toad hunter, 106. Hicks V. Sallett, 167; 158. Hiles V. Moore, 126. Hill V. Rimmell, 128 ; 130. " V. Forsvth, 109. " Mill V. 159; 161. •• V. McGuire, 66. Hungate v. Gnscoyne, 66. Hingston, Partington v. 106. Hipkinsv. Amery, 160. Hislopv. Wykeham, 130. Hitchcock V. Jacques, 88. ' * V. Caiew, ^8. ** Sutton Harbour Company v., 101. Hoare v. Newland, 159. Hobler, ifc, 130. Hubson, StinsfielJ v. 61. •' Patten den v., 196. Hodges, Re, 128. Hodsou, Reeve v. 30. Hogg, La^hley V. 142; 194. Holcoiube V. Leach, 37. " Latour v., 40. Hoi ford, Yate v. 207. Holly woorl V. VVate'S, 95. Homan, Owen v. 1'25 ; 169. Hooper, Snndon v. 160. Hope V. Hope, 108: 270. " V. Liddell. 216. Hopkins, Carroll V. 111. Horlock V. Smith, 162. Hornby V. Geldult, 207. Horsley V Fawcett, 62; 62. Hoskina, Ouurteuay v. 164. Houlden, Allan ▼. 52. Houlditch, Cauty v. 129; 181. Howard V. Macava, 207. Howell V. H-)weIl, 156; 161. " Tardrew v., 85. Howicke, Constable v. 210. Howkins v. Bennett, 59 Rowland v. Grierson, 188. ilowlett V. Wilhrnham, 76. Uughea V. Williams, 69; 164. exparte. 161. V. Lewi;*, 89 V. Evans, 46 ; 54. Hudson, Dowling v. 126. Huffman, Stevenson v. 128; 256. Humberston, "Wynne v. 90. Humphreys v. Petisam 215. Hunt, Webber v. 152. Hunter, Cruze v. 141. Hurst v. Padwick 38. Hutchinson, Lambert v. 107. Hyde, Moffutt v. 173. " Lomax v. 160. Jesse Johni 130; A Ince, Sanderson v. 197. Incorporated Society v. Richards 158. Ingledew, Harris v. 93. Inglis v. Campbell 81. Ingo, Gibson v. 63; 167. Irtminongers' Co., Atty. Gen. v. 42. Irvine, Leith v. 160. Irving, Veilch v. 40. Ivie, Taner v. 47. J. Jackson v. Jackson 1 8. '« V. Townley 104. Jacques, Rees v. 100. " V. Hitchcock 88. " Clarke v. 128. James v. Aston 106. " ex parte v. 159. i " V. Biou 102. " V. Rice 80. ^ " Jones V. 49. Jarvis, Tolson v. 79 ; 172. " Speidall v. 78. " McDonnell v. 96. . Jav, Dawson v. 128. Jeffrey, Follettv. 91. Jenkins, Greene v. 66. Jennings v, Merton College 71. " V. Pearce 68. li u CASES CITED. xvU •I It « t< II i< Jesse ▼. Bennett 60. Johnson v. Barnes 1 6l. " Dugdale v. 129. Johnston v. Tucker 89. " Kelhiway v. 62. Jones, Loyd v. 163. Mucnamara v. 161. • Edwards v. 91. Foxall V. 14t> ; 147. Sir Thomas, settled estates, 120. V. Riiberts 180. V. Morgan 100. " V. Joucs 89. " V. Lord Charlemont62. " V. Brandon 59; 75. " V. Janit's 49. " V. Powell 47. " McLuro V 202. K. Kay V . Sanson 70 ; 89 . Keigliley, Young V. 66. Keith, Marsh v. 104. Kellawiiy v. Johnson 62. Kennedy Re 21; 123. Kensington v. Bouverie 154. » Lord Rooke v. 104 Kerr v. Murray 62. " V Clemmow 73. " Mair v. UO; 171. " Atty Gen. v. 42. Killaly v. Grnbam 93. King, Wright v. 167. Kingston v. Monger 58. Kinnard Lon), Simmons v. 126. Kinsman v. Kinsman 56. Knapp, Murney v. 60. Knight, Atl'y Gen. v. 42. Knott V. Coltee 117; 146. " Perry v. 62. " Electric Telegraph Co. v. 1 29 . Knowlesv. Chapman 169. " Staggv. 101. Labadie, Nevieux v. 108. Labertoucbe, Pauton v. 40. Lafoue v . Falkland Island Co. 92 . Lake v. Skinner 93. Lambe v. Warde 96. Lambert v. Hutchinson 107 Lamont v. Lamont 169 ; 162. Lancaster v . Thornton 48 . Lane, Grover T. 100. 100; 101. 162. Langdiile Lady v. Briggs 104. L:inham v. Pirie 106. Larkin v. Armstrong 210. Lushley V. Hogg 142; 194. Luslett V. Cliffe 110. Latourv. Holcomhe 40. Latter V. Dashwuod 162. Lavender v. Girdiestone 110. Lawlor V. Murcliisoii 91. Lawrence v. Maule 215. " Findlayv.89; Lawrie, Chalmers v. 61 . Law son, Sleight v . 116; Lfizier v. Raimey 108. Ledgerwood v. Ledgerwood 84. LeGi-neve v. Hannan 100. Legge V. Winstanley 69. Leith V. Irvine 160. Leicester Corpor.ition, Atty, Qen. V. 52. Lemon and Peterson Re 290. • Lennghan v. Smith 55. Leneve, Nori is v. 66. Lester V. Aiclidale 62 ; 89; 100. Lett V. Raiuliiil 82. Lewis V. Armstrong 176. '' Coopet V. 194. '• Wayn.- v. 110. /^ " Morgan v. 138. Liddell, Hope v. 216. " Sbiisv V. 52; 73; 76. Liddiard, Hidden v. 164. Lillie V. Lillie 39. • r Little, Payne v. 65. Lloyd V. Sol. Life Assurance Co. 90. '• V. Lloyd 79. " V. Smith 62. *' V. Loaring 44. «- " V. Jones 153. " Curtis T. 194. " Tarrettv. 106. " Stewart V. 66. Lockey V. Lock ey 168. \^ Lodge V. Piitcbard 116. Loiuswnrth v. Rowley 86. Lomax v. Hyde 160. London, Birmingham and Bucks. B. Co. Re 118. London, (Jity of, v. Perkins 216. " Gas Co. V. Spottibwoode S8. Long V. JSiorie 106. Long, Sandys v. Lopez V. Deacon 91. Lord V. Colvin 95; 134. " V. Purchi.-je 126. i Lowatfr, Roliinsonv. 87, Ludgater v. Obannell 128. t c t I I 2 f 'i \ \ XVUl CASES CITED. Land V. Blanohard 60. LyoDS v. Blenkia 2*70 M. Maoara v. Gwynne 118 ; 174. " Howard v. 207. Macclesfield E. v. Blake 120. Macnamara, Purcell v. 164. •• V. Jones 161. Machado, Kinj; of Spain v. 43. Macklem v. Cumrnings 104. Macplierson, Grubain V. 133. Maddison V. Chapman 85. Magnay v. Mines Royal Co. 108. Mair v. Kerr 110; 171. Major V. Major 172. " V. Arnot 56. Malcolm v. O'Callaghnn 127. Manby v. Bewicke 88 ; 170 ; 216. Manchester Duke of, Bennett v. 80. Manley v . Williams 39 ; 78 . Manning, Thornhill v . 207. Manser v. Dix 91. Manton v. Roe 194. Martin v . Read 67 . " V. Norman 156. » Watts V. 119. " Powell V. 198. " Farish v. 129. Margerieson, Bateman v. 52, 196. Marlborough Duke of, Davis v. 126. Marsh v. Keith 104. Marshall, Fowler v. 84. Marten, Newburgh v. 171. Masters v. Braban 156. " Butlin V. 30. Matheson v. Clarke 161. " Pickardv. 173. Matthew, Gilmore v . 60 ; 77. " V. Brise 167; 158. Matson V. Swift 130. Maudesley V. Drever89. Maughan t. Wilkes 182. Maule, Lawrence v. 215. Mavety v, Montgomery 108. Maxwell V. Maxwell 13. May V. Selby 52. " V. Davis 152. Mayor of Southampton, Harrison v. 134. Mayor of Berwick v. Murray 147 . " Poole, Vtt'y Gen. V. 68. " Derby, Clarke v. 63. Meaden v. Sealey 126. Melioruchy v. Melioruchy 89. Mailing V Melliug48. Mflllisb V. Williams 66. v Melville, Whiteave V. 106. 'I Menziesv. Ridley 85. Merton College. Jennings v. 71. Metcalf, Clarke v. 66. " Wilson v. 158. Methuen, Mildraay v. 113. Middletonv. Dodswcll 126. Mildmay v. Methuen 113. Mill V. Hill 159; 161. i ' Miller v. Gordon 73. Milligan V. Mitchell 63. ' "* Milliugton v. Fox 176. Mills Re 123. Mines Royal Co., Magnay v. 103 . Mitchell, Milligan V. 63. " Palmer V. 148. " V. Crooks 70. Moflfattv. Hyde 173. " V. Ruddle 113; 215. i " V. Thompson 48. Mole V. Smith 45; 54. Mollettv EnequistlOS. ' H Monday v. Guyer 96. Moneypenny V. Bristow 167. '• V. Dering 64. . -l Monger, Kingston V. 58. . . >' Montefiore, Hart V. 90; 164. Montgomery v. 113. •• , Mavety v. 108. ■\ V. Calland 153. ., •♦ .ConoUy V. 37. Moody V. Hebberd 128. '* V. McCann 164. ^; ;t Moon, Orandell V. 96; 164. s Moore, Hiles V. 126. " Re 270. , ,; Morgan, Jones V . 100. ., " V. Lewis 188. Morrell, Parker V. 30; 170. Mornington, Earl of, v. Smith 100;, 102. Morris, Tudor v. 51. > Morrison V. McLean 103. " V. Morrison 48. Morse, Sturges v 184. Morehead v. Reynolds 142. Mosley v. Ward 145. Morton, Cherry V. 71 ; 72. \ " Dawkms V. 86. Mourilyan Re 173. M.' Munch V. Cockerill 50. ,, Munro, O'Grady V 88. " ,Keiley V. 81. Murchison, Lawlor v. 91. Murney v . Knapp 60 . " Strachan V. 111. / CASES CITKD. XIX Morray, Mayor of Berwick v . 141 . '♦ V. Palmer 166. « , Kerry. 62. " , Winthrop y. 62 ; 100. Morrow y. Wilson 89. MuBgraye y. Parry. Mutual Fire Insurance Company y. JWPalmer 96 . Mynn y. Hart 89. Ma McCann, Moody V. 164. MoOartyy. Wessels^V. McClenaghau y. Buchanan 98. McDonald Re 21 ; 128. . " V. Jarvis 96. " y. Richardson 148. , Nichols y. 211. McDonnell, Cleveland y. 61. McDougall, Cozens v. 210. McGachen V. Dew 52. McGill, City of Toronto v. 198. McGIashan, Harrison v. 83. McGuire, Hill V. 5.5. Mcintosh y. G. W. R. 113. McKay y. McKay 18. " , Wallace y. 191. McKenny, Arner v. 24. McKenzie, Worth y . 76. " , York Building Co. y. 158; 161. McKillop, Davidson v . 87 . McLaughlin v. Whiteside 87. McLeod y. Annesley 50. McLure y. Jones 202. McMahon, Rawlins v. 106. McMaster v. Callaway 104. McNab v. Gwynne 101. •' , Dick V. 121. McNaraara, Rigby v. 120. McNaughton v. Hasker 194. McNlder, Dalton v. 52. McRae, Cameron y. 111. N. Nail v. Punter 71. Nalder v. Hawkins 47. Nanny v . Edwards 207 . Neeson v. Clarkson 152. Nelson v. Booth 152. " y. Seaman 51. Nethercoat, Att'y Gen. y. 62 Nevieuxy. Labadie 108. Neville v . Fitzgerald 93 . NeyiUay. Nevills 157; 161. Newburgh y. Bickerataffe 167. " Lord, Wynne y. 127. Newbury y. Marten 171. " Corp'n, Att'y Gen. t. 87. Newcastle, Ducbeaa of y. Lord Pel* ham, 186. Nicholy. Eliott91. Nicbolls, Pasmore y. 69. " .Pellatty. 86. Nichols v. McDonnell 211. Nicholson y. Peile 61 ; 63. Norman, Martin y. 166. Norris v . LeNeve 66 . North Wheal Exmouth Mining (3o., Re 96; 134. Northcote, Colman v. 76. Norton v . Steinkopf 87 . Norwich, Bishop of. Silver y. 126. Novelli, Perrotv. 88. O'Callagban, Malcolm v. 127. O'Closter, Webster V. 31. Oglander, Att'y Gen. v. 42. O'Grady V. Munroe 38. Oldale V. Whitcher 38. Orraesby Re 127. V Overend, Frankland y. 71. Owen V. Campbell 128. " V. Dickenson 142. • - " V. Foulks 120. " V. Homan 126. Page, Williams v. 108 : 173. • ■ Palmer v. Lord Ailesbury, 30. " v, Wright, 91. " V. Mitchell, 148. *• Mutual Ins. Co , v. 96. " Murray y. 156. " Prince of Wales Co., y. 107. Paine v. Chapman, 48 : 68 . Panton v. Labertouche, 40. Park, Hatt V. 198. Parker v. Morrell 30 : 170. ' " Watson 170. Wake V.46. Parkes, Grimshaw v. 49 : 210. ''-f- Parsons v. Gingell, 155. Partington v. Reynolds, 39 : 83 : 162. Parnell v. Kingston, 106. ■ Parry, Musgrave v. 46. " V. Howell, 85. ' •'' Pascoe V. Swan, 159 : 161. Paasiugbam y Sherboru, 196. m m c t % t I < pi (/I < r C SI 3^ C49E8 CITSD. Passmore Re, 89. •* ▼. Nicolls, 69, Paton Re, 114. Pattenden v. Holwon, 196. Pawlett T. Delaval 46 : 64. Payne v. Liltle, 66. Gibbs V. 188. " WiiicheBter Bialiop of v. 66. Peacock v. Sievier, 62. Peake, Wilson v. 147. Pearce, JcnningB t. 68. FearsuD, Atty. Gen. v. 62. " Fairburn v. 126. Pedliogton, Waliur v. 62. Peile, Nicholson v. 61 ; 63. Pelbam Lord v. Duchess of N«w- castle, 185. Pell, Oarringlon v. 96. Pellatt V. NichoHs, 86. Pembei'ton, Woi thain v. 46 : 64. Penfold V. Ramsliottom, 68. Penkethman v. White, 91. Penny v. Avison, 148. *• V. Francis, 84. Pensam, Humphreys v. 216. Percivai v. Olaney, 71. Perkins, Richards v. 125 : 126. Periot V. Novelli, 38, Perry v. Knott, 62. V. Phillips. 66 : 172. Peterborough v. Conger, 67 : 73 : 76 : 96. Peters v. Rule, 31. Phelan v. Plielan, 186. Phelps V. Prothero, 71. Philipsun v. Gatty, 52. Phillips V. Phillips, 65. " Perry V. 66; 172. " Clag^elt V. 91. Pbipps, Cameron v. 81. ^ Pickard v. Matheson, 173. Pierson v. Barclay, 52. Pinch, Dickson v. 96. Pinfold V. PinfoM, 101. Piper V. Gitteus, 101. Pirie, Lanheim v. 106. " Player v. Anderson, 38. Plumptree, Atty. Gen. v. 42. Pollard V. Doyle, 128. PoUey, Crawford v. 69. Pomfret v. Windsor, 93. Poole, 8teed man T. 128: ISO. Port Arlington Earl of v. Damer 130. ' Hope Harbour Co., Smithy. 194. Porter v. Gardner, 202. Potts V. Leighton, 127. Poulterers Co., Askew v. 216. Powell V. Walworth, 141. rti " V. M irtin, 193. V, " Williams V. 148. " Weightman v. 61. " Jones V. 47. Power V. Power, 120. P.yser, Cast v. 142. Pr.itt V. Barber, 64, Walker, '28, Preot, Ree:i v. 61. < Prentice v. Prentice, 105. Prenti^^ v. Brennm, 159: 182: 188. " V. Blinker, 73 : 98 : 190. Preston v. Barker, 119. " V. Tubbin, 56. " V. Dickenson, 68. Collett. V. 62 : 65 : 88 : 100. Pi ice V. Webb, 61 : 167. •' V. Dewliurst, 65. " V. Goidon, 92. ' *■ * V.Price. 119. Prichard v. Fleetwood, 125. Prince of Wales Co., Williams v. 92. " " " V. Palmer, IQl. Pnnter, Nail v. 71. IVitchard, Lodge V. 116. /. ■. ^% " Sumerfield, v. 92. . ■ '^^ Senior v. 103. Proctor V. Grant, 99. ■ ., •• Prothero, Phelps v. 71. . j Purcoll V. Mncnamara, 164. ,-, Purchase, Lord v. 126. ri if Purton, Cooper V. 39. , . . "I'i Pyner, Dixon v. 117. • ,, Pyper, Allan v, 59. Quarrell v Beckford, 159. 'I, '• « . :■ r Radley, Standish v. 66. Rarasbottom v. Freeman, 126. s«!! Penfold V. 68. Randall, Lett v. 82. .i Raoney, Lazier v. 108. . Raphael v. Boehm, 144: 146. Ratcliflfe v. Roper, 167. V Rawlins, Sliipton v. 52. ,.;'! V. McMahon, 106. »v.'i'; Raymond v. B'-own, 193. Rayues, Dawson v. 128. '• . ■>; Rayson, Wiikenden v. 178. -f ■ '«' Read, Doe v. 127. ,_ .....ti Redhead, Sparks v. 111. ■.-,>.;i? Reece v. Try, 92. ,.,:,S CA«E8 CITSD. XXI Reed v. Prest, 51. " V. Baitoi), 69. Rees V. JacqucB, 100. Keev* T. Uoil^on, SO. Reid V. Baldwin, 68 : 90. " V. Middletoii, 127. " Martin v. 67. Rendell v. Rendell, 126. Renon, Hnrvey v 2<'0. Reynal. Fdwler v. 52. Reynell, Sprye v. 100. Reynolds Henitt v. 168. " Morsliead v. 142. « PHrtiu_'ton v. 89: 83: !62. Rice, Jaini'B v. 80. Ricbai'ds, Incorporated Society, v.' '3. " V. Perkins 125: 126, Richardson. McDonald v. 148. Richmond, Heudoreon v. 109. " Fidlei- V. 96, Ridge, Sims v. 141. Ridley, Menzics v. 85. Rigl)y V. McNainara, 120. Rigrg V. Wall, 193: 194. Rigney v. Fuller. 109. Rippon, Gouthwaite v, 64. Rippin V. Dolinau, 92. Roaf V. Toppinji^, 40. Roberts. Thomas v. 270. •' Jones V. 130. " Whitfield V. 207. Robertson, Russell v. 49 : 166. Robinson, Devaynes v. 62. " Fliglitv. 91. " Field V. 194. " V. Curaming, 162. " V. Lowater 87. Rochester v. Lee, 30. Rock V. Hart. 145. Rodev, Trulock v. 66; 158. Rodick V. Gandell, 91. Rogers v. Rogers, 51, " Vaughnn v. 80. Rooke T. Lord Kensington, 104. " Webb V. 159. Roper, Ratcliffi! v. 167. Ross V. Steele, 28. " V. Hayes, 57 : 76. •* Forbes v. 145. Rowlatt ▼. Cattle, 128. Rowley, lioinsworth v. 86. " V. Adams, 164. Ruddle, Moffattv. 113: 215. Rule, Peters v. 31. Rump V. Greenhill, 88 : 114. Russell T. Robertson, 49 : 160. " V. East Anglian Rail Oo. 121. Ryan, Wbitmore, v. 68. m Sadler, Wvatt v. 141. Sale V, Sale, 47 . Sallitt. Hicks v. 157: 168. Sdmond, Williami v. 107. Sanderson v. Inci-, 197. V. Cast >n. 48, " V. Walker, 130 Sandon v. Hoii|)ei, 169: 160. Smdys v. Lonijc, 38. Sarell, Co'niau V. 173. Sargeant v. Sharpe, 73. S.iwycM' V. Bowyer, 164. Se;dey, Meadeii v. 126. Scott V. Carter, 72. Si'ainasi, Nelson v. 51 . Searles, Hatch v. 142. SeiiJler ox parte. 39. Selby, May v, 52. Senior v. Piitchaul, 103. Seri^ison v. Bevati, 58 ..a> Severn V Severn, 13. '. ..A Sewell V, Ashley, 84. Shade, Waters V. 190. Shakespear, Sherwin v. 154: 166. Sharpe, Sargeant V. 73. • ;. Siiaw V. Hardiiigliam, 61 . V, Livlddl, 52: 73; 75. i Shea V. Fellows, 73. Sheldon, Chiaholm V. 63 : 93. ■^■ Shelley V. Westbrook, 270. Shepherd, Abraham v. 255. Sherwin v. Shakespear, 154: 166. Sherwood v. Freeland, 106. " Hobhouse v. 127. " V. Bev)ridge, 170. . 6 Shilleto V. CoUett, 270. Shipiim V. Rawlins, 52. ShoflF, Tayh>r v. 191. . ' . 2 Bidden V. Liddiard, 164 . . U Sievier, Peacock v. 62. Silvery. Stein, 106, " V, Bishop of Norwich, 126. Sims V. Eyre, 52. . Simmons v. Lord Kinnaird, 126. Simpson v. Smyth, 23. " V, Chapman, 150: 161. 1 Sims, Ainesley v. 38, " Ridge, 141. ^^ Sivell V. Abraham, 194. . < ' . ,-'i Skinner, Lake V, 93. ■. ."S Skip V. Harwood, 126. ; "i Slater V. Fi-^keii, 29. Sleigh, Goday v. 101. • A Sleigbt V. Lawson, 116: 102. Smart, Atty. Gen. v. 41 : 42 : 6.Z. . j.' Smith, Angel V. 127: 135. 1 c t c 2 < J. r I a XXll CASKS CITKD. Smith, Horlook t. 162. '* Lanagban y. 50. •• Loydv. 62. " Mole 7. 46: 64. " MorningtoD Earl of, v. 102 . " Withamv. 48. " V. Althui, 168. " T. Acton, 172. *• V. Port Harbour Co., 194. " V. Andrews, 61. " ▼.Smith, 62: 126. •' ▼. Hartley, 71- " V. Muirhead, 89. •♦ V. Harwood, 180. Smyth, Simpson v. 23 . Snee, Day v. 102. Solly, Atty. Gen. v. 148. Solomon V. Stalraan, 182. Soules V. Soules, 13. Southampton, Mayor of,HarriBon, v . 134. Spain king of, v. Machado. 48 Sparks v. Redhead, 111. Speidall v. Jurvie, 78. Spicerv. Dawson, 95: 184. Spottiswood, London Gas Co., v. 58. Sprye v. Reynell, 100. Stackpoole v. Stackpoole, 151. Stagg V. Knowles, 101. Stalman, Soloman v. 182. StanardRe 114: 122. Standish v. Radley, 66. Stanley V. Bond, 79. Stansfield v. Uobson, 51 . Starton v, Bartholomew, 47. Steedman v. Poole, 128; 180. Steele v. Stewart, 92. " Ro88V. 28. Stein, Silvery. 106. Steinkopf, Norton y . 87 . Stephens Re 214. " Finden v. 129. " V. Heathcott, 86. Stevenson v. Huflfman, 128, 180, 256. Stewart, Steele v. 92. " y. Lloyd, 65. Stinson v. Stinson, 49. Stintonv. Taylor, 88: 100: 102. Stock, Courtney v. 200. Stokea v. Crysler, 40. Stonehewer, Goldsmid v. 51. Storie, Handford v. 194. " Longv. 106. Stone v. Wishart 126. Strachan v. Murney, 77 : 111 . '• y. Devlin, 111. Strange y. Collins, 72. Street, Crooks ▼. 211. Street, Hamilton v. 91. Stuart Re 114. Stupart y. Arrowsmith, 108. Sturch y. Yonge, 129. Sturges y. Morse, 184. Sullivan v. Beavan. 86. Summerfleld v. Prichard, 92. Sutherland v. DeVirenne, 106. " Greenwood y. 104. " Fraser v. 62. " v. Sutherland, 91 . Sutton Har. Co., v. HitobenslOl. Swallow V. Binna, 106. Swan, Pasooe, V. 169; 181. Swanzy v. Swanzy, 39. Swift, Matson v. 130. " Wardv. 127. Sykesv. Hustings, 126. Tancred, Gould v . 66 . Tanner v. Ivie, 47. Tardrew V. Howell, 85. Tarretv. Lloyd, 106. Taylor v. Amsley, 76. " V. Barclay, 43. Campbell V. 188. Coxv. 106. Re 128 : 270. Shoffv. 191. " Stiuton v. 88: 100: 102. V. Walker, 110: 118: 20l, Tebbs V . Carpenter, 146 . Teed v. Beere, 142. Thibodov. Collar, 111. Thomas v, Bernard, 87. • ''<; " Colborne v 190. '"'• " y. Roberts 270. ' '■ " V. Torance, 51. ' Thompson, Oockburn v. 45. ,, ' " Tiflfany v. 25: 158. V. Buchanan, 102. '" " Fo.'sterv. 56. I " Moffattv. 48. . •; f Thornhill V. Manning, 207. - '- Thornton, Lancaster v . 48 . Thrasher V. Couolly, 78. ^ Tidswell v. Bowyer, 71 . Tiffany v. Thompson, 25: 158. Tilder v. BelHngham, 120. Titmuss, Field V 142. Todhunter, Hewetson v. 106. Tolson V. Jarvis, 172. Tommey v. White, 66. Topping, Roaf v. 40 a- »M a :aL,wiSriiji^i'';sS jk«!#'f^*^vij: CASKS CITKD. xxiii Torr T. Torr, 82. Torrance V. WJnterbottom, 48. " Thomas V. 51. Townend v. Towneod, 147. Townley, Jackaon v. 104. Trefusis v. Clinton, 120. Trevanion, Walsh v. 171. TreVilyan v. Charter, 160. Trillfy V. O'Keefe, 80. Trim v. Baker, 68. Trimleston v. Ilamill, 160. Trulock V. Robey, 66 : 158. Trustees of Birkenhead Docks v. Laird, 104. Tnbbin, Preston v. 56. Tudor V. Morris, 51. Tucker, Johnston v. 89. Tvlerv. Bell, 68. "'• Atty. Gen. v. 41 : 42. Vanburger, Dutch West India Co., V. 44. Vankamp v. Bell, 195. Vosey, Cousins v. 86. Varty v. Duncan, 30. Vaughanv. Rogers, 80. Veitchv. Irving, 40. Vickers, Haw v. 106. Vincent, West v. 120. Vivian, Atty. Gen. v. 41 54. W Wadeer v. East India Co., 86. Wake V. Parker, 46. Wallbridge, Farewell v. 182. Walker v. Easterby, 88. '* v. Fletcher, 132. " Hammond v. 68. " Pratt V. 128. " Sanderson v. 180. " Taylor V. 110: 118: 207, " V. Woodward, 148. Wallace V. McKay, 191. Waller v. Pedlington, 62. Walsh V. Trevanion, 171. Walton, Andrews v. 180. Walworth, Powell V. 141. Ward, Mosley v. 146. " Younge v. 51. " V. Swift, 127. Warde v. Dickson, 87. «' V.Cooke, 119. " v. Warde, 270. Wardle r Claxton, 68 . Warren, v . Buck 46 . Waters v. Shade, 190. Watkins v. Atcliisoo, 80. " V. Brent, 126. Watson V. Parker, 170. Watti'au V. Billani, 39. Watts V. Martin, 119. Wayne v. Lewis, llO. Webb V. Webb, 172. V. Rooke, 169. " Price V. 167. Webber, Hakewell v, 193. " Glover v. 48. " V. Hunt, 162. Webster v. O'Clostor, 81 . Wedderburnv. Wedderbum, 161. Weightman v. Powell, 61 : 63: 7»: 78. Welchman, Farebrother V . 108. Wellesley v. Duke of Beaufort, 270. Wills, Gibson, v. 106. Wessels, McCarty V. 77. West V. Vincent. 120. Weet*)rooke, Shelley v. 270. Whalley V. Whalley, 167. Wharton v. Swan, 61. Wbaltouv. Craddock, 207. Whitakerv. Wright, 164. Whitcomb, Goodman v. 126. White V. White, 38. Greathead, 88 . Cummins, 84. Wilson, 119. Courtney, 210. " Tommey v. 66. " Carewv. 92. Whitcher, Oldale V. 38. Whitelegg v. Whitelegg, 108. Whiteside, McLaughlin v. 87. Whitfield V. Roberts, 207. Whitmore v. Ryan, 58. " George v. 31. " Goodhue v . 48 . Whittington v, Gooding, 107. Wickenden v. Rayson, 173. Wilbraham, Howlett v. 76. Williams v Page, 108. Wilkes, Maughan V . 182. Wilkinson, Cliffe v. 40. V. Wilkinson, 161. Willettv. Blanford, 149: 161. Williams, Evans V. 193. " Hughes V. 154. " Manley v. 39: 78. •' Mellish V. 66. " V. Page, 178. " V. Prince of Wales Co. 92. V. V. V. V, c I c 2 m ' < % < r I c i ixiv OASES CIT^D. li Williams v. Salmond, 107. •' V. Attenborougli, 120. « V. Powell, 148. " ^c28. ■Wilson. Atty Gen. v. 44. Ely V. 103. Murvow V. 39. While V. 119. V. Clapliam, 153. V. Wilson, 125. V. Peiike, 147. V. ("luer, 152. V. Metcalfe, 153. Ex Parle, 155. V. Goodmau, 52. Wiltshire, 7?fi, 83. Winchester Bishop of, v. Payne 56. Windsor, Pomfret v. 93. Winnell v. Featherstom I)augh, 64. Winstanley, Lej^ge v. 59. Winterbottom, Torrnnce v. 48. Winthrop v. Eldertou, 95. " V. Wintlirop, 130. M II (> M 7. Atty. Gen. v. 41: 53. " Pahiiei- V. 91. '• VVhitak.T v. 164. Wyiitt T. Sa'ller, Ml. Wykehain, Hislop v. 130. Wyllie V. Ellice, 39. Wynne y. Hiiintierston, 90. " V. Lord Newburgh, 127. Yaggie i?e 121. Yeoman v= Haynes 142. York Building's Co., y, McKeazie, 158: 161. Young V. Ward, 51. y. Keighley, 66. ERRATA AND ADDENDA. Page 24, Arner v, MoKeuny, since reported in 9 Grant, 226. " 25, Tiffany v, Thomson, sinco reported in 9 Grant, 244. " 90, for Chnphani, rend Clnpham. " 96, /or Wickson, rcati Dicksnn. " 124, Simpson v. Ottawa Rail. Co., Cham. R. 99. A leceiver, though an officer of the court, stands in the position of trusteu to all interested in the estate or fund; therefore, in mukin:^ the tip- poinlment, the court will endeavour to peioct a persoi. unex- ceptionable to all parties, not only on the gcore of fitness and competency, but also as regards the feelings of fiiendship and dislike between the person proposed and tnose with \^hom he, in the discharge of his duties, will be likely to be brought into frequint communicatiou. " 126, for Biny, rtad Bing. " 157, /or Jr., narfp. " 239, Re Freeman is not reported in 8 Grant; but in Grant's Error and Appeal Reports, aa yet nupubiished. •• 290, for the Court ot' Queen's Beaoli, read the judgei of the Court of Queen's Bench in chambera. CHANCERY ACT. fl -I * CON. STAT. U. C, CAP. XII.— AN ACT RESPECT- ING THE COURT OF CHANCERY. HER MAJESTY, by and with the advice and con- sent of the Legislative Council and Assembly of Canada, enacts as follows : I. The Court of Chancery now existing in Uppei* Canada is hereby continued, and shall continue to be called the Court of Chancery for Upper Canada. 7 W. 4, c. 2, s. 1. II. The Governor in Council may, from time to time, determine and declare the seal to be used in the Court, and by w' 'ch its judgments and proceedings shall be certified and authenticated. 7 W. 4, c. 2, s. 18. III. The Court shall be presided over by a Chief Judge, to be called the Chancellor of Upper Canada, and two additional Judges, to be called Vice-ChancellorB. 12 V. c. 64, s. 1. IV. Her Majesty may from time to time, as vacancies occur, appoint, by Letters Patent under the Great Seal of this Province, one person, being a Barrister at Law of not less than ten years' standing at the Bar of Upper C % c t < J I c J) V CHANCERY ACT. Canada, to be Chancellor, and two persons, being Bar da- ters of not less than ten years* standing at the said Bar, to be Vice-Chancellors; and the Chancellor of Upper Canada shall have rank and precedence next after the Chief Justice of Upper Canada; and the Vice-Chancel- lors and the Puisne Judges of the Superior Courts of Common Law shall have rank and precedence as between themselves according to seniority of appointment to their respective Offices. 12 V. c. 64, s. 2. V. The Judges shall hold their offices during good behaviour ; but the Governor in Council may remove any of them upon the address of the two Houses of the Parliament of the Province ; and in case a Judge so removed thinks himself aggrieved thereby, he may with- in six months appeal to Her Majesty in Her Privy Council, and in that case such amotion shall not be final until the appeal has been determined by Her Majesty in Her Privy Council. 12 V. c. 64, s. 3. VI. In respect to the salaries of the Judges, there shall, out of the Consolidated Revenue Fund of the Province, (after paying or reserving sufficient to pay all such sums as were before the thirtieth of May, one thousand eight hundred and forty-nine, directed by any Act of the Parliament of this Province, to be paid out of the same, but with preference to all other payments there- after charged upon the same) be paid to the Chancellor, five thousand dollars per annum, and to each of the other Judges, four thousand dollars per annum ; and these sums shall be paid quarterly, free from all taxes and de- ductions, on the first day of January, the first day of April, the first day of July, and the first day of October, by equal portions, the first payment to be made on the first of those days which occurs after the appointment of the Judge entitled to receive the same ; and in case any CHANCERY ACT. of the Judges be removed from office or die or resign office, such Judge or his executor or administrator shall be entitled to receive such proportionable part of the salary as accrued during the time that he executed the office subsequent to the last payment, and the successor to the office vacated by such Judge shall receive such portion of the salary as accrues from the day of his ap- pointment. 12 V. c. 64, s. 4. M.' VII. In case any Judge of the said_Court of Chancery has continued in the office of a Judge of one or more of the Superior Courts of Law or Equity in Upper Canada, for fifteen years, or becomes afHicled wit' some perma- nent infirmity disabling him from the due execution of his office, and in case such Judge resigns his said office of Judge, Her Majesty may, by Letters Patent under the Great Seal of this Province, reciting such period of service or permanent infirmity, grant unto such Judge an annuity equal to two thirds of the salary annexed to the office of such Judge, to commence immediately after the period of his resignation and to continue thenceforth during his natural life ; and such annuity shall be charged upon and be paid out of the Consolidated Revenue Fund of this Province, after paying or reserv- ing sufficient to pay ail such sums of money as by any Acts of the Parliament of this Province in force on the tliirtieth day of May, one thousand eight hundred and forty-nine, have been directed to be paid thereout, but with preference to all other payments thereafter charged upon the same fund ; and such annuity shall be paid quarterly, by equal portions on the first days of January, April, July and October, in each year, free from all taxes and deductions whatsoever; and the first quarterly payment, or a proportionate part thereof to be computed from the time of his resignation, shall be made on such of the said days as next happens after the resignation ; c K } C 2 m < S) J. < r ? z C V, CHANCERY ACT. » and the executors or administrators of the person to whom the annuity has been granted shall be paid such proportionate part of the same as accrued from the com- mencement, or the last quarterly payment thereof, as the case may be, to the day of his death. 12 V. c. 64, s. 6. VIII. Every Judge shall, previous to executing the duties of his office, take the following oath, which oath €hall be administered to the Chancellor before the Governor in Council, and to the Vice-Chancellors in open Court in presence of the Chancellor : 12 V. c. 64, s. 6. "I , do solemly and sincerely pro- " mise and swear, that I will duly and faithfully, and to " the best of my skill and knowledge, execute the pow- " ers and trusts reposed in me, as Chancellor (or Vice- « Chancellor). So help me God." IX. The Governor in Council may, from time to time, under the Great Seal of the Province, appoint during pleasure, one Registrar, one Master in ordinary, one Ac- countant, and a Sergeant-at-Arms, to the Court ; and these Officers shall, in addition to the duties usually per- formed by the like officers in England, be liable to per- form any other duties assigned to them by the Court. 7 W. 4, c. 2, s. 9,-12 V. c 64, s. 12. X. The Registrar and Master in ordinary may each appoint one Clerk, subject to the approval of the Judges, and may with the like approval remove such Clerk at pleasure. 13, 14 V. c. 50, s. 3,-12 V. c. 64, s. 12. XI. The Master in ordinary, Registrar, or Clerk so appointed, shall not take for his own benefit, directly or indirectly, any fee or emolument, save the salary to which he may be entitled by law ; But the like sums % II p CHANCERY ACT. 9 and fees heretofore payable and receivable in the Court shall continue to be payable and receivable by the like persons ; and all the fees received by or on account of the Master and Registrar, shall form part of the Conso- lidated Revenue Fund of the Province. 12 V. c. 64, s. 13. XII. The Master in ordinary and Registrar respective- ly shall, on the four quarterly days hereinbefore men-^ tioned, render to the Minister of Finance a true Account in writing of all the fees received by or on account of his office, in such form and with such particulars as the Minister of Finance from time to time requires ; and shall sign the account, and declare the truth thereof before one of the Judges of the Court ; and shall, within ten days &f*°': rendering the account, pay over the amount of the fees to the Receiver General ; and if default be made in such payment, the amount shall be deemed a specialty debt to Her Majesty. 12 V. c. 64, s. 14. XIII. The Judges may, from time to time, under the Seal of the Court, appoint, and at their discretion remove, local Masters and Deputy Registrars (both of which of- fices may be held by one person,) in such places respec- tively out of Toronto, as the Judges may think expedient for the purpose of promoting as far as practicable the local administration of Justice ; and the Judges may likewise in manner aforesaid, appoint and remove Com- missioners for administering oaths and taking affidavits and depositions in the said Court with the powers former- ly possessed by Masters Extraordinary and Examiners ; And also an Usher to attend on the Court, and the re- spective Judges thereof, during the sittings of the Court and Judges respectively for the transaction of business, and to execute such process of the Court as may be X \ C c < J, < \ t 5 b CHANCERY ACT. directed to him. 13, 14 V. c. 50, s. 1, — 20 V. c. 56, as. 17, 19,— 7 W. 4,0. 2,8. 10. f , A bill of complaiDt may be filed either \ritb the registrar, or in the of- fice of a deputy registrar, at the option of the plaintiff, Ord. 9, e. 2 ; but all the subsequent pleadings must be filed iu the same office as the bill, Ord. 44, s. 2. The deputy masters and deputy registrars respectively are to perform the duties of their several offices in the tf&me manner, and under the same regulations as the like duties are performed by the master and registrar fespectively ; and all orders, rules aud regulations, ia force respecting the master and registrar respectively, aud re^^pectiug the regulations of their respective offices, are to be in force and applicable to the deputy masters and deputy registrars respectively, iu relation to such duties as they are required to perform ; and the like sums and fees payable to the master and registrar respectively, are to be payable to the deputy masters and deputy registrars respectively iu relation to similar matters, Ord. 44, a. 1. Where the bill is filed in an outer County, the deputy master may j also hear and dispose of all applications in the progress uf the suit, for the \ following purposes, viz: — to appoint guardians ad litem, for infants, — for time to auswer or demur, — for leave to amend before replication, — to postpone the examination of witnesses, or to allow further time for the pro- duction of evidence, — for seeurity for costs, Ibid, s. 4. All office copies of decrees to be served on parties, added in the masters office, u)ay be certified by the deputy registrar, where the reference is made to, Ord. 66 ; deputy registrars are also required to transmit to the registi'ar at Toronto, quarterly, a list of all bills filed with them during the pre> ceding quarter. Ibid a. 2. Certificates of the filing of bills, and certificates of decrees for registration, may also be given by deputy registrars, Con. Stat. U. a, c. 12, ss. 64, 65. XIV. There shall be paid out of the Consolidated Re- venue Fund of the Province, (after paying or reserving sufficient to pay all such sums as were directed by any Act of the Parliament of this Province before the Thirtieth day of May, one thousand eight hundred and forty-nine, to be paid thereout, but with preference to all payments thereafter charged upon the same) the yearly sums following as and for the salaries of the Master in ordinary, the Registrar and the Clerk of the Registrar, that is to say ; to the Master, two thousand dollars ; to the Registrar, one thousand six hundred dollars ; and to CHANCERY ACT. the Clerk, five hundred dollars ; which sums shall be paid quarterly, free from all taxes and deductions, on the four quarterly days hereinbefore mentioned ; but the payment to be made in each case on the first of the quarterly days which happens after the right thereto accrues, shall be a rateable proportion of a Quarter's Salary, according to the time then elapsed since the ac- crual of the right ; and in case of a vacancy in the office of such Master, Registrar or Clerk, the person making the vacancy, his executors or administrators, shall be entitled to a proportional part of his salary according to the time elapsed between the vacancy and the last quar- terly payment ; and there shall also be paid out of the Consolidated Revenue Fund of the Province (after pay- ing or reserving sufficient to pay all such sums as have been directed by any Act of the Parliament of this Pro- vince before the tenth day of August, one thousand eight hundred and fifty, to be paid out of the same, but with preference to all payments thereafter charged upon the same) the yearly sum of five hundred dollars, for the salary of the Clerk in the Master's Office. 12 V. c. 64, 8. 12,-13, 14 V. c. 50 s. 3. XV. The local Masters, the Deputy Registrars, and the Commissioners may retain to their own use all the fees of office which they respectively receive not belong- ing to any fee fund, and need not account to the Crown for any portion of such fees. 20 V c. 56, s. 16. XVI. The Governor in Council may, from time to time, appoint an additional Clerk or additional Clerks in the Court, when the business of the Court requires the same and the Judges of the Court apply for such appoint- ment, and the Clerk or Clerks shall perform such duties as the Court rr.ay, from time to time, by general orders or otherwise, direct. 20 V. c. 56, s. 18. \ C % c 2 < < r I c ■tiHIHH 8 CHANCERY ACT. XVII. Every Officer of the Court before he enters upon his duties shall take and subscribe the following oath, which oath shall be administered by the Judges, or one or more of them in open Court : " I, A. B., of , do hereby solemnly swear, " that I will, according to the best of my skill, learning, " ability, and judgment, well and faithfully execute and " fulfil the duties of the office of Master, &c., {as the case may 6e,) without favour or affisction, prejudice or " partiality, to any person or persons whomsoever. So " help me God." 7 W. 4, c. 2, s. 20. XVIII. When not convenient to a person appointed to any office to attend at Toronto, to take the oath of office, the Court may direct the oath to be taken before the Judge of the County Court of the County in which such Officer resides, and the oath shall be certified by such Judge and filed in the Office of the Registrar. 1 V. c, 14, s. 3. •'' XIX. Sheriffs, Deputy Sheriffs, Gaolers, Constables and other Peace Officers, shall aid, assist and obey the Court and the Judges thereof respectively in the exercise of the jurisdiction conferred by this Act, and otherwise, whenever by any general or other order of the Court or of a Judge thereof, required so to do. 20 V. c. 56, s. 6, —7 W. 4, c. 2,8. 14. All commissions of seque.^tration are to be directed to the Sheriff, un- less some good reason exists for the contrary, Ord. 46, s. 4. For the fees payable to Sherilfe and Ooronera for services, and for ex- ecuting the process of the Court, See Ord. 65. XX. The Court shall be holden at the City of Toronto or in any other place from time to time appointed by Proclamation of the Governor. 7 W., 4, c. 2, s. 1. XXI. The Judges shall sit together for all business CHANCERY ACT. not directed by general or other orders to be transacted before a single Judge, and in such case the Chancellor or, if he be absent, the Senior Vice Chancellor shall preside. 12 V. c. 64, s. 7. At present all causes are heard before a single Judge in the first in- stance ; eitlier on circuit, when issue has been joined, and witnesses have been examined, or at Toronto, on motions for decree, or pro confesso. The full Court of three Judges sits at Toronto, for the purpose of re-hearing causes four times i yoiiv, on the second Thursday in March, first Thursday in June, second Thursday in September, and first Thursday in December, Ord. 86. XXII. The Judges may sit separately, either at the same time or at different times, for the hearing and dis- posing of such matters and the transaction of such business as may from time to time in that behalf be directed by general or other orders of the Court ; and the decrees and orders made by a single Judge in such cases shall have the force and effect of, and be deemed for all purposes to be, decrees and orders of the Court, but shall be subject to re-hearing before the full Court or otherwise, in such cases as the Court, by general orders or otherwise, from time to time directs or appoints ; and every Judge so sitting separately, whether at Toron- to or elsewhere, shall have all the powers of the full Court, subject to any general orders in that behalf. 20 v., c. 56, s. 7. The Judges availing themselves of the power given by this section, sit in Court separately, on alternate weeks. Monday is appropriated to the hearing of special motions ; Tuesday to hearings pro confesso, by way of motions for decree and appeals from masters' reports, Ord, 82, s. 3. XXIII. The Judges, or one or more of them, shall also take circuits for the transaction of such business of the Court as it may be practicable and conducive to the inter- ests of suitors and the convenient administration of justice to dispose of on such circuits ; and for that purpose, the Court, or one or more of the Judges thereof, may hold C K c 2 < (/I < r I c 7i 10 CHAWCURY ACT. sittings for the purposes of taking such evidence and hearing such causes and other matters, and transacting such other business, and at such periods and at such County Towns, as the Court from time to time sees fit to direct and appoint ; and such sittings may, at the discre- tion of the Court or of the Judge who is to hold the same, be held in the Court House of the County Town in which the same are appointed to be held, or in such other place in the County Town as the Judge selects ; and the Judge shall in all respects have the same au- thority as a Judge at Nisi Prius in regard to the use of the Court House, Goal and other buildings or apartments set apart in the County for the administration of justice. 20 v., c. 56, s. 6. /' In pursuance of the authority given by this section the Court has divid- ed the Province into three circuits, ftud has appointed a number of County Towns as places at which witnesses may be examined and causes heard. The Venue must be laid at one of the Towns so appointed for holding examinations, Ord. 66. Causes are now heard at the same time that the witnesses are examined, upon the close of such examination ; no evidence to be used on the hearing of a cause is to be taken before any Examiner or Officer of the Court, unless by the order first had of the Court, or a Judge thereof, upon special grounds adduced for that purpose, Ord. 9*7. The special grounds on which the indulgence is asked .should appear on affidavit, as on applica- tions under Ord. 65 ; but it is presumed the application to have tite evi- dence taken otherwise than before the Court, must be on notice and not ex parte. When the examination of witnesses before a Judge is to be had in any town or place other than that in which the pleadings are filed, the party setting down the cause must procure the transmission of the plead- ings from the office in which they are filed, to the registrar or deputy registrar, at the place where the examination is to take place, Ord. 97, 8.2. The order says nothing as to the transmission of any papers but the pleadings, but it is presumed other papers, such as documents produced under order, will be transmitted also if required. XXIV. All witnesses in any matter pending before the Court, or before any of the Masters thereof, shall give their testimony viva voce^ and be subject to examin- CHANCERY ACT. 11 ation by Counsel, in the presence of one or more of the Judges, or of the Masters, unless it be otherwise ordered by the Court, on special grounds, or with the consent of the parties in the suit or controversy to which the testi- mony relates. 7 W. 4, c. 2, s. 5. No written interrogatories for the examination nf either parties or wit- oesaes, either before or after decree, are to be tiled except l»y leave of the Court. Exumiuutions are to be viva voce, and may be conducted either by the parties, or by their solicitors or courisel, Ord 21. Interrogatories are still \ permitted for tne examination of witnesses, out of the jurirtdictiou, under \ commission. For the mode in which witnesses are to be examined before the Court, and the proceedings upon setting down causes for examiuatioD, «ee Ord, 6ti, XXV. The rules of decision in the Court shall, except when otherwise provided, be the same as governed the Court of Chancery in t*^ngland in like cases on the fourth day of March, one thousand eight hundred and thirty- seven, and the court shall possess power to enforce obe- ; dience to its orders, judgments and decrees, to the same extent as was then possessed by the Court of Chancery in England. 7 W. 4, c. 2, s. 6,-12 V. c. 64, s. 9. XXVI. The Court shall have the like jurisdiction and power as by the laws of England were at the said date possessed by the Court of Chancery in England, in re- spect of the matters hereinafter enumerated, that is to say : — (1.) In all cases of fraud, and accident ; (2.) And in all matters relating to trusts, executors and adminis- trators, co-partnership and account, mortgages, awards, dower, infants, idiots, lunatics and their estates ; (3.) And also to stay waste ; (4) To compel the specific per- formance of agreements ; (6.) To compel the discovery of concealed papers or evidence, or such as may be wrongfully withheld from the party claiming the benefit of the same ; (6.) To prevent multiplicity of suits » (7.) To stay proceedings in a Court of Law prosecuted against equity and good conscience ; (8.) To decree the -v C c 2 m < (/I < I c 13 CHANCERY ACT. issue of Letters Patent from the Crown to rightful claim- ants ; (9.) To repeal and avoid Letters Patent issued er- roneously or by mistake or improvidently or through fraud; (10.) And generally, the like jurisdiction and power as the Court of Chancery in England possessed on, the tenth day of June, one thousand eight hundred and fifty-seven, as a Court of Equity to administer justice in all cases in which there exists no adequate remedy at Law. 7 W. 4, c. 2, s. 2,-16 V. c. 159, s. 21,-13, 14 V. c. 50, s. 4,-20 V. c. 56, s. 1,-12 V. c 64, s. 8. XXVII. The Court may grant an injunction to stay waste in a proper case, notwitustanding that the party in possession claims by an adverse legal title. 20 V. c. 56^ s. 4. n XXVIII. The Court shall have jurisdiction to try the validity of Last Wills and Testaments, whether the same respect real or personal estate, and to pronounce such Wills and Testaments to be void for fraud and undue in- fluence or otherwise, in the same manner and to the aamc extent as the Court has jurisdiction to try the vali- dity of deeds and other instruments. 12 V. c. 64, s. 10. XXIX. The Court shall also have jurisdiction to decree alimony to any wife who would be entitled to alimony by the law of England, or to any wife who would be en- titled by the law of Englarxd to a divorce and to alimony as incident thereto, or to an\ wife whose husband lives separate from her with< at any sufficient cause and under circumstances which would entitle her, by the law of England, to a decree for restitution of conjugal rights ; and alimony when decreed shall continue until the further order of the Court. 7 W. 4, c. 2, s. 3,-20 V. c. 56, s. 2. In suits for alimony the court or a Judge thiereof may, in a proper case order a writ of arrest, to issue at any time after the bill has been filed, and Bball in the order fix the ainouut of bail to be given by the defendant, in CHANCERY ACT. IS order to procure his discharge, C'>n. St-it. V. C., o. 24, s. 9 ; the amount of bail shall not exceed suflBioient to cover tlie amount of future alimony for two vears, besides arrears and costs, but mar be for less at the dis- cretion of the court, Jbid, e. 10. i^lthough in England the mere fact of desertion by the husband, will not entitle the wife to a decree for alimony ; still, as in this country, the court eannot decree restitution of conjugal rights, desertion would be sufficient to warrant a decre ; for alimony, and desertion coupled with other acts of cruelty forms a i.i (terial ingredient in determining a wife's right to relief, Severn v. Severn, 3 Grant 481. Where, a few days after her departure from her husband's house, the wife was found with severe bruises and injuries upon her person, which in the opinion of a medical man, must have been caused by external physica] violence not occasioned by a fall or other accident, and the husband having been shewn to have u«ed violence towards her on other occasions, and in other ways had so conducted himself as to raise a strong presumption that the bruises and injuries were inflicted by him, the court made a decree for alimony, Jacknon v. Jackson, 8 Grant, 499. The court will in n proper case grant interim alimony pendente lite. Smiles V. Soules, 3 Grant US; which is applied for in Chambers upon notice supported by affidavits. But where interim alimony had not been applied for, the court refused to carry the allowance for alimony back to a date beyond the time of making the decree, Ibid. In suits for alimony, the plaintiff, when she succeeds, is entitled, is a general rule, to her full costs of suit, Ibid; and even where, at the hearing, the bill was dismissed, the court refused to dismiss the bill until the arrears of interim alimony, and costs taxed de die in diem had been paid by the defendant, McKay «. McKay, 6 Grant, 383. Wiiere the plaintiff in an alimony suit, after nn order for interim ali- mony had been made, returned to her husband's hou^e, and resided there for some time, but was afterwards obliged to leave by reason of cruelty, a motion to set aside the interim order on the ground of condonation, was re. fused with costs, Maxwell v. Maxwell, Cham. R. 21. The defendant having signed a consent to an order being made directing him to pay the plaintiff a cert^iin sum for alimony, on motion in Chambers for an order in terms of the consent ; held, that the matter must be brought before the tomt, as such an order would amount in reality to a decree in the cause, Craig v. Craig, Cham, R., 41. In fixing the amount of alimony to be paid, the husband's income is the proper guide, Severn v. Severn,'} Grant, 109; allowance increased from £25 to £200 per annuia, it being shewn that the husband's income had in- creased, Ibid. XXXI. In the case of Lunatics, Idiots and persons of unsound mind, and their Property and Estates, the juris- -x C t z m < 3 r \ t I V. i!i 14 CHANCERY ACT. diction of the Court shall include lliai -^'hich in England is conferred upon the Lord Chancellor by a Commission from the Crown, under the Sign Manual. 9 V. c. 10. s. K XXXII. The word " Lunatic " is used in the subse- quent sections of this Act as including an Idiot or other person of unsound mind. 9 V. c. 10, s. 1. XXXIII. The Court may, on sufficient evidence, de- clare a person a lunatic without the delay or expense of issuing a Commission to enquire into the alleged lunacy, except in cases of reasonable doubt. 20 V. c. 66, s. 6. XXXIV. When a Commission has been issued and an inquisition thereupon returned into Court, by which a person is found Lunatic, in case any one entitled to tra- verse the inquisition desires to do so, he may within three months from the day of the return and filing of the inquis'tion, present a petition for that purpose to the Court, and ino Court shall hear and determine the peti- tion subject to the following provisions : 9 V. c. 10, s. 2. 1. In every order giving etlect to such petition, the Court shall limit a time not exceeding six months from the date of the order, within which the person desiring to traverse, and all other proper parties, shall proceed to the trial of the traverse ; but the Court may under the special circumstances of any case, aod upon a petition being presented for that purpose, and upon the circum- stances being substantiated upon affidavit, allow the tra- verse to be had or tried after tlie time limited ; and in such special case, the Court may make such orders as seem just ; 9 V. c. 10, s. 3. 2. The trial may be ordered to take place in any Court of Record in Upper Canada, or before a Judge of the Court of Chancery with the aid of a Jury, according ta the circumstances of the case and the situation of the parties ; 9 V. c. 10, s. 3,-20 V. c. 66, s. 13. CHANCERY ACT. 15 3. The Court may order that the person to traverse, if he is not the party who has been found Lunatic, shall, within one month after the date of the order, file with the Registrar of the Court a bond, with one or more sure- ties, in favor of the Registrar for the time being, and conditioned for all proper parties proceeding to the trial of the traverse within the time limited ; such bond before the filing thereof being approved of and certified to be sufficient by the Judge of the County Court of the County in which the parties reside, or by one of the Judges or Masters of the Court of Chancery ; 4. Every person who does not present his petition, or who neglects to give the security, or who does not pro- ceed to the trial of the traverse, within the times respect- ively limited therefor, and the heirs, executors and ad- ministrators of every such person, and all others claim- ing through him, shall be absolutely barred of the right of traverse. 9 V. c. 10, s. 3. XXXV. In case the Court declares a person a lunatic without issuing a Commission, any person who might traverse an inquisition to the same effect, may move against the order containing the declaration, or may ap- peal therefrom, as the case requires ; and the ri^ht so to move or appeal shall as to time be subject to the same rules as the right to traverse. 20 V. c. 56, s. 5. XXXVI. In case the Court be dissatisfied with the verdict returned upon a traverse, the Court may order a new trial, or more than one new trial as in other cases. 9 V. c. 10, s. 4. XXXVII. In order to afford due protection to the properly of Lunatics, the following provisions shall in every case be observed : 9 V. c. 10, s. 6. 1. The Committee of the estate shall give two or more responsible personb as sureties, in double the amount of C i c z m < (/) 2 r p. t (0 16 CHANCKRY ACT. I Ii!l! P'' 1 1 the personal estate, and of the annual rents and profits of the real estate, for duly accounting for the same once in every year, or oftener if required by the Court ; and the security shall be taken by bond or recognizance in the name of the Registrar of the Court for the time being, in such manner as the Court or* a Master thereof may di- rect, and the same shall be filed in the office of the Regis- trar ; 2. The Committe of the estate shall, within six months after being appointed, file in the office of the Registrar a true inventory of the whole real and personal estate of the Lunatic, stating the income and profits thereof, and setting forth the debts, credits and effects of the Lunatic, so far as the same have come to the knowledge of the Committee ; ' ' - i 3. If any property belonging to the estate be discovered after the filing of an inventory, the Committee shall file a true account of the same from time to time, as the same is discovered ; and 4. Every Inventory shall be verified by the oath of the Committee. 9. V. c. 10, s. 6. Committees of the p<>rBona and estates of lunatics, idiots, and persona of unsound mind, are to be appointed in the sanae manner as receivers, as nearly as circumstances will permit, Ord. 88, s. 2 ; for the mode of pro- ceeding on the appointment of a receiver, see Ibid. s. 1. XXXVIII. Whenever the personal estate of a Lunatic is not sufficient for the discharge of his debts, the fol- lowing steps may be taken : 9 V., c. 10, s. 7. 1. The Committee of his estate shall petition for authority to mortgage, lease or sell so much of the real estate as may be necessary for the payment of such debts ; 2. Such petition shall set forth the particulars and amount of the estate real and personal of the Lunatic, the application made of any personal estate, and an ac- count of the debts and demands against the estate ; Ti CHANCERY ACT. 'n 3. The Court shall, by one of the Masters or other- wise, inquire into the truth of the representations made in the petition, and hear all parties interested in the real estate ; 4. If it appears to the Court that the personal estate is not sufficient for the payment of debts, and that the same has been applied to that purpose as far as the cir- cumstances of the case render proper, the Court may order the real estate or a sufficient portion of it to be mortgaged, leased or sold either by the Committee or otherwise ; 5. The Court shall direct the Committee to discharge such debts, out of the money so raised, and the Court may order the Committee to execute conveyances of the estate, and to give security for the due application of the money, and to do such other acts as may be necessary in such manner as the Court may direct ; and 6. In the application of any moneys so raised, the debts shall be paid in equal proportion without giving any preference to those which are secured by sealed in- struments. XXXIX. When the personal estate, and the rents, profits and income of the real estate of the Lunatic, are insufficient for his maintenance or that of his family, or for the education of his children, an application may be made by the Committee, or by any member of the family of the lunatic, that the Committee be authorized or directed to mortgage or sell the whole or part of the real estate, as may be necessary ; upon which the like reference and proceedings shall be had, and a like order made, as for the payment of debts. 9 V., c. 10, s. 8. XL. In case of any mortgage, lease or sale being made, the lunatic and his heirs, next of kin, devisees, legatees, executors, administrators and assigns, shall have the like interest in the surplus which remains of C % c I m < ■« J, < r ? C \ v» CHANCERY ACT. ^il! I' ill ! IS the money raised as he or they would have in the estate,, if no mortgage, lease or sale had been made ; and such money shall be of the same nature and character as the estate mortgaged, leased or sold; and the Court may make such orders, as are necessary for the due applica- tion of the surplus. 9 V., c. 10, s. 9. XLI. When a Lunatic is seised or possessed of real estate, by way of mortgage, or as a Trustee for others in any manner, the Committee may apply to the Court for authority to convey such real estate to the person entitled thereto, in such manner as the Court may direct ; and thereupon the like proceedings shall be had as in the case of an application to sell the real estate ; and the Court upon hearing all the parties inter- ested may order a conveyance to be made ; and on the application, by bill or petition, of any person entitled to a conveyance, the Committee may be compelled by the Court, after hearing all parties interested, to execute the conveyance. 9 V., c. 10, s. 10. ,, XLII. Every conveyance, mortgage, lease and as- surance made by the Committee under direction of the Court, pursuant tr any of the provisions of this Act, shall be as valid as if executed by the Lunatic when of sound mind. 9 V., c. 10, s. 11. XLIIL The Court may compel the specific perform- ance of any contract made by a Lunatic while capa- ble of contracting, and may direct the Committee to execute all necessary conveyances for the purpose ; and the purchase money, or so much thereof as remains unpaid, shall be paid to the Committee or otherwise as the Court directs. 9 V., c. 10, s. 12. XLIV. The Court may order any expenses and costs of and relating to the said petitions, orders, directions and conveyances to be paid and raised from the lands, CHANCERY ACT. 19 rents or personal estate of the Lunatic, in respect of which the same were respectively made, in such man- ner as the Court thinks proper. 9 V., c. 10, s. 13. XLV. In regard to the partition and sale of estates of joint tenants, tenants in common and coparceners, the Court shall possess the same jurisdiction as by the laws of England on the tenth of August, one thousand eight hundred and fifty, was possessed by the Court of Chan- cery in England, and also as by the laws of Upper Canada is possessed by the Courts of Queen's Bench and Common Pleas or by the County Courts. 13, 14 V., c. 50, s. 4. XLVI. In such cases, any Decree, Order or Report by which a partition or sale is declared or effected, or any Deed executed by the Master of the Court, to give effect to such partition or sale, shall have the same effect at law and in equity as the Record of a Return in the Court of Queen's Bench or Common Pleas or in the County Court has in matters of partition, or as Sherifl[''s Deeds now have in other cases. 13, 14 V., c. 50, s. 4. XLVII. Any partition or sale made by the Court shall be as effectual for the apportioning or conveying away of the estate or interest of any married woman, infant or lunatic, party to the proceedings by which the sale or partition is made or declared, as of any person competent to act for himself. 13, 14 V., c. 50, s. 6. XLVIII. An office copy of the Decree, Order or Re- port declaring a partition, shall be sufficient evidence in all Courts of the partition declared thereby, and of the several holdings by the parties of the shares thereby allotted to them. 13, 14 V., c. 50, s. 4. ^ XLIX. The Court shall also have jurisdiction re- specting the custody of infants in the cases and subject ^ C c 2 M r I C > 5 v» fiO (tmANOBRf AC*. \ m I ! ]'' i ii ill 1 1 I I to the provisions mentioned in the Statute relating to the custody of infants. 18 V., c. 126. By the Con. Stat. U. 0., c. 74, 8. 8, it is provided that, *' Any of the Super- ior Courts of Law or Equity in Upper Canada, or any Judge of any of such Courts, upon hearing the petition of the mother of any infant, being in the sole custody or control of the father thereof, or of any person by his authority, or of any guardian after the death of the father, may, if such Court or Judge fiees' fit, make order Tor the access of the petitioner to such infant, at such times and subject to such regulations as such Court or Judge thinks convenient and just, and if such infant be within the age of twelve years, may make order for the delivery of such infant to the peti- tioner, to remain in the care and custody of the petitioner until such infant attains the age of twelve years, subject to sueh regulations as such Court or Judge may direct, and such Court or Judge may also make order ♦'or '^ ' maintenance of such infant by payment by the father thereof, or by •'- ■' lut of any estate to which such infant may be entitled, of such oUi.'i oi earns of money from time to time, as, according to the pecuniary eircumstaaoes of such father or the value of such estate, such Court or Judg ^.hinlv" ' "t and reasonable." By Bcction 1% '' Th , Court or Judge as aforesaid, may enforce the attend- ance of any pereon before such Court or Judge, to testify on oath respect- ing the matter of such petition by order or rule made for that purpose, and on the service of a copy thereof and the payment of expenses as a witness, in the same manner as in a suit or action in the said Courts respectively, or may receive affidavits respecting the matters in such petition." Section 10 provides that, " All orders made by the Court or a Judge by virtue of this Act, shall be enforceable by process of contempt by the Court or Judge by which or by whom such order has been made." But by section 11, "No order directing that the mother shall have the custody of or access to an infant shall be made by virtue of this Act, in favor of a mother, against whom adultery has been established by judg- ment in an action for criminal conversation, at the suit of her husband against any person." L. When an infant is seised or possessed of or entitled to any real estate in fee, or for a term of years, or other- wise howsoever, in Upper Canada, and the Court is of opinion tliat a sale, lease or other disposition of the same or of any part thereof, is necessary or proper for the main- tenance or education of the infant, or that, by reason of any part of the property being exposed to waste and dilapidation, or to depreciation from any other cause, his interest requires or will be substantially promoted by iiii:! Ill CHANCERY ACT. 21 such disposition, the Court may order the sale, or the letting for a term of years, or other disposition of such real estate or any part thereof, to be made under the di- rection of the Court or one of its officers, or by the Guardian of the infant, or by any person appointed by the Court for the purpose, in such manner and with such restrictions as to the Court may seem expedient, and may order the infant to convey the estate as the Court thinks proper. 12 V., c. 72, ss. 1, 2,-13, 14 V., c. 50,. s. 8. For the mode of proceeding under the provisions of this Act, see Ord. 87.. In directing the sale of infants' real estate, the Court is not governed by the consideration of what is most for their present comfort, but what is for their ultimate benefit ; the Court will order a sale of a portion of an infants estate to save the rest when it is made to appear to be for the benefit of the infant. Re McDonald, Cham, R., 97. On applying for the sale of real estate settled upon infants, the motherr by whom the application was made, was required to join in the convey* ance for the purpose of surrendering the life interest vested in her under the settlement, Re Kennedy, Cham. R., 97. LI. But no sale, lease or other disposition shall be made against the provisions of any will or conveyance by which the estate has been devised or granted to the infant or for his use. 12 V., c. 72, s. 2. LII. The application shall be in the name of the infant by his next friend, or by his guardian ; but shall not be made without the consent of the infant if he is of the age of seven years or upwards. 12 V., c. 72, s. 1. The petition is to be presented by the guardian of the infant, or by a person applying by the same petition to be appointed Guardian, Ord. 37. t, 2 ; when thu iufaut is above the age of seven years ho is to be examined apart upon the matter of the petition, and his consent thereto, and when he is under the age of seven, the fact is to be certified by the Judge or master before whom he is produced. Ibid. s. 6. LIII. Where the Court deems it convenient that a con- veyance should be executed by some person in the place of the infant, the Court may direct some other person in \ C K 2 M ■Si (/I ::< < r I C CD 7i > v. 22 CHANCERY ACT. ! iiii 'I id the place of the infant, to convey the estate. 12 V., c. 72, s. 3. ^^ ' » LIV. Every such conveyance whether executed by the infant or some person appointed to execute the same in his place, shall be as effectual as if the infant had executed the same, and had been of the age of twenty- one years at the time. 12 V., c. 72, s. 3. LV. The moneys arising from any such sale, lease or other disposition, shall be laid out, applied and disposed of in puch a manner as the Court directs. 12 V., c. 72, s. 4. LVI. On any sale or other disposition so made, the money raised, or the surplus thereof, shall be of the same nature and character as the estate sold or disposed of; and the heirs, next of kin, or other representatives of the infant, shall have the like interest in any surplus which may remain of the money at the decease of the infant, as they would have had in the estate sold or dis- posed of if no sale or other disposition had been made thereof. 12 V., c. 72, s. 5. LVII. If any real estate of an infant is subject to dower, and the person entitled to dower consents in writing to accept in lieu of dower any gross sum which the Court thinks reasonable, or the permanent invest- ment of a reasonable sum in such manner that the interest thereof be made payable to the person entitled to dower during her life, the Court may direct the pay- ment of such sum in gross or the investment of such other sum, out of the proceeds of the sale of the Real Estate of the Infant. 12 V., c. 72, s. 6. LVIII. Whereas the law of England was at an early period introduced into Upper Canada, and continued to be the rule of decision in all matters of controversy rela- iliiii CHANCERY ACT. 23 M live to property and civil rights, while at the same time, from the want of an equitable jurisdiction, until the fourth day of March, one thousand eight hundred and thirty-seven, it was not in the power of mortgagees to foreclose, and mortgagors out of possession were unable to avail themselves of their equity of redemption, and in consequence of the want of these remedies the rights of the respective parties, or of their heirs, executors, ad- ministrators or assigns, may be attended with peculiar equitable considerations, as well in regard to compensa- tion for improvements, as in respect to the right to redeem, depending on the circumstances of each case, and a strict application of the rules established in Eng- land might be attended with injustice ; the Court shall have authority in every case of mortgage, where, before the said fourth day of March, one thousand eight hundred and thirty-seven, the estate had become absolute in law, by failure in performing the condition, to make such de- cree in respect to foreclosure or redemption, and with regard to compensation for improvements, and generally with respect to the rights and claims of the mortgagor and mortgagee, and their respective heirs, executors, administrators or assigns, as may appear to the Court just and reasonable under all the circumstances of the case, subject however to appeal by either party. 7 W. 4, c. 2 s. 11. The Court of Chancery may under certain circumstances refuse redemp- tion, notwithstanding twenty years have not elapsed since the mortgagor went out of possession, Shnpson v. Smyth, 1 Error and Appeal, R. 172. In cases of actual mortgage, that is ^Yllere the proviso for redemption appears on the face of the instrument creating tlie incumbrance, the dormant equities act does not apply ; but such cases are to be dealt with under the 11th clause of the original Chancery Act, Hall v. Coldwell, 8 U. C, L. J. 93. LIX. Whereas by the act to establish the Court of Chancery in Upper Canada, it was provided that the rules of decision in the said Court should be the same as ,'\. C I 2 r I C 24 CHANCERY ACT. m 111 governed the Court of Chancery in England ; and whereas in regard to claims upon, or interests in real estate arising before the said date, it is just to restrict the future application of the said rules of decision to casea of fraud, and in regard to other cases, it is expedient, to extend thereto in manner hereinafter provided, the authority so given to the court as aforesaid in case of mort- gages : Therefore, no title to or interest in real estate which is valid at law, shall be disturbed or otherwise affected in Equity by reason of any matter or upon any ground which arose before the 4th day of March, A.D. 1837, or for the purpose of giving effect to any equitable claim, interest or estate, which aroce before the said date, unless there has been actual and positive fraud in the party whose title is sought to be disturbed or affect- ed. 18 V. c. 124, s. 1. This section does not apply to cases of actual mortgage, wbere the pro» vise for redemption appears on tho face of the instrument creating the' incumbrance; such cases are to be dealt with under section 11 of the original Chancery Act, Hall v. Coldiodl, 8 U. C, L. J. 93. It was held by the Court of Chancery that express trusts are not within the statute relating to Dormant Equities, AUr/. Gen. v. Grassett, 6 Grant; 486 ; but the Court of appeal has decided that the Act applies as well to express trusts, as to trusts created by implication of law, Wragg v. Beck- ett, 7 Grant. 220 ; qucere whether the act applies to every case of express trust, or whether a case of express trust so direct and plain might not arise, that the Court would feel authorised to hold that the statute does not- extend to it, though no exception of express trusts is contained in the Act». Atlj/. Oen.v. (7r assert, (in appeal) 8 Grant, 130. In Arner v. McKenny, the three Judges of the Court of Chancery decided, [1] that notwithstanding the Dormant Equities act, the Court would grant relief in the case of an equitable title to land which had been' embraced in a conveyance by mistake, where the legal title of the grantee under such conveyance was not asserted before the passing of the Chancery Act, and where the equitable title of the grantor had been as- serted by possession after the passing of that Act ; and [2] that it was an actual fraud within the meaning of the exception in the dormant equities act, for the grantor under the circumstances to assert his legal title. In Malloch v. Pinhey, the first point decided in Arner v. McKenny^ was decided in the same way by V. C. Esten, in favour of a plaintiff who filed a-bill to have an absolute deed made before the passing of the Chancerjr i) CHANCERY ACT. 2fr Act declftred a mortgage, and for redemption, ■where the defeasable nature', of the title had been admitted, nnd no absolute title had been asserted till . long after the passing of that act. The V. C. also expressed his opinion that the decision in Hall v. Coldwell applied to this case, though this poiat was not determined. In Tiffany v. Thompson, Vankoughnet, C, said, '* In my opinion the Dormant Equities Act does not apply to a case of express trust, for . breach of which the cestui que trust seeks redress against the trustee, and i in the case of such a trust as the present, in which the trustee is called to ' account, it cf. >. form no defence to him. I think the rule of construction should be that the act does not apply as between trustee and cestui qu^ trustent to the cases of such trust, but that exceptional cases arising upon such trusts may find protection under it. I agree with what has been so well said by the late Chancellor, and V. C. Spragge in Wragg V. Beckett, upon the question which 1 do not understand to be settled by any judgment of the Court of Appeal." LX. In regard to any other equitable claim or right which may have arisen before said date, the Court shall have authority (subject to appeal) to make such Decree as may appear to the Court just and reasonable, under all the circumstances of the particular case, provided that the suit be brought within twenty years from the time when the right or claim arose ; and no further time shall be allowed for bringing any such suit, notwith- standing any disability of the claimant or of any one. through whom his right accrued. 18 V. c. 124, s. 2. LXI. The Court shall have jurisdiction to entertain appeals by either party against any Order or Decree made by the Judge of a County Court under the equitable jurisdiction thereof, and the Court of Chancery shall make such Order thereupon in respect to costs or other- wise, or for referring back the matter to tbr' 7udge before whom the same was first heard, as ma^ ue just and proper. 16 V. c. 119, s. 18. Ord. 44, of the County Court Equity orders, relating to appeals is as follows : — Any person desiring to appeal from any decree or order shall, within four weeks from the day on which such decree or order shall be pronounced, file in the clerk's office a bond, with an affidavit of the due ex- ecution thereof, together with an affidavit of justification by the sureties in such bond, and shall serve upon the opposite party, Lis attorney or c c 2 m < i« J, < r I C v^ CHANCERY ^ CT. agent, a notice to thn following effect: "The plaintiff (or defendant as (he case may be) intends to appeal from the decree (or orderj pronounced in this cause on or about the day of last, aad has filed with the clerk of the County Court a bond for the due prosecution of such appeal, with an affidavit of justification by the sureties thereto." Seo. 2. — The security to be given on appeals shall, unless otherwise specially ordered by the judge of the County Court, be by bond to the re* spondent in the sum of £20, which bond shall be executed by the appel- lant, or appellants, or one of them, and by two sufficient sureties (or i appellants or appellant be absent from Upper Canada, then by tuicti sufficient sureties), and the condition thereof shall be to the effect that the appellant shall and will effeotually prosecute his appeal, and pay such costs and damages as phall be awarded in case the decree or order appealed from shall be affirmed or in part affirmed. Sbo. 8. — The parties to such bond as sureties shall by affidavit each make oath that he is a resident householder or freeholder in Upper Canada, and worth the sum mentioned in such bond over and above what will pay and satisfy all his debts. Sec. 4. — Such bond shall stand allowed, unless the respondent shall within ten days after service of the notice required by the first section of this order, move the judge to disallow the same. Seo. 6 — The petition of appeal shall be filed in the office of the regis- trar of the Court of Chancery within Jive weeks from the day on w^' the decree or order appealed from shall have been pronounced, and a c thereof, together with an appointment for the hearing of the appeal, to be obtained from the Court of Chancery or a judge thereof, is to be served upon the respondent, his attorney or agent, at least three weeks before the time appointed for the hearing of the appeal ; the time to be appointed for the hearing is to be not more than five weeks from the day of filing the petition of appeal, unless the court or judge making such appointment shall think proper to appoint a more distant time, under the circumstances. Seo, 6. — The appeal and the perfecting the security thereupon shall stay proceedings in the court appealed from in the fallowing cases, upon "the terms provided in respect thereof, that is to say : > . r (1) When the appeal is from an order or decree directing the payment of money, unless the party appellant shall have further given security ' to the satisfaction of the judge, that, if the decree or order or any « part thereof be affirmed, the appellant will pay the amount directed to be paid by the decree or order, or to the part of such amount as to which the same shall be affirmed, if it be affirmed only in part, and ' all damages which shall be awarded against the appellant on the appeal. (2.) Where the decree or order appealed from directs the assignment or delivery of documents or personal property, the execution of the judgment or decree shall not be stayed by the perfecting of the secu- rity hereinbefore firstly required, unless the things directed to be CHANCERY ACT. 21 assigned or delivered be brought before tbe judge or placed in tho custody of such officer or receivei' as the judRe ehiill appoint; or, unless security le given to the satisfiictiou of tiie jud^o, and in such sum as the judge shall direot, that the appellant will obey the order of the Court of Chancery on the appeal. (8.) Where the decree or order appealed from directs the excL-ution of a conveyauce or other instrument, the execution of the order or decree shall be executed and deposited with the proper officer of the County Court, to abide the judgment of the Court of Chiincery, (4.) Where the decree or order appealed from directs the sale or deli- very of possession of real property or chattels real, the execution of tho same shall not bo ■ -yed, unless proper security be entered into to the satisfaction of u ■ j 'dge, that during the possession of such pro- perty by the appellant he will not commit or suffer to be commitvod any waste thereon; and that if the decree or order be affirmed, he vriW pay the value of the use and occupation of the properly from the time of the appeal until the delivery of possession thereof, tbe amount of which said security shall be fixed by the said judge. {6.) When the decree or order is for the sale of property, and the pay- ment of any deficiency arising up > the sale, the security shall also provide for the payment of such licliciency. In the cases above provided for, proceedings in the County Court shall not be stayed except upon the order of the judge, which he may grant ex parte or upon notice, as he may see fit. In other cases proceedings are not to be stayed except by order of the Court of Chancery or a judge thereof, to be applied for by motion, and to be granted by such court or judge exparte or upon notice, and upon such terms as such court or judge may think proper. Seo. 7— Upon the perfecting of the security for the appeal, it shall be tbe duty of the County Court judge, at the instance and at tbe expense of the appellant, to cause the pleadings, evidence and documents filed or de- posited in his court, to be transmitted to the registrar of the Court of Chancery by mail or otherwise, as he may think expedient, provided that if the parties consent that any document be not sent to the Court of Chancery as being not material to the matter appealed, it shall not be his duty to transmit the same ; and in case he shall be clearly of opinion that certain documents are not material to the matter appealed, and that for any reason it is inexpedient to transmit the same, he may, instead thereof, certify his reasons for not transmitting the same; unless documents are^retained for either of the reasons set forth, the judge is to certify to his sending all the pleadings, papers, evidence or documents filed and deposited in his court. LXIL The Court shall also have jurisdiction on any appeal from the judgment or decision of the Commis- C X c 2 < •< r p. C V m CHANCERY ACT. Eil ij t I sioners under the Act for the protection of the lands of the Crown in Upper Canada, except as in the said Act is otherwise provided ; and the Court may alter, affirm or annul, the decision of the Commissioners, or order further inquiry to be made, or direct an issue touching the matter in dispute, to be tried at law or before the Court or a Judge thereof with the assistance of a Jury, and may make such orders and directions therein (or payment of costs, and other matters respecting the same, as to the Court seem just ; and the decree of the Court shall be conclusive on the party appealing, as well as on the Commissioners. 2 V. c. 15, s. 11. LXIII. In every case in which the Court has authority to order the execution of a deed, conveyance, transfer or assignmenl of any property, real or personal, the Court may make an order or a decree vesting such real or per- sonal estate in such person or persons, and in such man- ner, and for such estates, as would be done by any such deed, conveyance, assignment or transfer if executed ', and thereupon the order or decree shall have the same effect both at Law and in Equity as if the legal or other estate or interest in the property had been actually con- veyed, by deed or otherwise, for the same estate or interest, to the person in Avhom the same is so ordered to be vested, or in the case of a chose in action, as if such chose in action had been actually assigned to such last mentioned person. 20 V. c. 56, s. 8. The court can make a vesting order in those cases only in which it has authority to order the execution of a deed, conveyance, transfer or assign* ment of any property. So where the plaintiff in a mortgage suit for salfr has leave to bid and becomes the purchaser, the court cannot make an order vesting the property in him, inasmuch as he is the person who, in the eveut of a third person having become the purchaser, would have had to execute (he conveyance ; the mortgagor or his heirs not being proper par- ties to such a couvcyance, Eoas v. iSleele, Oham. R. 94 ; Re Williamii, 21 LLXIV. The filing of a bill or the taking of a proceed- ing, in which bill or proceeding any title or interest in -land is brought in question, shall not be deemed notice of the bill or proceeding to any person not being a party thereto, until a certificate by the Registrar or a Deputy Registrar of the Court, in the form mentioned in this sec- tion, has been registered in the Registry office of the County in which the land is situate : — " I certify that in a suit or proceeding in Chancery be- " tween A. B. and C. D., some title or interest is called " in question in the following land, {describing «7.)" But no certificate is required to be registered of a suit or proceeding for the foreclosure of a registered mort- gage. 18 V. c. 127, s. 3,-20 V. c. 56 j s. 9. LXV. Every decree affecting land may be registered in the Registry Office of the County where the land is situate, on a certificate by the Registrar or a Deputy Registrar of the Court, setting forth the substance and effect of the decree, and the land affected thereby. 18 V. c. 127, s. 4. LXIX. In any case in which the Court requires an issue to be tried by a jury, it shall not be necessary to commence any feigned action in a Court of Law ; but upon an office copy of the decree or order directing the trial of the issue, being entered for trial in the same manner as a Nisi Prius record is entered, the issue shall be tried at the Assizes, or at the sittings of a County Court in Upper Canada, in the same manner as issues are tried in actions brought in the Superior Courts of Law or in the County Courts, and the finding of the jury shall be endorsed upon such office copy and signed by the nresiding Judgt, and the office copy shall then be 1 m I c % c ? < (/) < r ? z C > 5 V 80 CHANCSRY ACT. r ■■t. transmitted to the Registrar of the Court of Chancery ; or instead of directing an issue to be tried at law, the Court may try the same by a jury without the intervention of a Court of Common Law, and may issue a precept or order directed to the Sheriff of any County the Court sees fit, requiring him to strike and summon a Jury for that pur- pose ; and at the trial, one Judge or more of the Court of Chancery may sit or preside. 20 V. c. 56, s. 13. The order directing the Issue specifies tbe question or questions of fact to be submitted to the jury, and it usually provides that the parties are to be nt liberty to read the depositions tiilsen in the cause of any witBeas Mtho may be dead, or incapable of attending the trial, Palmer v. Lord Aylesbury, 15 Ves. 176; Watkins v. Ailchhon, 10 Hare, app. 46. The order also directs at what assizes the issue is to be tried, and reserves j'urther directions, or adjourns the further hearing until after the trial A party to an issue is not, by going to trial precluded from appealing^ against the oider directing the issue, Bullin v. Masters, 2 PhiL 290; Parker v. JUorrell, 12 Jur., 253. When the plaintiff neglects to proceed to trial of the issue, the opposite party should move upon notice, that the plaintiff may proceed to trial at the next assizes; or in default that the issue may be taken pro confeato, Casborne v. Barsham, 6 M. & 0. 113, and where the defendant in the suit, is made plaintiff in the issue the plaintiff may make the like motion^ Hartlandv. Dancocks, 5 Dq Q. & S., 661. But; the court will not adopt this course under particular circumstances, or where material wituesse» were unable to attend at the trial, Ilargrave v. Hargrave, 8 Beav., 289 '^ or where by mistake the plaintiff has neglected to give notice of trial ia time, Varty v. Duncan, 11 Jur., 809 ; and see Reeve v. Hodson, 11 Jur. 844. The motion being one " relating to the conduct of a suit," may bo made iD chambers, Ord 34. If any of the parlies are dissatisfied with the ver» diet, they may apply for a new trial, the motion for which is made to the Court of Chancery, and uot to the Court of Law, Boolle v. Blundell, \9 Vtis. 494. Under special circumstances the Court has directed a third trial of an issue, Hargravf: v. Ilargrave, 13 Jur., 463. As to the principles which guide the Court in granting a new trial upon the ground of misdi- rection, see Bennett v. Duke of Manchesl,;\ '* W. R. 644; S. C. 28 Law T. 831. The general rule with respect to the costs of an issue is that they follow the event, and are given to the party who prevails at law, Rochester v. Lee, 2 De G., M. & G. 427 ; but tl is is liable to exceptions. The costs of an issue directed on an interlocutory application may be disposed of after the issue is decided, without waiting for the hearing, Duncan v. Varty,. 2 Phil. 696. CHANCERY ACT. SI *,' Trial by Jury in Chancery will not generally be directed where either party desires a trial at law, Peters v. Rule, 7 W. R. 171 ; nnd cannot be directed, except at a stage of the suit, and in circumstances in which it has been the practice to direct an issue, Bradley v. Bevington,^ Drew, 511*^ 6 Jur. N. S, 662. The Court will not direct a trial before it on an opposed application for the purpose before the hearing ; where it is clear the question is proper for such trial, the parties should agree to the application to save the ex- pense of tailing the evidence twice, George v. Whitmore, 26 Beav. 657. LXX. In any suit instituted in the Court of Chancery by a mortgagee or judgment creditor, or by any other person having a charge on real property, for the foreclos- ure or sale of property, and to which suit any judgment creditor of the mortgagor or of the judgment debtor, or of the person liable to the charge, is a defendant, person- al service on such defendant shall not be necessary, and it shall be sufficient to serve the process of the Court, whether the same be an office copy of the bill or an office copy of the decree or decretal order, upon his Attorney in the action at Law in which the judgment has been recovered ; but the plaintiff in any such suit in Chancery may elect to serve the judgment creditor per- sonally instead of serving the Attorney. 20 V. c. 66, s. 14. This section applies only to oases of foreclosure or sale by an incum- brancer, Munro v. Keilcy, Cham. R. 23. When under this section an office copy of the bill is served upon the attorney at law, the three weeks notice of motion required by Ord. 13. s. 8, must be given, before the bill can bo taken pro confesxo ; but tlie notice of motion may be served on the attorney, Webster v. O'Oloster, 6 Grant, 278. In moving for an order pro confesso after service upon the attorney of a judgment creditor, tlie affidavit of service must follow the words of the act, and shew that the party served appears as the attorney of the creditor on the roll of the judgment in respect of which he is made a party to the suit, Cameron v. Phipps, Oham. R. 4, LXXI. An absent defendant may be served at any place out of the jurisdiction of the Court, with a copy of any bill or proceeding, without an application being previously made to the Court for the allowance of such C % ?: c 2 < Cl J, z C V S2 CHANCERY ACT. ilh service, and the service shall be allowed on proof to the satisfaction of the Court that the same was duly made. 20 V. c. 66, s. 15. In practice this section was never acted upon until recently, as the Court '' would not upon default of answer, grant an order pro confesao, until an order limiting the time within which the defendant was to answer had been obtained, and had been served personally upon him; and this, even although the endorsement upon the office copy of the bill required by Ord. 9, B. 3, had been altered so as to give the defendant the same time for answering, as the Court would give by the order authorising service of the bill out of the jurisdiction. The necessity for obtaining an order giving leave to serve out of the Jurisdiction is now done away with, and the time within which a defend- ant is to answer according to the distance of the place where served, and the mode of swearing affidavits of service abroad are regulated by a general \ order, Ord. 101. I LXXII. All moneys that become subject to the control and distribution of the Court, shall be paid in the name of the Accountant General of the Court into the hands of such person or body corporate, or be vested in the name of the Accountant General in the public funds of the province, or in such other securities, as the Court from time to time directs ; and all interest arising from the sums so deposited or vested, shall be added to ths principal sum, and be distributed therewith to the persons entitled to receive the same. 7 W. 4, c. 2, s. 7. Money ordered to be paid into Court is to be paid into the Commercial Bank, with the privity of the registrar ; the solicitor, or party paying the same, is to furnish the bank with a correct copy of so much of the order of the court as relates to such payment, with the names of the parties to the suit, and the date of the order, Ord, 43, s. 8. In practice no copy of the order is furnished to the bank, but a direction is obtained from the Registrar, directing the bank to receive so much money from the person paying it in, and place it to the credit of the particular suit or matter. To this direction are annexed two receipts to be signed by the proper bank officer, one of which is returned to the registrar, the other retained by the person making the payment. All sums of money paid out of Court are paid upon the cheque of the registrar, countersigned by one of the judges of the Court, and not other- wise, Ord. 43, 8. 8. These cheques are payable at all the agencies of the 7 bank without discount. CHANCERY ACT. 33 LXXIII. A fee of ten cents shall be paid to the Re- gistrar or Deputy Registrar, on the filing of every bill and of every answer or demurrer, in addition to other fees and charges thereon ; and such fee shall be paid in to an account to be called " The Suitors' Fee Fund Account," which account shall be kept and managed as may from time to time be directed by the Court, and the sums, at the credit of such account, shall be applied by the Court as may be necessary for the protection of infants and other persons not sui juris on whose behalf proceedings may be had in the Court, or may by the Court, be order- ed to be had in other Courts. 20 V. c. 56, s. 20. The amount payable on the filing of every bill ia fifteen shillingp, viz. ; two shillings and six pence by the tariff of coal 8 fixed by the Court; twelve Bhillings for the fee fund, under Con. Stiit. U. C, c. 33 ; and six pence under the above section. LXXiV. All general orders of the Court existing when this Act takes effect are hereby confirmed and de- clared to be as effectual as if the same were hereby specially enacted ; but the same may, from time to time, be suspended, repealed, varied and re-enacted by the Court, and shall, in all respects be subject to the control and direction of the Court and the respective Judges thereof, as in the case of any other general orders which the Court is empowered to make under the general or other jurisdiction thereof. 20 V. c. 56, s. 21. 12 V. c. 64, s. 9, LXXV. The Court may, from time to time, make such General Orders as to the Court may seem expe- dient, for regulating the Offices of the Masters and Registrars, and for regulating and securing the due per- formance of the duties of all the Officers of the Court, and for regulating and adapting to the circumstances of this Province, the practice and proceedings of the Court, and more especially the nature and form of the process and pleadings, the taking, publishing, using and hearing of c C % c •• < < r I c 2 5 V H CHANCERY ACT. testimony, the examination of the parties to a suit upon their oaths, vivd voce or otherwise, the allowance and amount of costs and every other matter deemed expedient for better attaining the ends of Justice, and advancing the remedies of Suitors ; and the Court may, from time to time, suspend, repeal, vary or revive any such orders, but no such order shall have the effect of altering the principles or rules of decision of the Court. 12 V. c« 64, s. U. See c. 72, s. 7,-7 W. 4, c. 2, s. 4,-20 V. c. 66, s. 21. LXXVI. AH gaols in Upper Canada shall be prisons for the Court. 7 W. 4, c. 2, s. 14,-9 V. c. 10, s. 14. 1 u i..'i ,1' ., , ' , i V, ORDER I. 35 ORDERS IN CHANCERY. The Judges of the Court of Chancery do hereby, in pursuance of an Act of Parlfament passed in the 12th year of the reign of her present Majesty, intituled " An Act to provide for the more effectual administration of jusiice in the Court of Chancery, in the late province of Upper Canada," and of an act passed in the 13th and 14th years of the reign of her present Majesty, intituled " An Act to amend the Registry Law of Upper Canada," and in pursuance and execution of all other powers enabling them in that behalf, order and direct that all and every the rules, orders, and directions hereinafter set forth, shall henceforth be, and for all purposes be deemed and taken to be, general orders and rules of the Court of Chancery, viz. : I. — Introductory. These orders are not to affect suits already commenced, except as hereinafter provided ; and as to all suits here- after to be commenced, they are to take effect on the 1st day of July, 1853. II. — Abrogation of Prior Orders. All the orders of this Court which were in force on the 1st day of May, 1850, numbered from I. to CXCII. ; and all orders promulgated on the 7th day of May, 1850, numbered from I. to LXXXIV. ; and all orders promul- gated on the 7th day of January, 1851, numbered from p. Ic' 1:5. tf < r z C 36 ORDER III. I. to XXV., are hereby abrogated and discharged, except as to suits already commenced. III. — Interpretation. In these orders the following words have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there is something in the subject or context repugnant to such construction : (1.) Words importing the singular number include the plural number ; and words importing the plural number include the singular number. (2.) Words importing the masculine gender include* females. (3.) The word " person " or " party " includes a body politic or cor- porate. (4.) The word " bill " includes information. (5.) The word "plaintiff" includes informant. (6.) The word " affidavit " includes affirmation. (7.) The word " legacy " includes an annuity and a specific as well as a pecuniary legacy. (8. ) The word " legatee " includea a person interested in a legacy. (9.) The expression " residuary legatee " includes a person interested in the residue. (10.) The word " order " includes decree and decretal order. . . >^ ^t-; The first five subsections of the above order are copied from the EDglish orders of Court. i . nj IV. — Long Vacation. The long vacation is to commence on the 1st day of July, and to terminate on the 2 1st day of August in every year. i • The time of the long vacation is not reckoned in the computation of the time allowed for, (1) amending or obtaining orders for leave to amend bills; (2) setting dov^n demurrers ; (3) filing replications, or setting down causes under the directions of Order 18, Ord. 5, s. 4 ; nor in the time appointed or allowed for the purpose of answering either an original or amended bill, Ord. 60. V. — Computation of Time. 1. When any time limited from or after any date or event is appointed or allowed for doing any act or taking ORDER v. SEC. 2. 37 any proceeding, the computation of such limited time is not to in clude the day o f such date, o r of the happening oTsuch event, but is to commence at the beginning of the next following day ; and the act or proceeding is to be done or taken at the latest on the last day of such limited time, according to such computation. {Eng. Con. Ord.y 37, r. 9.) If the time limited were a fortnight, commencing on a Monday, it would include the second Monday following, Anyell v, Westcomb, 1 M. OllDKR IX. SEC. 12. 18 Jur. 446. Where the name of a deeeased person erroneously made party by amendment was struck out by another amendment, the latter notwitbio this rule, Horsley v. Faweelt, 10 Beav. 191. 12. One order of course to amend the bill, as the plaintiff may be advised, may be obtained by the plaintiff upon precipe, at any lime before filing the replication, and within four weeks after the answ^er, or the last of several answers has been filed : but no further order of course for leave to amend the bill is to be granted after an answer has been filed, except in th6 case provided for by the 11th section of this order. {Eng. Con. Ord. 9, rr. 11, 12. Under the common order to amend the plaintiff cannot entirely chnnge the nature of the bill, S7}nth v. Smith, Coop. 141 ; nor amend a bill for discovery, by praying relief, Buttenoorth %>. Bailey, 15 Ves. 353. The name of a defendant cannot be struck out after he has answered except upon payment of costs. The common form of order giving defend- ant leave to amend as he may be advised, does not authorise a plaintiflF to strike out the name of a party on the record. The name of a plaintiff may be struck out before answer under an order of course, but if any of the defendants have answered there must be a special application for leave to do so, as the defendant's security for costs is thereby lessened, Fellowes v. Deere, 3 Beav. 353, If one of several defendants has put in his an^ ver, the plaintiff cannot have more than one order of course to amend, Dnncombe v. Lewis, 10 Beav. 273 : Bainbriggcv. Baddelcy, 12 Beav. 152 ; WitUhrop v. Murray, 1 Hare, 150. Adding a defendant is an amendment within this order, and any further order can be obtained only upon special appHcation, Atiorvcy General v. Ncthcrcoat, 2 M. &, C. 604. Amendment by order of course, after special order to amtnd irregular, EJpe v. Duke, 10 Beav. 184. Tlie irregular amendment of a bill is not a ground for taking it off the file, if it can be restored to its original state, AUorncy General v. Cooper, 8 M. & C. 258. The expre^^sion "the last of sovnral answers," means (he last of the sev- eral answers filed by several defendants, Dnllon v. Hay tn; 1 Bo.av. 686', Lester v. Archdalc, 9 Beav. 160 ; and not thf> last answer filed at the time of applying for the order, Arnold v. Arnold, 9 Beav. 200 ; CoUett v, Pres- ton, 3 Mac. «fe G. 432. An order to amend obtained, but not served, is no answer to a motion to dismiss, Jonca v. Lord CharJcmcni, 12 Jur. 389; but an order to amend ob- tained and served after a defpnilant had given notice of motion to dismiss, held an answer to the motion, but plaintiff to pay the costs of the motion, Peacock v. Slevier, 6 Sim. 653 ; Waller v. Pedlington, 4 Beav. 124. ORDER IX. SEC. 13. tonehnugh, 10 Jur. 235; diligence in making the amendments, not in the general conduct of the cause is to be ehowu, Edge V. Duke, II Jur. 21.3. An application to amend at a lat© OROBR IX. S£CS, 17, 18. 6& «tage of thQ cause, will not he sfranted if it appear that auoh Amendments will be attended with any risk of doing injustice. Aitchinon v, Ooombet, 6 Grant 643. The affidavit must satisfy the judge of the neceasity of the proposed apendnient, Bertolacci v. Johnstone, 2 Hare, 632 ; iiud must state not merely that ihe amendment could not, with reasonable diligence, have been introduced, but facts phe wing that, Stuart v. Lloyd, 3 M. <& O. 181 ; Collett V. Presto7i, 15 Jur. 915. jr- Thc affidavit need not statu all the amendments intended, but must state circumstances showing their nature, Payne v. Little, H Jur. 358. 17. Bills of review are abolished. When the reversal of a decree is sought upon the ground of error apparent upon the face of the decree, that object may be attained by rehearing the cause, whether the decree has or has not been enrolled. One re-hearing may be had upon petition, signed by counsel, as in the case of an ordinary re-hearing, as well before as after the enrolment ; but no petition for a second re-hearing is to be filed without leave of the court first had upon special motion for the purpose ; provided that this order is not to be construed to authorise the re-hearing of a cause in the ordinary acceptation of the term after enrolment. Every rehearing must be had within six months after the decree is pass- ed and entered, or within such further time as the court or any judge thereof may allow, Ord. 96. The amount to be deposited with the registrar on a petition of rehear- ing is ten pounds, Ord. 43, s, 1 \ but if the petition of rehearing be dismssed with costs the respondent is entitled to tuxed costs, Clarke v. Metcalf, 2l8t Oct, 1862 ; but see Price v. Dewhurst, 4 M.«fe 0. 282; Phillips v. Phillips, 8 Jur. N. S. 146, 18. Bills in the nature of bills of review ; bills to impeach decrees on the ground of fraud, bills to suspend the operation of decrees ; bills to carry decrees into opera- tion, are abolished. Any party heretofore entitled to file a bill of review, praying the variation or reversal of a decree, upon the ground of matter arising subsequent to the decree, or subsequently discovered, or any description of bill by this order abolished, is to proceed by petition in the cause ; this petition must pray the relief which is C c r i V %«^ 1?^ 66 ORDER IX. SEC. 18. sought, and must state the ground upon which it is claim- ed. The petition is to be verified by affidavit, and must be served upon the solicitors of all parties interested ; and in case any such party has no solicitor, then upon such party ; and where the reversal or variation of a decree is sought upon new matter, such proof as would have been requisite upon a motion to file a bill of review must be supplied. Upon the hearing of the petition, the court, in its discretion, may either make a final order, or direct the petition to stand over, with liberty to the parties interested in sustaining the decree to file a special answer to the same ; and may make such order as to the production of further proof, and the manner thereof, and the farther hearing of the petition, as the court may deem iifieet. Bills of review were either bills for error of law apparent in the decree (which might be filed without leave), TrulocTc «. Rodey, 2 Phill, 395 ; (see observations on that case, Green v. Jenkins, 29 L. J. 505 ; 6 Jur. N. S. 815); Perry v Philips, IT Vcs. 173; Tommey v. White, 1 H. L. Ca. 160 ; Gould V. Tancred, 2 Atk. 533 ; or where material evidence or facts were discovered which could not have been used when the decree passed, in which case leave to file the bill was necessary, Young v. Keighly, 16 Ves. 848 ; Cooke v. Banfield, 3 Swanst. 607 ; Bennett v Lee, 2 Atk. 628 ; Standish v. Radley, 2 Atk. 177 ; Hungate v. Gascoyne, 2 Pbill. 25. Such evidence r facts must not have come to the knowledge of the solicitor of the parties before the evidence closed in the former suit, Norris v. LeNeve, 8 Atk. 35. To sustain a bill of review, the error must be specificaliy assigned ; it must be an error conflicting with some iegal, equitable or statutory rule, not a mere error in judgment. Green v. Jenkins, 6 Jur. N. S. 515. Ou a bill of review, the party could not assign for error that any matters were decreed contrary to the proofs in the case, he could r^how only, error ap- parent in the decree, or newly discovered matter, Mellish v. WiMiams, 1. Vern 166 , The petition filed under this section must be set down to be heard in court, and when it is ordered that any party may answer the petition, and that the petitioner may be at liberty to set down the petition again, it is to be set down in the same manner, and notice of the hearing is to be served, Ord. 91, B. 1 ; a memorandum provided by that order must be en- dorsed upon the copy for service of the order giving leave to answer the pptitir.n, Ibid. , ORDERS X. XI. Wf 19. No bill is to be filed for discovery merely, except in aid of the prosecution or delence of an action at law. Since the pnssing of the C. L. P. Act, bills of discovery have become almost unknown, ns discovery can, under tliat act, be obtained in tbt' action at law. X — Pleas. Pleas are abolished. All defences are to be presented to the court by demurrer or answer, or both, according to circumstances. It is presumed a defendant may still by his answer avail himself of any defence, wliicb he might have urged by plea under the old practice ; only he must now submit that defence to the Court by way of answer. XI. — Demurrers. A defendant may demur to a bill of complaint at any time within one month after service upon him of an office copy of the bill. Upon filing of a demurrer by a defend- ant, either party is at liberty to set the same down for argument immediately. A demurrer is the proper mode of raising a defence, the grounds of which are apparent on the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it. There is nothing in the above order to prevent a demurrer from being filed after the expiry of one month, any more than an answer, if the bill has not been taken pro confesso, but a defendant cannot obtain further time to demur. A demurrer is not put in upon oath, but is filed in the same manner as an answer and notice of filing must be served on the same day, Ord. 19. Notwithstanding the wording of the above order, the plaintiff is entitled to two clear days notice of the demurrer being filed, before the defendant can set it down for argument, tmless the defendant is willing to waive his right to taxed costs ; and a party who files and sets a demurrer down for argument before the expiry Of the two days is held to have waived his right to taxed costs, Baldwin v. Borst, Cham. R. 82. If the plaintiff on perusing the demurrer consider that it is good, and that he must amend his bill, he should at once obtain an order to amend and pay the defendant 208. costs ; and an order of course to amend without costs after demuerer is irregular, and will be discharged, Martin v. Heidi. 6 U. C. L. J. Ud. A demurrer may be set down for argument on any Thursday, Friday, or Saturday, and two days notice of the hearing must be given. When it c c :::3 < 5 ^%. "*' nOi^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 2.8 IM 2.2 1^ lis iio 11= 1.4 II 1.6 V] l% :% K^ \ ORDKR Xn. SBC. 1. is: called on for argument aad the defendkat Aiils to appear, the demnrrer will be Kti'iick out of the paper, unless the plaintiff being the party who haa set down the demurrer can produce proof of sel-vice of the notice of hearing, or if the demurrer be set down by the defendant, an affidavit proving service upon himself of the notice. If the plaintiff be provided with such an affidavit the demurrer is not necessarily overruled, but ha must be heard iu support of the bill, the affidavit of service not authoriz- ing the Court in the absence of the defendant to overrule the demurrer, but only to hear the plaintiff, Penfold v. Ramshottom, 1 Swanst. 662. When the defendant appears but the plaintiff does not, the demurrer will be struck out of the paper unless he is prepared with similiar affidavits, and tpon production of such the defendant may have the demurrer allowed with costs, Jennings v. Pearce, 1 Ves. 44*7. If u. x/;rtl,!ty of amending his bill ; thus upon the allowance of a demurrer for W!^nk oi parties, the Court allowed the plaintiff to amend by striking out thai pn/l of the bill which rendered such parties necessary. Attorney General v Mayor, ^c, of Poole, 4 M. ORDER Xn., 69 ty with the 2n(l and 3rd sections of Order XLIII. The answer is to be verified by the oath of the defendant, and the jurat is to be in the form set forth in schedule E. The answer is to consist of a clear and concise state- ment of such defence or defences as the defendsmt may desire to make. The silence of the rnswer as to any statement of the bill is not to be construed into an implied admission of its truth ; and any allegation introduced into an answer for the purpose of preventing such implied admission, is to be considered impertinent. The answer mu!>t be written in a plain, legible hand, divided bito parar graphs, numbered consecutively, ai)d each paragraph must be confined w nearly as may be to a distinct portion of the subject, Ord. 64. When the defeodaut is resident within the jurisdiction, the answer may be Bworn before any coramissiouer duly authorized to tak« affidavits. It is his duty to forwiii*d the answer, when sworn, to the registrar or deputy re- gistrar to he filed ; and when the answer, after being sworn, comes into the bands of tlie defendant or his solicitor, it cannot be filed unless the oppo- Bite party consents to waive the irreguliirity. To titke the answer of a defendant resident abroad, it is necessary to «q« out a Commission. An answer sworn abroad without a Coramipsion having issued to take it, ia irregular, and cannot be filed, unless tho plaintiff oonsenta to its being filed without Oiith, Crawford v. Policy, Cham. R. 8. . i The order for u Conimission is obtained by motion upon notice, in cham- bers. As the plaintiff is entitled to join in th'' Commission, to see the an- Bwei' sworn, two day's notice of striking commisFioners names, with the names of those proposed, should be given him. If he do uot name any, the defendant may sue out the commission addressed to his own oommiaaionerf, Baron de Feucheres v. Daw.s, 5 Beav. 144. Commissions to take .-inswers are made returnable without delay; but this does not prevent the answer from being fileil, although delay may have occurred, Hughes v. Williams, 5 Hare 211, Where the plaintiff joins in the comiuiasion he is entitled to six day's notice of executing it ; the notice should be signed by the defendant's commissiouei's. and then i-tances, see Bvulton v. Robinson, 4 Grunt 108. The name or firm and place of busincsss of the solicitor filnig an answeTf roust be endorsed thereon. Notice of fi'iug nmnt be served on the plaintiff's solieitor on the Batne c c 2 (J) i 22 V 70 ORDER XII. SECS. 2, 3, 4, 5. day, Ord. 19 ; and this is importaut, as a defendant cannot move to dismUa for want of pro8ecuti<.>D, unless prepared to prove service of notice of filing his answer, Kay v. Sanson, Cham. R. 71. Tlie form of an answer and of the jurat will be found in the appendix of forms. 2. A defendant who has been served with an office copy of a bill of complaint within the jurisdiction of the t30urt, is to answer or demur to an original bill, or bill amended before answer, within one month after the ser- vice of the ottice copy of the bill or of the notice of the amendment of the bill, as the case may be ; and a defen- dant who has been served with an office copy of a bill of complaint without the jurisdiction, is to answer or demur within the time limited by the order which authorises such service. Whenever a plaintiff* amends his bill after answer, a defendant desiring to answer the same is to put in his answer thereto within seven days after notice of the amendment. 3. An answer may be filed without oath, or signature, by consent, without order. 4. When, in order to do complete justice, relief ought to be given to the defendant as well as to the plaintiff, or to the defendant alone, or to one of several defendants, the court, if it see fit, may frame its decree so as to at- tain that object, when the right of the defendant to relief grows out of the same transactions which form the sub- ject matter of the bill ; the facts necessary to make out the defendant's right to relief are to be stated in the an- swer as part of the defendant's case, and he is to pray such relief as he may think himself entitled to. This or- der is not to be considered as authorising a defendant to state in his answer any distinct or independant matters, not connected with, and growing out of the case made by the bill, as the foundation for relief; and the court, in all such cases, may either grant such relief upon the answer, or it may direct or permit a separate suit to be instituted. 6. The court may permit a supplemental answer to be "i'« «-.^i ORDER XII. bEC. 5. !W m filed at any period of the suit, for the purpose of putting new matter in issue, in furtherance of justice, and upon such terms as may seem proper. Leave to file a supplemental answer is to be applied for by motion. The notice of motion is to set forth the proposed answer, and to state the ground upon which the indulgence is asked. It is to be served upon the solicitors of all parties, unless dispensed with; and it must be supported by such evidence as shall satisfy the court of the propriety of permitting such supplemental answer to be filed, under all the circumstances, having reference to the subject matter of the answer, and to the stage of the cause in which the application is made. When a defendant desires to correct, add to, or explain his answer after it is filed be will not be permitted to amend it, but he must apply for liberty to file a supplemental answer, Jennings v. Merton College, 8 Vcfl. 79 ; Phelps v. Prothero, 2 DeG. tt*c4 «M-t '><^^ ®^® month from the time of such service, the plaintiff, ^J^^ tAjijU- after the expiration of one month, and within two months . 53 /oJd^r from the date of such service, may apply to the registrar for an order to take the bill pro confesso against such defendant, and, no answer having been filed, the registrar is to draw up such order, upon precipe, on being satisfied by affidavit that an office copy of the bill of complaint was served personally within the jurisdiction ; and after the expiration of such two months the plaintiff may apply to the court ex parte for an order to take the bill pro confesso^ and the court being satisfied by affidavit that an office copy of the bill was served personally within the jurisdiction, and that no answer has been filed, may,, if it think fi*, order the same accordingly. . Wben tbe bill is filed in an outer country tbe order ^ro con/tf«»o after tHe ezpirntion of one montb and witbin two muntbs, from the day of service, may be obtaineii from tbe deputy registrar. If two montbs elapse tbe order is obtained in chambers on nn ex parte application supported by tbe affidavit of service, and a certi6cate of tbe registrar or deputy registrar with whom tbe bill is filed, that no answer has been p«t in. If tbe bill be filed in Toronto, the certificate must bear date on the day of the motion ; if in an outer country, at the latest possible moment. An application for an order pro «07i/(jaso0rtunot be'niiade ex parte vvb«!c more than six months from the service of the bill have elapsed, and notice of tbe motion must be served, Brown v. Baker, Cham. R. 1 ; but in o6m-^ ORlffck xiji^ SEC. 3. ^S luting the six moafhs, the time of the long yadatioD is not reokondd, 8. n Hot tbe taoda of prooeeding -where the in^t d«8ire« to have ».|^i]ardiaiv appointed for him to defend a suit, see Ord. 49. The motion for appointment of a guardian ad litem is made in chambers, Ord. 84 8. 1 ; but where the bill is filed in the oflSce of a deputy registrar, he has pover to hear and dispose of an application for that purpose, Ord. 44 «. 4. 6. Where the plaintiff has proceeded under either sec- tion 7 or 8 of Order IX., and the defendant has neglected to answer or demur to the bill within the time limited in that behalf, in either ease the plaintiff may apply to the court, expartCy for an order to take the bill pro confesso against such defendant ; and the court being satisfied of the due publication of the order and notice in that behalf prescribed, may direct the bill to be taken pro confesso against such defendant, if it think fit, either immediately or at such time, and upon such terms, and subject to such conditions, as the court, under th^ circuinstances of the case, may think proper. Upon the applicatiun under this sectiuu, the Judge must be satisfied that the advertisement has been published in strict conformity with the re- quirements of the order authorizing such publication, and that no answer has been filed, the newspapers containing the advertisement must be pro- duced, Ooodfellow V. Hambly, Cliam. R. 62 ; and it is necessary to shew that the defendant cannot be found to serve him with notice of motion, Qilmour v. Matthew, 4 Grant 3*76 ; McCarty v. Weasels, Cham. R. 6. 7. An order to take a bill pro confesso against a defen- dant does not require to be served ; and all further pro- ceedings in the case may be ex parte as to such defen- dant, unless the court order otherwise. -. ,. Where six years Lad elapsed after the oniei pro confesso was obtained, and no proceedings had been taken since, leave was given to the plaintiff to set the cause down for hearing, giving llie defendant notice forthwith of the proceedings, Cryne v. Doyle, Cham. R. 1. 'Wliere after a bill has been taken pro confesso, but before any decree is. drawn up, the defendant intervenes uud is a pa-.ly to proceedings between the plaintiff and defendant, that is not such a ca^a is is contemplated by the above section whei-e nil proceedings in the cause may be taken ex parte, Strachan v. Murney, C Grant 284. < . ; . 8. A plaintiff may move ex parte for leave to amend the bill, without prejudice to an order to take the bill C ;« c :z < < r c V. 78 ORDER XIT. SECS. 1, 2. I ill m ' pro confesso ; and where the court is satisfied that the rights of the defendant will not be prejudiced by such an order, it may direct the same accordingly. Unless leave to amend is asked for and obtained under this section, the order jDro confeaso is discharged by the amendment, but it is so even though the amendment is only to correct a clerical error, Wcightman v. Powell, 12 Jur. 958 ; and see I'hrasher v. Connolly, 1 Grant 422. Where the plaintiff had obtained an order jsro confeaso against cue of the defendants, and afterwards applied to amend by adding parties without, prejudice, the motion was refused, Herchmer v, Benson, 1 Grant 92. XIV. — Pro Confesso — Hearing Decree. 1 . Where a bill has been ordered to be takenjpro confesso against all parties defendant, the cause may be set down to be heard at any time after the expiration of three weeks_Jrom the d ate of such o rder, unless the Court thinks fit to appoint a special day for the hearing thereof* Cases are down to be heard pro confesso for any Tuesday, but three weeks must intervene between the date of the order pro confesso, and the day for which the cause is set down ; and the cause must be entered with the registrar, at least ten days before the day on which it is to be heard, Ord, 67. Where an order to take the bill />ro confesso had been obtained six years before, and no proceedings bad since been taken to bring the cause to a hear- ing, leave was given to the plaintiff to set down the cause for hearing,, giving the defendants further notice of the proceedings, Cryne v, Doyle, Cham. R. 1. ,; , ,, ,. . . 2. A defendant against whom an order to take a bill pro confesso has been made, is at liberty to appear at the hearing of the cause ; and if he waives all objection to the order, but not otherwise, he may be heard to argue the case upon the merits as stated in the bill, (Eng. Con^ Orrf. 22, r. 7.) A defendant appearing under this section must waive all objections,. Oreaves v. Greaves, 12 Beav. 422 ; but he may shew that the bill is open to demmurer for want of equity, Greig v. Green, 6 Grant 240 ; 8 TJ. 0. L. J. 218. Even though the defendant does not appear, the bill will be- dismissed, if the plaintiff appears to have no equity, Speidall v. Jervis, 2 Dick. 632 ; and the Court will not hear any affidavits against the bill as confessed ; the order pro confesso must first be set aside, Manley v. Willicms, 6 U. 0. L. J. 168. ORDER XIY. SECS. 3, 4, 5. 79 3. Upon the hearing of a cause in which a bill has been ordered to be taken pro confesso, such a decree is to be made as the Court may think just ; and the decree so made is to be absolute in the following cases, viz : — (1.) When an office copy of the the bill has been served personally. (2.) When notice of motion to take the bill pro confesso has been served under the third section of the next preceding order. (3.) When the defendant has appeared at the hearing, and waived all objection to the order to take the bill ^ro confesso. .. . , Thfi plaintiff to obtain a decree must establish his right to the relief Bought, Lloyd V. Lloyd, 4 Dr. & War. 854 ; Sta.' / v. Bond, 6 Beav. 420 ; plaintifiF cannot take such a decree as he can abide t*\ , but such as shall be just, Collins V. Collyer, 3 Beav. 600 ; Haynes v. Bail. 4 Beav. 101. f 4. A decree founded on a bill .ifen pro coafesso is to be passed and entered as other decrees, ' Eng. Con. Ord* 22, r. 10. It is essentially requisite to the perfect couipletion -if every decree, that it should be passed and entered, Druminond v. Anderson, 3 Gratl 150. All proceedings under a decree or order before it is entered, are irre- gular, Tolson V. Jervis, 8 Beav. 364. 6. After a decree founded on a bill taken pro confesso has been passed and entered, if the decree be not abso- lute under section 3 of this order, an office copy thereof may be served on the defendant against whom the order to take the bill pro confesso has been made, or his soli- citor, together with a notice to the effect that if such defendant desires permission to answer the plaintiff's bill and set aside the decree, application for that purpose must be made to the Court within the time specified in such notice, or that such defendant will be absolutely excluded from making such application. If such notice as aforesaid is to be served within the jurisdiction of the Court, the time therein specified for such application to be made by the defendant, is to be three weeks after service of such notice ; but if such notice is to be served out of the jurisdiction, the time is to be specially appoint- C 7: •X' C/-J W" i V 6ia oRDisB xnr. sEcs. 6, 7. i is^ ed by the Court upon the ex parte application of t^ie plaintiff. {Eng. Con. Ord. 32, rr. 11 & 12.) li^here^^ a bill wat^ takt^a jf^o confffso, against a trustee who had qq inter- est, and resided abroad, service on hun of the decree was dispensed with, Benhow v. Davies, 12 Beay. 421. Sorvice on a defendnnt out of the jurisr diction of the order limiting the time 'within T.^;iich he may apply to set a^ide t!ie decree is a sufiluiciit notice under this rule, TriUy v. Keefe, !•> ^ neav. 83 ; 16 Jur. 442. !; i. 6. When a decree is not absolute under sec. 3 of this order, the Court may order the same to be made absolute, on the motion of the plaintiff. — (1) After the expiration of three weeks from the service of a copy of the decree on a defendant, where the decree has been served within the jurisdiction. (2.) After the expiration of the times limited by the notice provided by section i of this order. (3.) After the expiration of three years from the date of the decree, where a defendant has not been served with a copy thereof ; and such order may be made either on the first hearing of such motion, or on the expiration of any further time which the Court may allow to the de- fendant for presenting a petition for leave to answer the bill. {Eng Con. Ord. 22, r. 16.) Service of an order limiting; the time within which defendant might apply to set aside a decree pro confesso, held sufficient notice for the pur- pose of making the decree absolute, Trilly v. Keefe, 16 Beav. 83; 16 Jur» 442. If the plaintiff cann^^t serve the defendant, he must at the end of three years, when he applies to make the decree absolute, explain why it has not been served ; a previous application to dispense with service ia premature, James v. Rice, 5 DeG. M. <& G. 461. The Court cannot dispense with service till the expiration of the three years, Vaughan. v, Roger h, 11 Beav. 165. 7. Where the decree is not absolute under section 3 of this order, and has not been made absolute under section 6, and a defendant has a case upon the merits not appear- ing in the bill, he mny apply to the court by petition, stating such case, and submitting to such terms with respect to costs and otherwise as the court may think reasonable, for leave to answer the bill ; and the court, ORDBR XIV. 8ECS. 8, 9. ai being satisfied that such ease is proper to be submitted to the judgment of the court, may, if it think fit, and upon such terms as may seem just, vacate the enrolment (if any) of the decree, and permit such defendant to answer the bill ; and if permission be given to such de- fendant to answer the bill, leave may be given to file a separate replication to such answer, and issue may be joined, and witnesses examined, and such proceedings had as if the decree had not been made, and no proceedings against such defendant had been had in the cause. {Eng, Can. Ord. 22, r. 16.) Permission given under this rule in a foreclosure suit on terms of pay- ing plaintiff's coats of the application, and of the suit, Inglis v. Campbell, % W. R. 896. ? 8. A defendant waiving all objection to the order to Ifake the bill pro confesso^ and submitting to pay such costs as the court may direct, may have the case reheard upon the merits stated in the bill ; the petition for re- hearing being signed by counsel as other petitions for rehearing. AH rehearings of cases are to be within six months after the decree or decreetal order shall havu been passed and entered ; or within such further time as the Gourt or a Judge thereof may allow upon special grounds, Ord. 96; as to the rehearing terms, Ord. 86 ; length of notice of rehearing, Ord, 92 ; and as to the deposit neeeseary, Ord. 43, s. 7, 9. In pronouncing the decree the court, either upon the case stated in the bill, or upon that case and a pe- tition presented by the plaintiff for the purpose, as the case may requi/e, may order a receiver of the real and personal estate of the defendant against whom the bill has been ordered to be taken pro confesso to be appointed, with the usual directions, or direct a sequestration of such real and personal estate to be issued ; and may, if it appears to be just, direct payment to be made out of such real and personal jstate of such sum or sums of money as at the hearing or any subsequent step in the C % C ■Mr < C/'J < r C V. 82 ORDER XT. SEC. 1. li; i m "(I f.ause the plaintiff may seem to be entitled to ; provided that, unless the decree be absolute, such payment is not to be directed without security being given by the plain- tiff for restitution, if the court afterward think fit to order restitution to be made. (Eng. Con. Ord. 22, r. 9.) The plaintiff 's own bond held HuflSeisnt security for the restitution of property taken under a sequestration after bill taken pro confesso, Lett v. Randall, 1 Jur. 1076 ; for form of decree in Puch a case, see Torr v. Tort. Johns. 660. 10. The rights and liabilities of any plaintiff or de- fendant under a decree made upon a bill taken fro confesso extend to the representatives of any deceased plaintiff or defendant at the time when the decree was pronounced ; and with reference to the altered state of parties and any new interests acquired, the court may,, upon motion, served in such manner and supported by such evidence as under the circumstances of the case the court deems sufficient, permit any party, or the represen- tative of any party, to adopt such proceedings as the nature and circumstances of the case may require, for the purpose of having the decree (if absolute) duly exe- cuted, or for the purpose of having the matter of the decree and the rights of the parties duly ascertained and determined. {Eng. Con. Ord. 22, r. 17.) XV. — Motion for a Decree to Administer the Es- tate OF A Deceased Person, without Bill filed. 1. Any person claiming to be a creditor, or a specific, pecuniary, or residuary legatee, or the next of kin, or some one of the next of kin, or the heir, or a devisee interested under the will of any deceased person, may apply to the court upon motion, without bill filed or any other prelimi- nary proceeding, for an order for the administration of the estate real or personal of such deceased person. The notice of motion in such case is to be in the form or to the effect set forth in schedule H, hereunder written, and must be served upon the executor or administrator, // " ORDER XV. SEC. 1. 83 as the case may be, of such deceased person at least four- teen days before the day fixed for hearing the application. Upon proof by affidavit of the due service of such no- tice of motion, or on the appearance in person, or by his solicitor or counsel, of such executor or administrator, and upon proof by affidavit of such other matter, if any, as the court may require ; the court, if it think fit so to do, may make the usual order for the administration of the estate of the deceased, with such variations, if any, as the circumstances of the case may require, and the order so made shall have the force and effiict of a decree to the like effect, made on the hearing of a cause between the same parties. The court is to give any special directions touching the carriage or execution of any such order as, in its discre- tion, it may deem expedient ; and in case of applications for any such order by two or more persons, or classes of persons, the court may grant the same to such one or more of the claimants, as it may think fit ; and the car- riage of the order may be subsequently given to such party interested, and upon such terms as the court may direct. {Imp. Act, 15 fy 16 F., c. 86, s. 46.) The proceedings under this order are intended for simple cases onlj, Acaster v. Anderson, 19 Beav. 161 ; Rump v, Oreenhill, 20 Beav. 612; and where executors are charged with misoonduot, a bill must be filed, Re BaftcocAr, 8 Grant 409. ' ' ' ' ' Executor is not chargeable with breach of trust in a suit by administra- tion summons, but enquiries may be directed as to value of the property in question, jRe 2>«/avan^e, 6 Jur. N. S. 118; and an executor cannot be charged on admission of assptg, Re Wiltshire, 8 W. R. 183. On administration summons cerliticate reporting wilful default disallowed, Blakdey v. Blakeley, 1 Jur. N. S. 368 ; defendant not chargeable with wilful (default, Re Fryer, 8 K, A J. 311 ; 26 L. J. Ch. 398 ; Partington v. Reynolds, 4 Jur. N. S. 200 ; Harrison v. McGlashan^ 1 Grant 531. Where in administration on summons a case of wilful default comes to light, a receiver and injunction may be granted for the protection of the property, Brooker v. Brooker, 3 Sm. <& G. 476. After an order made i pon summons the court will stay an action at law against the executor, as after a decree obtained upon a bill, Oardntr v. Garrett, 20 Beav. 469. c C < C/-3 r C cnJ V. 64 ORDER ZY* SEOS. 9, 3. Administration may be ordered on summona, of effects bequeathed hj a married woman under a power, Sewell v. Ashley, 8 DeG. M. & Q. 983. Executors having objected to pay into court a sum of money, on the ground that it had been paid to their solicitor for watching and protecting the interest of the estate upon claims of creditors brought into the Master's office ; held that they were entitled to do so ; as it is the duty of the exe- cutors to protect and look after the interest of the estate upon these en- quiries, and this they do not strictly as accounting parties, but in virtue of their representative character. Re Bahcock, 8 Orant 409. After notice of motion served for an order to administer the estate of an intestate, a commission may be obtained for the examination of witnesses, with a view of establishing the fact that the party applying for the order is one of the next of kin of the intestate, Farrell v. Cruikshank, Oham* B. 12. Notice of motion for an administration order having been served on the widow of the intestate as administratrix, the application was refused, there being no evidence produced that letters of administration had been granted to her, Fowler v. Marshall, Oham. R. 29. A motion having been made, upon notice, for an administration order, the order not having been drawn up and no steps having been taken for four years, an application in chambers for a direction to the registrar to draw up the order, was refused, and new notice required to be served, Re Forrester, Oham. B. 29. Where several suits are instituted for admmistration of a testator's es- tate, and a question arises as to their amalgamation, and the conduct of the cause, the preference will be given to a residuary legatee, or other person who has an interest in the residue, in preference to a creditor. Penny v, Francis, Woodhatch v. Francis, 7 Jur. N. S. 248. 2. An order for the administration of the estate of a de- ceased person may be obtained by his executor or admin- istrator, as the case may be, and all the provisions of the first section of this order are to extend to applications by an executor or administrator under the present section. Where the executor or administrator applies under this order, the court will direct an enquiry as to wilful default, Ledgerwood v. Ledgerwood, 1 Grant 584. An executor or administrator has no right to file a bill merely to obtain an indemnity by passing his accounts under the decree of the court ; there must be some real question to submit to the court, or some dispute requir- ing interposition, when he will be entitled to his costs; otherwise he will not receive them, White v. Cummins, 8 Grant 602. 3. The costs attending the administration of the estate of a deceased person under the preceding sections of this ORDER rVI. SBC. t. 85 order, are to be borne by such estate, unless the court shall direct otherwise. Where in an admiDistration suit the whole of the real and personal estat* of the intestate was insufficient to pay the creditors, the heir at law and administratrix were allowed their costs as between solicitor and client, Tardrew v. Howell, Parry v. Howell^ n Jur. N. S. 987 ; 9 W. B, 296. A party appealing from a decree in an administration suit suocessfuUy, waB allowed the costs of the appeal out of the estate, Menzie* v. EUUejf, 2 Grant 644. Costs ought to be given out of the estate, for those proceeding only which are commenced for the benefit of the estate, or which have in their result been of benefit, Bartlett v. Wood, 9 W. R. 817 ; see also as to costs, Mad- dison V. Chapman, IJ. & H. 470 ; Barnewtll v. Iremonger, 1 Dr. <& Sm. 266 ; Sullivan v. Sevan, 20 Beav. 899. XVI. — Motion for a Decree after Time for answer- ing HAS expired. 1. The plaintiff in any suit, at any time after the period allowed to the defendant for answering has expired, but before replication, may move the court for such decree or decretal order as he may think himself entitled to; and the plaintiff and defendant respectively may file affi- davits in support of and in opposition to such motion, and may use the same at the hearing thereof; and when such motion is made after an answer filed in the cause, the answer, for the purpose of the motion, is to be treated as an affidavit. Notice of the motion is to be served upon the defendant or defendants at least three weeks before the day fixed for the application. Within ten days from the service of the notice the de- fendant must file his affidavits in answer. Within six days after the expiration of such ten days the plaintiff is to file his affidavits in reply, and except so far as these affidavits are in reply, they are not to be re- garded by the court, unless upon the hearing of the mo- tion the court shall give the defendant leave to answer them ; and in that case the costs of such affidavits, and of C c < 5 C '20 mr-rr ^^} V ■■'■ m> ii i 86 OBDEB XTI. SEC. 1. the further affidavits consequent upon them, are to be- paid by the plaintiff, unless the court order otherwise. No further evidence, on either side, is to be used upon the hearing of such motion, without the leave of the court. Upon hearing the application, the court, in its discre- tion, may either grant or refuse the motion, or may give such directions for the examination of either parties or witnesses, or for the making of further enquiries, as the circumstances of the case may require, and upon such terms as to costs as it may think right. {Imp. Act, 15 ^ 16 Vic. c. 86, M. 15 ^ 16 ; and Eng. Con. Ord. S3, rr, 4, 6, 6, 7, fy 8.) This order, though not repealed, ia of very limited applioatioD, as mo- tions for decree are now permitted in only three classes of cases : 1st. Whero. there is no evidence; 2nd. Where the evidence consists only of documents, '. and suth affidavits as are necessary to prove their execution or identity, without the necessity of any cross examination, and 3rdly. Where infants are ooncerned, and evidence is necessary only so far as they are concerned for the purpose of proving facts \r'iich are not disputed, Ord. 68, s. 2 ; but this latter order does not apply to cases in which the court would grant leave to serve short notice of motion for decree in order to prevent irrepar- able injury, Ibid, Where notice of motion for a decree is given, the cause must be set down to be heard not less than tea days before the day for which such notice i» given, Ord. 68 s. 1. , i ,,,. . ;, . ■ By consent the cause may to be heard before the expiry of the three weeks, Loinsworth v. Rowley, 10 Hare, A pp. 66. All the affidavits upon which the notice of motion is founded must be filed before the notice is served, Ord. 43, s. 2 ; if any affidavits filed before the date of the notice of motion are to be read they should be specially mentioned in the notice, Clement v. Griffith, Coop. 470. The answer of a defendant may be read against himself without notioe, Cousins V. Vasey, 1 W. R. 161; Dawkinsv. Morton, 1 J. <{c H 339; but the defendant cannot read it, unless the plaintiff read part of it ; plaintiff and defendant cannot read against each other the answer of another de- fendant without notice, Stephens v. Heathcott, 6 Jur. N. S. 812; and see, Wright v. Edwards, 1 W. R. 193. The answer of a company which is not sworn, cannot be read as evi- dence, Wadeer v. East India Go., 9 W. R. 251. Witnesses may be examined orally if the names of the persons to bo ex- amined are appended to the notice, Pellatt v. Nicholls, 24 Beav. 298; and if ' I' ^1^ ORDERS XYII. XTIII. m a notice to cruBa-exninine given after the time fur filing affidavits in replyy is regular, Bedwell v. Prudence, I Dr. prove the service of notice of his answer being filed, Kay v. Sanson, Cham. R. 1l. In Jonen v. Jones, 1 Jur, N, S., 863, this was held unnecessary, but the court has refused to act upon this case as rendering this order inoperative. The omisbion to serve notice does not entitle the opposite party to treat the pleading as a nullity or as irregular. Smith ». Muirhead, 2 Grant 896. Where a month elapsed between the filing of the replication and serving the notice, the replication was ordered to be taii«:Q off the files, Johnson v. c < '< C V 90 ORDER XX. SEC. 1. Tucker, 15 Sim. 699 ; but tb« proper course seemt* to be Dot to move to take it ofiF the files, but to move to eiilaige the timo for taking the next step in the cause, Wright v. Angle, 6 Hare. 107 ; Lloyd v. Solictors Life 4uuranee Co., 8 W. U., 640. In this case V. C. Wood, to discourage the practice of such auaimary upplicatious ou a mere slip, refused to give any OOStB. XX. — Evidence to be used at the Hearing. 1. Either plaintiff or defendant may at any time after answer, or when the application is on behalf of the plain- tiff, after the time for answering has expired, obtain an order of course upon precipe, requiring the adverse party to produce, within a time to be limited by the order, all deeds, papers, writings, and documents in his custody or power, relating to the matters in question in the cause, under oath, and to deposit the same with the registrar of the court, for the usual purposes. But neither plaintiff nor defendant is to be held bound to produce, in pursuance of such order, any deeds, papers, writings or documents, which a defendant now admitting the same by his answer to be in his custody or power would not be bound to produce. An order obtained by a defendant before he has filed his answer, unless by special leave of the court is irregular and will be discharged. When a demurrer has beeu filed, the plaintiff is not entitled to an order to pro* duce pending the argument of the demurrer, Jieidv. Baldmn, V. G. Esteo. 22nd August, 1861. A defendant is not entitled to an order for the production of documents by a co-defendant. Attorney General v. Chapham, 10 Hare, App. 68 ; Wynne v. Humberaton, 5 Jur. N. S, 5 ; but after decree defendant can com- pel production by a co-defendant, Hart v. Montefiore, 10 W. R.. 97. The usual time limited by the order is four days, and it is not necessary to serve the defendant personally; service on his solicitor is sufficient. If the order be not obeyed, the party requiring production, may, upon producing the order with proof of service, and the certificate of the regis- trar that it has not been complied with, obtain on an ex parte application in chambers an order nini against the party in default This order must be served personally and should be endorsed with the notice required by Ord. 46, 8. 6. If this order be disobeyed also, an attachment will issue and the party refusing to produce may be committed to close custody under it for contempt. As the order exempts fiom production all documents which a defendant ORDER XX. SKC. 1. 91 would not have been compelled to produce under the former practice, it is proper to consider what tbat practice wan. Uoder the former practice it was neceaeary before the plaintiff could obtain production, that the document of which production is sought, should be admitted by the defendant's answer to be in his possession. Whatever discovery a defendant would have been bound to give by answer, with respect to documents in his possession, must now be furnished by the affidavit on production, and the ground upon which he relies to ex- cuse production must be stated with the same particularity, Nicholl v. Elliott, S Grant 586. Where the defendant alleges, that the documents were in the possessioa of his solicitor, who claimed a ' c»n on them, and that he could not obtain possession of them, production was ordered, Rodick v. Gandeil, 10 Bear. 270; but see Palmer v. Wright, 10 Beav. 234. Where the documents were in the possession of the defendant's solicitor, as solicitor for him nnd for other persons not before the court, production was reftfbed, Cridland v. Lord DeManley, 18 Jur. 442 ; and the same as to documents in possession of an agent, for the defendant and other persona not parties to the cause, Lopez v. Ifeacon, 6 Beav. 254 ; Airey v. Hall, 12 Jur. 1043. Where a defendant admitted documents to be in his possession, subject to an undertaking to a third party not to part with the possession, production was ordered, Penkethman v. White, 2 W. R., 380. If it clearly appear that the documents do not relate to the plaintiff's title, the court will not order production ; but to protect them from pro- duction by the defendant, it is not sufficient that the documents are evidence of his title, they must contain no matter supporting the plaintiff's title or case, or impeaching the defence. Combe v. Corp. of London^ 1 Y. «t 0. 681 ; Marquis of Bute v. Glamorganshire Canal Co., 1 Phill. 681 ; and there must be a positive averment to that effect ; speaking as to information or belief is insufficient, Harris v. Harris, 4 Hare. 179 ; Bannatyne v. Leader, 10 Sim. 280 ; Edwards v. Jones, 9 Jur. 145. As a general rule a plaintiff in Equity is entitled to a discovery not only of that which consti* tutes his own title, but also of whatever is material to repel the case set up by the defendant, and as part of that discovery, to the production of such documents as are material for the same purpose, Lawlor v. Murchison, 8 Grant 568. A defendant is not bound to set forth a list of documents in his possession relating to his own title, Sutherland v. Sutherland, 17 Beav. 209. As a general rule a party is not bound to produce documents which are to be considered as confidential communications made between solicitor and client, acting merely in the relation of solicitor and client, and which took place either in the progress of the suit, or with reference to the suit previous to its commencement. Flight v. Robinson, 8 Beav. 22 ; and see Claggett v. Phillips, 2 Y. . i'J'. : iSr (■> This Bection applies to suits in '.vhich replioatiou ia filed and which ar« brought to a hearing in the ordinary way, not to causes heard by way of mction for a decree under Ordert 16 & 17. 6. Any witness who has made an affidavit filed by any party to a cause, to be used at the hearing thereof, is to be subject to oral cross-examination before the court or a deputy master, or an examiner specially appointed for that purpose, in the san^e manner as if the evidence given by him in his affidavit had been given by him orally ; and such witness is to attend before the court, or deputy master, or examiner, as the case may be, upon being served with a writ of subpoena ad testificandum or duces tecum ; and the expenses attending such cross-ex- amination and re-examination are to be paid by the par- ties respectively in like manner as if the witness to be cross-examined were the witness of the party cross-exam- ining. and are to ue deemed costs in the cause of such parties respectively, unless the court think fit to direct otherwise. Any party desiring to cross-examine a witness who has made an affidavit in any cause, intended to he used at the hearing thereof, is to give forty-eight hours' notice to the party on whose behalf such affidavit has been filed, or to the party intending to use the same, of the time and place of such intended cross-examination, in order that such pariy may, if he think fit, be present thereat. The re-examination of any such witness is to follow immediately upon the cross-examination, and is not to be delayed to any future time. > i ;; By a more recent order it is provided, that all examinations, out of ex- amination term, of parties or witnesses, whether in a suit or any matter or otherwise are to be taken before a deputy master, or before a special examiner appointed for that purpose, unless the Court or a jud^je in chambers shall otherwise order upon application to be made for that pur- pose, which may be ex parte, but must be supported by affidavits settiog forth the special grounds upon which it is madi>, Ord. 65. Documents used on the examination of witnesses before an examiner must be properly marked by the officer, and referred to in the evidence. ORDERS XXI. XXII. 95 otherwise they cannot be read at the hearing, Hollywood v. Water$, 6 Grant 329. The examiner ia not to judge °what evidence is relevant or adverse, Buckley v. Cooke, 1 E. b« so examined, no person affected by her evidence can object, Peterborough v. Conger, Cham. R. 86. 2. Any party defendant may be examined as a witness as heretofore, upon order for that purpose, on behalf either of the plaintiff, or of a co-defendant, upon points as to which the party to be examined is not interested. And any party plaintiff' may be examined, under similar circumstances, by a co-plaintiff" or by a defendant. Pro- vided, that where any party having an interest has been examined under this order, such evidence is not to be used on behalf either of the examining party, or of the party examined, but may be struck out at the hearing, at the instance of any party affected thereby; but such ■p ORDBB XXn. SEC9. 3, 4. 97 a •examination is not to preclude the court from making decree, either for or against the party examined. Since the pauing of the above order the practice has been varied, and now any party defendant may be examined as a witness without order, on behalf either of the plaintiff or of a co-defendant — and any party plaintiff may be examined as a witness without order by a co-plaintiff, or by a defendant in cases where under the prebent practice such examination may be had upon the common order being obtained for that purpose, Ord. 89. 3. Evidence taken under the first section of this order may be rebutted by adverse testimony ; and any party examined as therein provided, may be further examined, on his own behalf, in relation to any matter respecting which he has been examined in chief. And v/here one of several plaintiffs or defendants, who are joint con- tractors, or united in interest, have been so examined, any other plaintiff or defendant, so united in interest, may also be examined on his own behalf, or on behalf of those united with him in interest, to the same extent as the party actually examined. Provided nevertheless, that such explanatory examination must be proceeded with immediately after the examination in chief, and not at any future period, except by leave of the court. 4. Any party to the record who admits, upon his examination, that he has in his custody or power any deeds, papers, writings, or documents relating to the matters in question in the cause, is to produce the same for the inspection of the party examining him, upon the order of the court, or of the deputy master, or examiner, as the case may be, before whom he is examined, and for that purpose a reasonable time is to be allowed. Either party may appeal from the order of such deputy master, or examiner ; and thereupon such deputy master, or examiner, is to certify under his hand the question raised and the order made thereon ; and the costs of such appeal are to be in the discretion of the court. But no party shall be obliged to produce any deed, paper, C X c < pTi 'SI V ill A 03 OBDER XXII. 8ECS. 5, 6, 7. writing, or documents which would have been protected under the previous practice. 6. Any person refusing or neglecting to attend at the time and place appointed for his examination unde/ the first section of this order may be punished as for a con- tempt ; and the party who desires the examination, in addition to any other remedy to which he may be en- titled, may apply to the court, upon motion, either to have the bill taken pro confesso, or to have it dismissed, accord- ing to circumstances ; and the court, upon such applica- tion, may, if it think fit, order either that the bill be taken pro confesso, or that it be dismissed, as the case may be ; and when, from the circumstances of the case, such order cannot be made consistently with the rights of other parties to the suit, then the court may make such order as to the enlarging the time for passing publication, or otherwise, as may seem just. m * . '. Where a defendant refused to attend before commissionerB appointed to take his evidence abroad, an order to set the cause down to be taken pro confesso was made, Prentiss v. Bunker, 4 Grant 280. , , 6. When the examining party uses any portion of the evidence taken under the first section of this order, (but not otherwise,) then it shall be competent for those against whom it is used to put in the entire evidence so taken, as well that given in chief, as that in explanation. ?, , 7. Any party plaintiff examined under the first section of this order may be so examined at any time after answer ; and any party defendant may be examined at any time after answer, or after the time for answering has expired, as the case may be ; and such examination may be had without reference to the examination terms hereinafter established. , ■ A defenditiit may be examined viva t^oee in support of amotion, notice of •which hiia beon fi;iven, altliougli the time lor answering has not expired, McClennnfjIian v. Buchavan, 7 Giiuit 92. The examination of a defendant under this order is a substitute for tlie discovery by answer; the depositions of the (lefendnnf. iHken nmler this order m-^y J>«» rend nt the heaving, and ORDER XXIY. 8ECS. 1, 2. 99 it is not necessary to call him as a witness at the ezamination of 'witnetses, Proctor V. Orani, 9 Grant 81 ; and the examination of a plaintiff by a de« fendant would be equally admissible at the hearing, Ibid. After the cause has been set down for hearing, the plaintiff cannot examine the defendant upon his answer, per Y. 0. Esten, Barton v. Lewii^ 8rd Feb. 1868. XXIV. — Dismissal op the Bill for Want of Prosecution. 1. Any defendant may move Ihe court, upon notice, that the bill may be dismissed with costs for want of prosecution, and the court may order the same accord- ingly in the following cases, viz: (1.) If the plaintiff, not having obtained an order to enlarge the time, does not obtain and serve an order for leave to amend the bill, or does not file the replication, or set down the cause to be heard on bin and answer, within one month after the answer, or the last of the answers has been filed ; or (2.) If the plaintiff, not liaving obtained an order to enlarge the time, does not amend the bill within fourteen days after the date of the order for leave to amend ; or (3.) If the plaintiff, not having obtained an order to enlarge the time, does not set down the cause to be heard, and serve a notice of hearing within one month after publication has passed. If the plaiutiflf neglects to set the cauae down to be heard within one month after publication has passed, any defendant may set the cause down, and serve notice of hearing on the parties to the cause, Ord. 57, 8. 6. 2. Where the plaintiff has amended his bill, after answer, any defendant may move the court upon notice, that the bill may be dismissed with costs, for want of prosecution ; if the plaintiff, not having obtained an order to enlarge the time, does not file the replication, or set down the cause to be heard on bill and answer, within the times following, viz: — (1.) Within fourteen days after service of the notice of the amendment of the bill, where no answer has been filed, and the defendant ■Ca.. c ^ ■ c a; :x c < < Cd Ill 'i'il V 100 ORDER XXIT. SEC. 2. has not obtained or applied for time to answer. (2.) Within fourteen days after the refusal of an application for further time, in cases where the defendant, desiring to answer, has not put in his answer within seven days after service of the notice of the amendment of the bill, and the application for further time has been refused. (3.) Within fourteen days after the filing of the answer, in cases where the defendant has put in an answer to the amendments, unless the plaintiff, within such fourteen days, has obtained leave to re-amend the bill. Tn computing the time, the plaintiff is entitled until 12 o'clock at night of the Insl day, therefore a notice of motion served on that day is prema- ture, and will be discharged with costs, Preston v. CollHt, 20 L. J. 228 ; and if notice be given too early the defect is not cured by an accidental postponement of the motion, LeOeneve v. Hannam, 1 R. <& M. 494. If the defendant be in contempt ho cannot move, Anon, 15 Ves. 174. The general rule is that each defendant is entitled to make the applica- tion independently and without any reference to the state of the proceed- ings as between the other defendants and the plaintiff, Lester v. Archdale, 9 Beav. 166; Barl of Mornington v. Smith, 9 Beav. 250; Jones v. Mor- gan, 12 Jur. 888. In this order the words ''last answer" moan, not the answer of the last defendant, but the last answer of the particular defend- ant moving to dismiss, Dalton v. Hayter, 1 Beav. 686 ;. Sprye v. Reynell, 10 Beav. 851. Thus one defendant may move though his co-defendants may not have put in their answers, Lester v. Archdalc, 9 Beav. 166; but the court will not make the order if the plaintiff can shew that he has used due diligence to get in the answers of the other defendants. And it is not enough for the plaintiff to shew that the answers of the other defendants have not been filed, he must also shew that he has used due diligence to have them served, and to get in their answers, Baldwin v. Darner, 11 Jur. 728 ; Stiyiton v. Taylor, 4 Hare 608 A defendant who is in a position to move to dismiss, cannot do so if a co-defendant appearing by the same solicitor has not filed his answer, Winthorp v, Murray, 1 Hare, 1 57 ; and see Jiees v. Jacques, 1 Grant 362. A motion to dismiss pending an order to amend is irregular, Emerson i). Emerson, 12 Jur. 978 ; but not where the order was that in default of amendment tlie bill should ipso facto stand dismissed, Dobede v. Edwmrdi, 11 Sim. 464. The plaintiff upon being served with notice of motion to dismiss after answer, and before the cause is at issue, should either tile a replication and tender to the defendant the costs, or apply specially for leave to amend, Flndlay v, Lawrence, 11 Jur. 705 ; or appear upon the motion and ask for such terms as the state of the cause may justify. ORDER XXIV. SEC. 3. 101 Where the plaintiff files replication before the motion is heard, the only order which the court will make is that he pay the cosits of the motion Carry v. Gurlewis, 8 Beav. 606 ; and if the piaintitf in addition to replying tenders the costs of prepanng and serving the notice of motion, the defend* ant should accept them, for if he bring on his motion he will be ordered to pay the costs of it, less the amount properly tendered to him, Wright v. Angle, 12 Jur. 84 ; Piper v. Gittens, 11 him. 282. If liberty to amend be given on special application, after tha notice to dismiss is served but before it is heard, the defendant may bring on his motion in respect of the costs, unless the plaintiff has tendered them, Findlay V. Lawrence, 11 Jur. 705. A motion to amend is no answer to a motion to dismiss tor want of prosecution, McNab v. Gwynne, 1 Grant 127. Tlie bill is rarely dismissed on the first motion unless there has been great delay, but the court usually accepts the plaintiff's undertaking to speed the cause. By giving thiH the plaintiS undertakes to go to examina> tion at the next term, and to u hearing at the close of publication. As a general rule the court will not on a motion to dismiss for want of prosecution, enter into the merits to determine whether the bill should be dismisf-ed without costs, but will cons^ider only the conduct of the parties to the cause in respect of its prosecution, Stagg v. Knmoles, 8 Hare 241. But under special circumstances, where it appeared inequitable that the defendant should either compel the plaintiff to proceed or submit to his bill being dismissed, the court has entered into the question, and dismissed the bill without costs, Pinfold v. Pinfold, 1081 ; Godday v. Sleigh, 8 W. R. 87; Sutton Harbour Co. v. Hitchena, J 5 Beav. 161; Wright v. Barlow, 6 DeG. &. S. 4a. 3. In every other case, where the plaintiff is delaying the suit unreasonably, any defendant may move the court, upon notice, that the bill may be dismissed with costs for want of prosecution, after the expiration of one month from the lime of filing liis answer, in case the plain- tiff, not having obtained an order to enlarge the time, does not obtain and serve an order for leave to amend the bill, or does not file the replication, or set down the cause to be heard, on bill and answer, within such month ; and upon the hearing of such motion, the court is to make such order for the dismissal of the bill, or for the expediting of the suit, or as to the costs, as under the circumstances of the case may seem just. If the motion be made by one of several defendants, it is not enough for the plaintiff to shew that he h,b- not j-ot in ihe -inswers of the other defen- dants, he must also shew ihiit, lie has used due diligence to have them ser- c cd r ij I'll i 102 OBOSR XXYI. red and to get in the answers, or take the bill pro eonfeuo against them, Earl of Momington v. Smith, 9 Bear. 261 ; Baldwin v. Darner, 11 Jar. 728 ; Stinton v. Taylor, 4 Hare 608, An injunction does not prevent a defendant from moving to dismiss for want of prosecution, Day v. 8nee, 8 V. <& B, 170 ; Jamet v. i7Jou, 8 Swanst. 284 ; Bliss v. Collint, 2 Jur. 62. The oourt may grant the plaintiff further time, but it is usual to do so only on terms as to the future conduct of the suit. An information by the Attorney General cannot be dismissed for want of prosecution, it is his privilege to proceed in what way he thinks proper ; but an information in bis name by a relator is subject to be dis- missed with costs for want of prosecution, DanieVs Chan. Pr. 20. On moving to dismiss, the registrar's certificate must not merely shew what proceedings have been taken, it must state that no further proceedings jiave been had, Thompson v. Buchanan, 3 Qiant 662. 4. In all cases where a person or party obtains an or- der from the court, or from a master, upon condition, and fails to perform or comply with such condition, he is to be considered to have waived or abandoned such order, as far as the same is beneficial to himself, and any other party or person interested in the matter, on the breach or non-performance of the condition, may either take such proceedings as the order in such case may warrant, or such proceedings as might have been taken if no such order had been made. {Eng. Con. Ord. 23, r. 22.) XXVI. — Legal Rights — How Decided. In cases where according to the present practice the court is in the habit of refusing equitable relief until the party seeking such relief has established his legal title or right in a proceeding at law, the court will itself de- termine such title or right without requiring the party seeking such relief to proceed at law to establish the same ; but the court may require the right or title to be established at law, whenever, in its discretion, it con- siders that course expedient. The court may now also try an issue of fact without the intervention of a court of law, Con. Stat. U, C, o. 12 s, 69. Where the court requires an action at law to be brought to establish the right or title of the party •eeking relief, an application for a new tiial must be made to the Court of ORDER XXVn. 8EC9. 1, 2. lOS Ijaw in vhlch the action is brought, and not to the Court of Chanoerj, Hope V. Hope, 10 Beav. 681. Where the claim of a creditor is disputed in an administration suit, the court cannot direct an action at law, but must try the whole qvestion, Bay- lit v. Watkifu, 8 Jur. N. S. 1165. XXVII. — Injunction to stay Proceedings at Law. 1. No injunction to stay proceedings at law is to be granted, for default of an answer to the bill ; but such in- junction may be granted upon interlocutory application, in like manner as other special injunctions are granted. Under this section the plainti£f is to have an injunction, not as of course, but only on an affidavit of merits, Senior v. Pritchard, 16 Beav. 473 ; Mag- nay V. Mines Royal Co., 8 Drew. 130 ; and to entitle the plaintiff to th« injunction, he must himself depose to the facts within his ovrn knowledge, and that he believes the other statements on which he relies to be true, Mollett V. Enequiat, 25 Beav. 609 ; but where the plaintiff is abroad, the affidavit may be made by his agent, Whitelegg v, Whitelegg, I Bro. 0. 0. 57 ; Lord Byron v. Johnston, 2 Mer. 29. Where plaintiff had replivsd at law to equitable pleas, injunction was refused, Far ebr other v. Welchman, 8 Drew. 122 ; and where a defendant in an action at law filed a bill to restrain pro- ceedings, alleging as grounds for relief, facts which, if they had been pro- perly pleaded, would have afforded a good defence at law, tlie court, with- out enquiring as to the merits of the case, dismissed the bill, Morrison v. McLean, 1 Grant 167. A notice of motion for injunction may be served at any time after the bill is filod ; even before service of office copy bill. A motion for injunction will be refused where the allegations and prayer of the bill have been framed for relief on other grounds than those upon which the application is founded, although the affidavits in support of the motion, contain sufficient to warrant the court in granting an injuuctioa, My V. Wilson, 7 Grant 103. A motion for injunction held abandoned by amending the bill pending the motion, Monypenny v. Bering, 1 W. R. 99 ; but sec Hawes v. Bamfordy 9 Sim. 653. Where a notice of motion for injunction is refused, the proper course is not to give the costs, as, if the suit fails, the plaintiff must pay the costs, and if it succeeds, the order at the heaving provides for the payment of them, Carriithars v. Armour, 7 Grant 34. . ,, 2. On any motion to obtain or dissolve a special in- junction, affidavits may be used either to support or con- tradict the answer. .; ,,. C j-ni C/'J v.'*. ,!»ii;'il|ii ; fw'VI! 104 ORDERS XXTIII. XXIX. As to the filing of the offidarits and the mode uf referring' to them in- the notice of motion, see Ord 40, b. 2, and notes. On moring for an injunction ex parte, the affidavits, on which the appli- cation is founded, must set forth all the fa'3ts and circumstances material for the court to know, or the injunction will be dissolved : even although the party moving did not consider the circumstance material, McJlmtttr V. Callaway, 6 Grnnt 577. XXVIII. Decrees merely D' claratort. No suit is to be open to objection on the ground that a merely declaratory decree or order is sought thereby ; but the court may make a binding declaration of right without granting consequential relief. {Imp. Acty 15 4^ 16 F., c. 86, 5. 50.) It has been held by L. J. Turner that the court has no power, under this order, to declaim future rights, Lady Langdale v. Briggs, S Jur. N. S; 982; and the court has refused to make declarations as to the interests of parties entitled in reversion, Oarlick v. Lawion, 10 Hare, App. 14; Oreenwood v. Sutherland, Ibid. 12. Such declaration will not be made except where necessary for the administration of an estate or in order to grant relief, Gosling v. Gosling, 1 John. 2*70 ; J'j/fe v. Arbuthnot, 1 DeG. ption, being in possessioQ of the premises foreclosed," Orti 69. ■ Tlie court will not mak • such an order agaiust the tenants of the mort- gagor or owner of the equity of redemption. An order for delivery of possession will not be granted ex parte, but no- tice of motion must be served ; even though the bill has been taken ^ro con- fesao. After the final order for foreclosure an order for delivery of possession will be granted, although not asked for when the final order was obtained, Lazier v. Ranney, 7 Grant 823. On moving to commit tor contempt in not obeying such an order, it must be shewn that possession was demauaed, Nevietix «. Labadie, Cham. R. 18. This section refers only to mortgage cases, and does not apply where the bill in n suit for specific performance is illsmissed at the hearing, Mavety v, Montgomery, Qh&va. ii. 2\ . i « 2. In any suit for the foreclosure of the equity of re- demption in any mortgaged property, the court, upon the request of the mortgagee, or of any subsequent incum- brancer, or of the mortgagor, or any person claiming un- der them respectively, may direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the court may think fit to direct, and, if the court so think fit, without previously determining the priorities of incumbrancers, or giving the usual or any time to redeem ; )»at if such reijuest be made by any such ORDER XXTII. SEC. 2. 109 subsequent incumbrancer, or by the mortgagor, or by any person claiming under them repectively, the court is not to direct any such sale without the consent of the mort- gagee, or the persons claiming under him, unless the par- ty making such request deposit in court a reasonable sum of money, to be fixed by the court, for the purpose of securing the performance of such terms as the court may think fit to impose. {Imp. Act^ 15 ^ 16 V. c. 86, s. 48.) Where after a mortgage being given, the equity of redemption is sever- ed, BO thtit different persons are entitled to redeem in respect of different parcels, these different persons must be made parties in a suit to foreclose the .nortgage, Buckley v. Wilson, 8 Grant 566. In cases in which the owners of the equity of redemption are numerous, the court may at the hearing or afterwards direct that the persons so inter* ested may be made parties in the master's office ; but such order can be made only when one or more of the parties interested in the equity of re- demption are already before the court, Ord. 10. Where portions of an estate under mortgage are conveyed away by the mortgagor, one day for payment of the amount will be given to all the persons interested in the equity of redemption. Hill v. Forsyth, 7 Graut 461. When a defendant at the hearing asked a sale instead of foreclosure, and the decree directed a sale which proved abortive, on petition which stated that any further attempt to sell would be followed by the same result, an order was made for payment in a month after service, and in < jfault, fore- closure, Goodall V. Burrowes, 1 Grant 449 ; Henderson v. Richmond, Ibid. Where the prayer of the bill is in the alternative for either sale or fore- closure, the court will, at the instance of the plaintiff, make a decree for sale, and in the event of a sale failing to produce sufficient to cover the plaintiff's claim, order foreclosure, Blackford v. Olivfr, 8 Grant 89). Some special ground must be shown to induce the oourt to depart from the ordinary rule of allowing six months for redemprion, Rigney v. Fuller, 4 Grant 198. The amouut to be deposited in court by a defendant asking a sale is £20, and he has fourteen days from the day of hearing within which to pay in the money, and if the deposit be not made within the fourteen days, the Z jree will be drawn up directing foi eclosure The court decreed a sale instead of a foreclosure, without requiring any deposit, where it was considered beneficial to the interests of an infant defendant, Ba7ik of Upper Canada v. Scott. 6 Grant 411 ; but now a sale is not granted to infants except on the usual terms ; though in somu cases a reference is directed to enquire whether a sale or foreclosure is most for their benefit. c < 0'3 r- .5 cd ill M\ ■md III V 110 ORDER XXXII. SECS. 3, 4, 5. In decreeB of foreclosure against infant defendants, a day to shew cause, after attaining tweuty-one, must be reserved to the defendants, Mair v. Kerr, 2 Grant 228 ; and the iinal order of foreclosure must also reserve a day to shew cause. , , The court may now require, as a condition, that the party asking a sale, shall conduct the same at his own expense, dispensing in such case with a deposit, Ord. 16 ; but the defendant is not entitled to insist upon a sale instead of a foreclosure against the consent of the mortgagee, without pay> ing in the usual deposit, upon his undertaking the conduct of the sale, Tat/lor V. Walker, 8 Grant 506. 3. Instead of foreclosure, the bill in any such suit may pray a sale of the mortgaged premises, and that any bal- ance of the mortgage debt which may remain due after such sale may be paid by the mortgagor, and the same may be decreed accordingly. The court will not make a personal order against the mortgagor under this section unless asked by the prayer of the bill. Where the decree directs foreclosure, the court may, on default in pay- ment, grant an order for sale without rehearing the cause, Laslett v. Cliffe, 2 Sm. & G. 278 ; overruling, Oirdlestone v. Lavender, 9 Hare, App. 53 ; see also, Wayn v. Lewis, 22 L. J. Chun. 1051. But the court will not after a decree for sale, order a foreclosure without rehearing the cause, unless sale has proved abortive. 4. When any person is surety for the payment of a mortgage debt, such person may be made a party to any suit for the foreclosure of the equity of redemption of the mortgaged property, and the relief specified in the last section may be prayed against both the mortgagor and his surety, and the same may be decreed accordingly. Where a mortijagt'e upou a transfer ot the morigage covenanted tliat if default were made in payment of the mortgage money, he would pay it ; he is not a surety within the nieauiiigot this section, Clarke v. Beat, 8 Grant 1 j the contract in such a case, is a contract of guarantee, and must be the subject of an action against the assignor, 76?d ^ 6. When a suit has been instituted for the foreclosure of the equity of redemption in any mortgaged property for default in the payment of interest, or of an instal- ment of the principal, any defendant may move to dis- miss such bill upon paying into court ihe amount then due for principal and interest, witi' costs. >\ ORDER XXXII. SECS. 6, 7. Ill Upon default in payment of any instalment of principal or interset, the mortgagee has a right to call in the whole amount secured by the rnort* gage. Sparks V. Redhead, S Grant SIT; Cameron v, McEae, Ibid; but a mortgagee who holds several mort^^agea in fee on the same land, one of which is not due, cannot file a bill to foreclose that mortgage with the others, Thibodo v. Collar, 1 Grant 147. "i*^ When a defendant moves to stay proceedings under this section, the interest is to be calculated up to the last gale day, and not up to the time of making the application, Strachan v. Murney, 6 Grant 878. 6. When a suit has been instituted for the purpose and under the circumstances specified in the last section, any defendant may move to stay the proceedings in the suit, after decree^ but before sale or final foreclosure, upon paying into court the amount then due for principal and interest, with costs. When an application is made to stay the proceedings under this section, the decree may afterwards be enforced, by order of the court, upon any subsequent default in the payment of any further instal- ment of the principal, or of the interest. After payment under this section of what is due, it is irregular to take any further proceedings in the cause until another instalment falls due, Carroll v. Hopkins, 4 Grant 431 ; as to period up to which interest is to be computed, see note to preceding section. Where a stay of proceedings has been ordered and default is made in payment of another instalment of interest, an order will be granted direct" ing payment of the whole sum secured, with liberty to the defendant to pay the sum now actually payable, and directing a stay of proceedings on such payment being made, Strachan v. Devlin, Cham. U. 8. 7. When the cause is heard upon an order to take the bill pro confesso, in a suit for the foreclosure of the equity of redemption in any mortgage property, the plaintiff is to produce at the hearing : — (1.) The mort- gage deed, and the assignments thereof, if any. (2.) An affidavit which is to state the amount advanced upon the security, — the amount paid, whether by receipt of rents or otherwise, — and the amount remaining due for princi- pal and interest, distinguishing how much for principal and how much for interest. The affidavit is to state whether the mortgaged premises, or any part of them, C PC c: < V, 112 ORDER XXXIII. SEC. 1. >Im n i j i a i I'i has been in the occupation of the mortgagee or of any one under whom he claims ; and, when there has been any such occupation, the affidavit is to state its nature, — the time it continued, — and the fair rentable value of the property. Upon production of such proofs and docu- ments, the court may at once determine the amount due : and when a foreclosure is ordered, the time and place for the payment of the mortgage money may be fixed by the decree, without a reference to the master, or any further enquiry. ' ' This order though not repealed is practically obsolete, as mortgage suits for foreclosure or sale are not now brought to a hearing, but the plaintiff is entitled on production to the registrar of the affidavit of service of the bill, to obtain on precipe such a decree as would be made by the court upon a hearing of the cause fro confesto, under an order obtained for that purpose, Orrf. 98. • t Where a sale is ordered, the judge at chambers, or the master acting in the matter, as the case may be, is to give such directions as he may think r jht for bringing in other incumbrancers ; and the matter is to proceed in other respects as in ordinary cases when a sale has been ordered. 8. Where a sait for foreclosure of the equity of redemption of any raortgaged property has been brought to a hearing in the ordinary way, neither the amount of the mortgage debt, nor the time and place of payment, are to be determined at the hearing, but the case is to be adjourned to chambers, or a reference to the master directed, as may be thought most convenient. XXXIII. References to the Master. 1. In all cases where, according to the present practice, a reference to the master would be directed, the court may dispose of such matters itself, if it think fit, and may direct the proceedings to be taken in full court, or at chambers, as it may find expedient. The practice of directing refereuces before a judge in chambers instead of to a master is now almost obsolute. i <. . . ORDER XXXIY. SEC. 1. 113 The plaintiff has, prima facie, a right to have the reference directed to the master resident in the county where the bill is filed, Macara v. Gwynne, 8 Grant 310. 2. The court may obtain the assistance of accountants, merchants, engineers, actuaries, or other scientific per- sons, in such %/ay as it may think fit, the better to enable it to determine any matter in evidence in any cause or proceeding, and may acton the certificate of such persons, {Imp. Act, 15 & 16 V. c. 80, s. 42.) As to the effect of the powers given by this section in extending the jurisdiction of Equity, see Mcintosh v. Great Western Railway Co., 3 Sm. AG. 146; Mildmay V. Methuen, 1 Drew. 216; 16 Jur. 965. As to the employment of accountants. Re London, Birmingham da Bucks Rail, Co., 6 W. R. 141 ; and they need not always be employed in the presence of the parties, Ibid. XXXIV. Judges' Chambers — Business to be Des- patched THERE, and mode OF PROCEDURE. 1. In future one of the judges of the court will sit daily at chambers for the despatch of the following busi- ness, and of such other matters as the court from time to time shall think may be more conveniently disposed of in chambers than in full court, viz : — (1.) For the sale of the estates of infants, under statute 12 Victoria, chapter 72. (2.) As to the guardianship, maintenance, and ad- vancement of infants. (3.) For the administration of estates under Order XV. (4.) For time to answer or demur. (5.) For leave to amend bills. (6.) For chan- ging the venue. (7.) To postpone the examination of witnesses, or to allow the production of further evidence. (8.) For the production of documents. (9.) Relating to the conduct of suits or matters. (10.) As to matters con- nected with the management of property. Whatever applications can under these orders be made in chambers, mnst be so made, Moffatt v. Ruddle, 4 Grant 44. The court refused to hear otherwise than in chambers, a motion to extend the time for payment of mortgage money, Anon, 4 Grant 61. A commission de lunatico inqnirendo will be granted in chambers, Rt c <: m t m iPI^T""" V 114 ORDER XXII. 8ECS. 3, 3. Stuart, 4 Grant 44 ; and so may a writ of habeas cnrpus, Re Paton, 4 Grant 14'7. * ; For the mode of proceeding under 12 Vic. c, 72, see Ord. SI. The provisioHs of the statute 22 Vic. o., 93 ; (Con. Stat. U. 0. c. 74.) have not the effect of excluding the jurisdiction of the Court of Chancery, in respect to the appointment of guardians to infants, Re Stanard, Cham. R. 15. The jurisdiction, where proceedings originate at chambers, extends only to simple cases, Rf.mp v. Grecnfiill, 2o Beav. 512. On the death of a receiver, au application for another may be made in chambers, Orote v. Bing, 9 Hare, App. 60 ; and the appointment of a receiver in the first instance, it by consent, may be made in chambers, Blackborough v. Ravenhill, ] 6 Jur. 1 085. Order for payment into court of purchase money may be made *° chambeis, Davenport v. Davenport, 22 L. J. Clian. 11 ; and so should I- o *o open biddiogy. <6. 1 judge sitting at 'chambers may exercise the p^yne power and jurisdiction, in respect of the business brou^ i L> OiC him, as is exercised by the court; all orders made by a judge at chambers are to have the force and effect of orders of the court ; and all or any of the powers, authorities, and jurisdictions, given to the master of the court by any act or acts now in force, or by any general order or orders of the court may be exercised by the judge sitting at chambers. Orders mado in chambers must be entered as well as those made in full court. 3. The court may adjourn for consideration in cham- ^^ ^ /// ^^^^ ^^y iT^^tter which, in the opinion of the court may no /tf^# vs^^be disposed of more conveniently in chambers ; and any j judge sitting in chambers may direct any matter to be I heard in open court which he may think ought to be so heard ; and such matter is to be adjourned at the request of either part}-, subject to such order as to costs or other- wise as the court may think it right to impose. Matters adjourned from chambers under this section, and applications in the nature of re-hearings to discharge or vary orders made in chambers, are to be heard in full court on the last Wednesday of every month, except during re-hearing terms, Ord. 61, s. 2. ORDER XXXIV. SECS. 4, 5, 6. 115 IQ by fuU am- ^1 nay ! any be 4 i so '■"ff [lest i her- i Daia bers, i*| cccpt 4. The course of proceeding in chambers is ordinarily to be the same as the course of proceeding in court upon motion. When an application is made to a judge at chambers, where, according to the present practice, a motion would have been made to the court, notice of the application (where the proceeding is not ex parte) is to be served on the opposite party, in the same manner as notice of the motion would have been. In other cases, an appointment is to be obtained from the presiding judge, which may be in a form similar to the form set forth in schedule M. hereunder written, with such varia- tions as the circumstances of the case may require. No state of facts, charges, or discharges, are to be brought in. But, when directed, copies, abstracts, or extracts of or from accounts, deeds, or other documents, are to be supplied for the use of the judge. But no copies of deeds, or documents, are to be made, where the originals can be brought in, without special direc- tion. For the form of appointineat see appendix of forms. The latter part of this section is extended to the masters' office, Ord. 42, B. 6. 6. When it appears to the judge, upon the hearing of any matter, that, by reason of absence, or for any other sufficient cause, the service of notice of the application or of the appointment, cannot be made, or ought to be dispensed with, the judge, if he think fit, may wholly dispense with such service, or may, in his discretion, order any substituted service, or notice, by advertise- ment, or otherwise, in lieu of such service. {Eng, Con. Ord. 35, r. 18.) 6. When, in the prosecution of any proceeding under a decree, it appears to the judge at chambers that some persons, not already parties, ought to be made parties, and ought to attend, or be enabled to attend the proceed- ings before him, he may direct an office copy of the decree to be served upon such parties, and upon due ■5 C < C/'i) r- UQ ORDER XXXY. SECS. 1, 2. service thereof such persons are to be treated and named as parties to the suit, and shall be bound by the decree in the same manner as if they had been originally made parties to the suit. Every office copy of a decree directed to be served under this section is to be endorsed with a notice to the effect set forth in schedule N. to these orders, with such variations as circumstances may require. The form of endorsement will be found in the appendix of forma. A ^ v'" Y. Any party served with an office copy of a decree under the preceding section may apply to the court, at any time within fourteen days from the date of such ser- vice, to discharge the order, or to add to or vary the decree. ' . ^ XXXV. — Taking Accounts. 1. Where an account is taken at chambers the presi- ding judge may give such special direction, if any, as he may think fit, with respect to the mode in which the account is to be taken or vouched ; and, in cases where he shall think tit so to do, he may direct that in taking the account the books of account in which the accounts required to be taken have been kept, or any of them, shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties in- terested to take such objections thereto as they may be advised. This section applies only where the vouchers have been lost ami the accounts cannot be taken in the ordinary way ; such directions will not be given merely to save expense, nor when ordinary evidence can be had. Lodge V. Prilchard, 3 DeG. M. & G. 906. Accounts taken in a suit in Jamaica ordered to be prima facie evidence, Sleight v. Lawson, 3 K. require the party asking it to conduct the sale at bis own expense, Ord. 76 v^ but see Taylor v. Walker, 8 Grant 606. 4. Such draft advertisement is to contain the follow- ing particulars, viz: 1st. The style of cause. 2nd. That the sale is in pursuance of the order or decree of this court. 3rd. The time and place of sale. 4th. A short and true description of the property to be sold. 5th. The manner in which the property is to be sold, whether in one lot or several, and if in several in how many, and what lots. 6th. What proportion of the purchase money is to be paid down by way of deposit, and at what time or times, and whether with or without interest the residue of such purchase money is to be paid. 7th. Any parti- cular or particulars in which the proposed conditions of sale differ from the standing conditions. 5. At the time named in such appointment or warranty the judge or master is, in the presence of all parties ser- ved, or of such of them as attend to settle such advertise- ment, to fix the time and place of sale ; to name an auc- tioneer, where one is to be employed ; and to make every other necessary arrangement preparatory to the sale, so that nothing may remain to be done but to insert the ad- vertisement ; and all the before-mentioned matters must be done at one meeting, namely, upon the return of the appointment or warrant, where it is practicable, and no adjournment of such meeting is to take place, and no new meeting is to be appointed for the aforesaid purposes, unless it be unavoidable. 6. The advertisement is to be inserted by the party conducting the sale, at such times and in such manner as the judge or master has appointed at the meeting be- fore mentioned. 7. The judge or master may fix an upset price or re- served bidding, where it is thought expedient, without further order ; but this must be done at the meeting be- fore mentioned, and it must be notified in the condition* ORDER XXXYI. SEC. 10. 119 of sale ; the master or his clerk is to conduct the sale where no auctioneer is eniployed ; the deposit is to be paid to the vendor, if present, or if not, to his solicitor, at the time of sale, and is to be forthwith paid by him into court : biddings need not be in writing, and all par- ties, except the one having the conduct of the sale, may bid thereat, orovided it be notified in the conditions of the sale ; a written agreement is to be signed by the purchaser at the time of sale ; after the sale is concluded, the auctioneer, where one is employed, is to make the usual affidavit according to the present practice, and where no auctioneer is employed, the master or his clerk is to certify to the court to the same effect, but the mas- ter is to make no report, allowing the purchaser in any case. In order to fix an upset price or reserved bidding, byidence must be laid before tbe master as to the value of the estate. From this information the master prepares a certificate whereby he directs that the sum of £ shall be tbe reserved bidding for the property, at the sale. This certificate ia then put in a sealed envelope and addressed to the auctioneer. For tbe form of an auctioneer's affidavit see appendix of forma. 10. Such sale must be objected to by motion to the court to set aside the same, and notice of such motion must be served upon the purchaser and the other parties to the cause. If an application be made to open the biddings, it should be made before tbe master's report on the sale is confirmed. Where there are several lots and difierent purchasers, a separate notice of motion to open biddings must be given as to each lot, Smith's Chan. Pr» 1006. Where one purchaser buys several lots, there nee-' '■ only one notice of motion. Price v. Price, 1 S. ti> court until his title lias been accepted or approved id, Crooks v. Street, t^hiim. R 95 ; but see, 2 DanUVt Chan. Pr. 93d. 12. When an enquiry into title has been directed by the court, the vendor is to deliver an abstract of the title to the purchaser, and if the purchaser does not object to the title and obta«'i and serve an appointment or war- rant from the judge or nuiNter, to consider the same, within fourteen days after the delivery of such abstract, he is to be deemed to have accepted such title ; at the time of serving the appoirtment or warrant the purchaser must deliver to the vendor a written notice of the objections to the title ; at the time appointed ;> duplicate of such notice is to be brought into the judgt s chambers or master's office by the objecting party, and such objections ar(^ to be argued before liie judge or master, who is to allow or disallow such objections ; and such allowance or disal- lowance is to be subject to appeal by way of motion to the court ; the judge or master is to make no report upon the title ; but the judge or master is merely to mark the objections allowed or disallowed, as the case may be ; such objections so marked are to be filed, and such allow- ance or disallowance is to stand absolutely confirmed, unless appealed from within fourteen days after such filing. When the parly served with the abstract considers it an insufficient one, he cannot, by returning the abstract and calling for a further one, prevent the fourteen days from running. The pioper course lor him to pursue is, either to serve a notice of objection to the abstract and take out a Avarrant lo consider these objections before the master, or to take out a warrant for the vendor to shew cause why he should not serve a finther and better abstract, and that fourteen days from the delivery of such further abstract may be allowed for delivering objections to the title. On moving to make an order iiki for not delivering an abstract of title absolute, it is necessary to show that it bus not been delivered to either, party named in the oider, Dick v. McNab, Cham. R. 31. I e O'i) r— *■■■;':: ■ition of an infant's real estate, where it is of opinion that sucli a proceed- ing is necessary or proper for the maintenance or education of the infant, or that, by reason of any part of the property being exposed to "waste and dilapidation, or to depreciation from any other cause, his interest requires or will be substantially promoted by such disposition, Con. Stat. U. C. e. 12, s. 50 ; but no sale, lease, or other disposition shall be made against the provisions of any will or conveyance, by which the estate has been de- vised or granted to the infant or for his use, Ibid. s. 61. 2. The petition is to be presented by the guardian ol the infant, or by a person applying by the same petition to be appointed guardian, as hereinafter provided. Petitions under this order are presented in chambers, Ord. 34, s. 1 ; in the name of the infant by his next friend or guardian. Con. Stat. U. C. 0. 12, s. 62. The provisions of the recent act 22 V^ic. c. 98, have not the elTect of excluding the jurisdiction of this Court, in respect to the appoint- ment of guardians to infants. Re Stannard, Oham. R. 1 6 3. The petition is to state the nature and amount of the personal property to which the infant is entitled — the necessity of resorting to the real estate — its nature, value, and the annual profits thereof. It must also state cir- cumstances sufficient to justify the sale and disposition of the estate, and the application of the proceeds in the manner proposed. The prayer must state specifically the relief that is desired ; it must designate the lands to be disposed of, and must propose a scheme for that pur- •r ORDER XXXVII. SEC. 4. 123 pose, and for the appropriation of the proceeds. If an allowance for the maintenance is desired, it must be so prayed, and a case must be stated to justify such an order, and to regulate the amount, Ab to the petition and procedure thereon, see Re McDonald, 1 Grant 90. The court will not direct a sale of the real estate of an infant, merely because the ancestor was indebted ; it must be shewn that the estate will lustain loss, or that the creditors are about to enforce pajment of their demands by suit, Re Boddy, 4 Grant 144. In directing the sale of infants' real estate the court is not governed by the consideration of what is most for their present comfort, but what is for their ultimate benefit ; and will order a sale of a portion of an infant's estate to save the rest where it is made to appear to be for the benefit of the infant. Re McDonald, Cham. R. 9*7. Where the application appeared to be more for the benefit of the father than of the infant, the court refused to make any order, Re Taylor^ 1 Grant 91. Where a mortgagee dies intestate, leaving an infant heir, after a decree for foreclosure, but before the final order, and his administrator revives the suit and obtains such order, and the mortgage debt equals or exceeds the Tulue of the mortgaged premises, the infant heir is a person seised upon trust, within the meaning of the English statute, 11 Geo. 4 & 1 Wm» 4, c. 10, 8. 6, and may be ordered on petition, without suit, to convey the estate to the administrator, or to a purchaser from him. The court will not, however, make the order, unless it appears that the application of the estate in question is necessary for the satisfaction of the debts of the in* testate, and a reference as to this will be directed, Re Hodges, 1 Grant 285. Where it is necessary for the purpose of a suit to obtain an order, for the execution of a conveyance by infant representatives of a mortgagee not parties to the cause, the proper mode of applying is by petition, Owen v.. Campbell, Re Mills, 4 Grant 630. In applying for the sa!e of real estate settled upon infants, the mother, by whom the application was made, was required to join in the conveyance for the purpose of surrendering the life-interest vested in her under the settlement. Re Kennedy, Cham. R. 97. , .?, 4. The petition may pray for the appointment of a guardian, as well as for the disposal of the infant's estate. In that case a proper case must be made by the petition, and established by the evidence, for the appoint- ment of the person proposed. ' o PC mmmf «<: r m V 121 ORDER XXXYIII. SEO. 1. i I i 5. Upon all petitions for the sale of an infant's estate^ the infant is to be produced before one Of the judges at chambers, or before a master. 6. When the infant is above the age of seven years h6 is to be examined, apart, upon the matter of the petition, and his consent thereto, by the judge or master, as the case may be ; and his examination is to be stated to have been taken under these orders, and is to be annexed to, and filed with the petition. Where the infant is under the age of seven years, the fact is to be certified by the judge or master before whom he has been produced. The Btatute expressly directs that the application shall not be madti without the consent of the infant, if he is of the age of seren years or upirardd, Cori, Stat. U. V. c. 12, s. 62. 7. The witnesses to verify the petition are to be pro- duced before the judge, or master, as the case may be ; and are to be examined viva voce to the matter of the petition, and the depositions so taken are to be stated to have been taken under this order. 8. The masters of the court are authorised to examine infants and witnesses under this order, without special order or reference. 9. Upon a petilion so verified, the court may either grant the relief prayed at once, or make such order as to further evidence, or otherwise, as the circumstances of the case may require. - XXXVIII.— Receivers. 1. Receivers are to be appointed in the following man- ner : the party prosecuting the order for a receiver is to obtain an appointment or a warrant from the judge or master, and to serve the same on all the necessary par- ties, naming in the copy thereof served, the proposed re- ceiver and his sureties ; at the time appointed the party prosecuting the order is to bring into the judge's cham bers, or the master's office, the recognizance or bond pro- :t ORDER XXXVIII. SBO. 1. 1«& posed as security ; the bond or recognizance is to be to the master ; any other party desirous of proposing another person as receiver, is to serve notice of his intention so to do upon the other parties, naming in such notice the person proposed by him as receiver, and his sureties, and is then in like manner to bring into the judge's chambers or master's office the recognizance or bond proposed by him as security : at the time named in the appointment or warrant the judge or master is, in the presence of the parties, or those who attend, to consider of the appoint- ^lent of the receiver, and to determine respecting the same ; and to settle and approve the proposed security ; the master is to make no report approving of or appointing the receiver ; but the judge or master is to appoint such receiver by signing a written appointment to the follow- ing effect, viz., " In Chancery, [style of cause] — I here- by appoint [receiver's name] receiver in this cause, [sig- nature of judge or master] ; " which appointment is to be signed without any warrant or attendance for that pur- pose : when signed it is to be filed by the party who has procured the person named by him as receiver to be appointed, and is then to have the same effect as the fil- ing of the master's report appointing the receiver now has ; but the same is not to be filed until after the execu- tion and filing of the securities settled and approved by judge or master. A receiver is an indifferent person between the parties, appointed by the court to receive the rents, ipsues and prouts of lands, or any other thing in question pending the suit, where it does not appear reasonable to the court that either parly should do it ; ur where a party is incompetent to do so, as in the case of an infant The appointment of a receiver rests in the dis- cretion of the court. Skip v. Harwood, 3 Atk. 664 ; Owen v. Hoinan, 3 Mao. <& Gor. 878 ; and when appointed he is treated as the officer and represen- tative of the court, and is subject to its orders. For eases in which a receiver will be appointed see Berney v. Sewell, 1 J. A W. 648 ; Owen v. Roman, 3 Mac. A Gor. 818 ; Silver v. Bishop of Nor- uich, 8 Swanst. 112 ; Smith v. Smith, 10 Hare, App. 71; in suits against executors and trustees, Bichards v. Perkins, 3 Y. & 0. Ex. 299 ; Brodie v. Barrj/t 8 Mer. 696 ; Wilson v. Wilson, 2 Keen 249 ; Prichard v. Flcet- & V, I ''l*i ill 11 126 ORDER XXXVIII. SEC. 1. wood, I Mer. 64 ; Middleton v. Dodawell, 13 Yes. 266 ; but see Lord t. Purchase, 17 Beav. 1*71; in cases of partnei ^bip, Const v. Harris, T, & U. 486, 511 ; Goodman v. Whitcomb, IJ. A W. 689 ; Fairburn v. Pearson, 2 Mac. & Gor. 144; Baxter v. West, 28 L. J. Chan. 169; Cleggv.Fishwiek, 1 Mao. <& Gor. 294. A receiver may be appointed of the rents and profits of lands, houses, dec, and of all personal estate which is capable of being reduced into pos- session, Watkins v. Brent, 1 M. «fe 0. 97 ; Richards v. Perkins, 8 T. A 0. Ex. 299 : Rendall v. Rendall, 1 Hare 162 ; and in favour of an equitable rotn^er«s80 sua, Bryan v. Cormiek, 1 Cox 422 ; even though their right to possession is clear, Anon, 6 Yes. 28*7 ; and even although the order appointing the receiver is erroneous, Ames V. Birkenhead Dock IVusiees, 20 Beav. 832. The receivers salary is generally fixed upon the passing of his first ac- count, when he is allowed in his discharge, a percenta^^e upon his receipts by way of salary for his care and trouble. The usual percentage upon rents and profits of real estate is five per cent on the gross rental, but this the maximum. He may be entitled to allowances beyond his salary for any extraordinary trouble or expense he has been put to in the performance of his duties. Potts v. Leighton, 15 Yes. 276 ; but the court will not sanction such allowances, if objected to, unless he has had the previous approbation of the court for what he has done. Re Ormsby, 1 B, & B. 189 ; Malcolm v. O'Callaghan, 8 M. curing the attendance of witnesses and of cross-examining parties who have made affidavits, see Ord. 40, ss. 7, 8 <& 9. When a notice of motion embraces two objects and the principal one fails, the party moving must pay the costs, Sturch v. Young, 6 Beav. 657. The plaintiff having given notice of motion for an injunction it was ordered to stand over at the request of the defendant; before the motion was heard the defendant filed a demurrer, which was allowed together with the costs of the suit, held that the defendants were entitled to the costs occasioned by the motion, Finden v. Stephens, 12 Jur. 819. A motion which has been opened cannot be afterwards treated by the party moving, as an abandoned motion, but the parties opposing are entitled to their costs as on a motion refused, Dugdale v. Johnton, 6 Hare 92. 2. There must be at least two clear days between the service of a notice of motion, and the day named in the notice for hearing the motion, unless the court give special leave to the contrary ; and there must be two clear days between the service of the petition and the day appointed for hearing the same ; and in the compu- tation of such two clear days, Sundays, or days on which the offices are closed, are not to be reckoned. This section does not apply to notice of motion for decree, which must be o. '^2 180 OBDER XXXIX. SEC. 2. •erred at least three weeks before the day fixed for the motion, Ord. 16 ; or to motioDs under Ord. 41. A notice of motion given for a day which is not a regular oourtday, unless by leave of the court, is a void proceeding, and the party served need not attend thereon, Stevenson v. Huffman, 4 Grant S18 ; Steedman v. Poole, 11 Jur. 655; and if leave be given to serve notice for such a day, or to give less than two clear days notice, it must be so stated in the notice of motion, Hill v. Rimell, 8 Sim. 682 ; Harris v. Lewis, 8 Jur. 1068. When an application is of such a nature as to require a detailed state- ment of the facts and circumstances upon which it is founded, the proper course is to make it by petition. And as a general rule where an application is made in a suit by any person not a party to the suit, it should be made by petition ; but when the notice of motion shows the title of the applicant, and no long state- ment of facts is necessary for that purpose, a person not a party to the record may apply by motion, Jones v, Roberts^ 12 Sim. 189; Earl of Port arlington v. Darner, 2 Phil. 264. ■ Where a decree reserved further directions and costs, but the further directions becnrtie unnecessary, the costs \^ere disposed of upon petition, Winthrop v. Winthrop, Coop. 20. The petition is entitled in the cause or matter and is addressed to " the Honourable the Judges of the Court of Chancery." If presented by a person not a party to the suit, his name, residence and description must be set forth, Glazbrook v. Oillatt, 9 Beav. 492. A copy of the judges fiat must be endorsed upon the copy of the petition served, and the original fiat should be produced and shown at the time of service. The notes under the preceding section as to evidence, examination, and cross-examination of witnesses upon motions, and as to costs apply equally to applications by petition. A petition may be amended by consent, at the hearing, Matson v. Swift, 9 Jur. 521 ; or even after the order is drawn up, Hislop v, Wykeham, 8 W. R. 286 ; Re Bunnett, 1 Jur. N. S. 921 ; but where a petition was amended by statins; facts which occurred after the leave to amend was given, it was dismissed with costs, Douhtfire v. Elworthy, 15 Sim. I?. Before any order made on a petition can be passed, the original petition must be filed, and whore the original was lost, the court allowed a copy to be filed in its stead, Sanderson v. Walker, 1 M. <& C. 859 •, Smith v. Har- wood, 1 Sm. & G. 137 ; and the same was allowed where the petitioner re- fused to deliver the petition to the respondents to be filed, Andrews v. Wal- ton, 1 M, '^*'\ve'-9 Sim. 653 •,^but this order does not apply to parties in the cause, who may I n ..(«>• " - .. .'\ . ... ..... — _ _ _ . ^.^^describe themselves as the above mentioned plaintiff or defendant, without ..»'•« "".V-.t '^^Bpecifyjng any residence, addition, or other description, Crockett v, Bishton, \;'i 2 Madd. 446. As a general rule an affidavit cannot be made in a suit until the bill is filed ; but where it is necessary to have an affidavit annexed to a bill at the time of filing, it is no objection to the affidavit that it was sworn before the bill was filed, Walker v. Fletcher, 12 Sim. 420; and wherein an injunction suit affidavits had been by mistake filed before the bill, they were allowed to be read in support of an interim injunction, jTmnall v. Brown, 18 Jur. 1051. 6. Every affidavit is to be read over to the deponent by the master or examiner who is required to administer the oath ; and the master or examiner is to inform such witness that he is liable to be cross-examined touching the matter of such affidavit ; and when the witness de- sires to qualify or add to his deposition, the master or ax- aminer is to vary the same accordingly ; and the jurat is to be in the form and to the effect set forth in schedule P. to these orders. f ' \ ORDER XL. SECS. 7, 8. \ss In a£Sdavtt8 of eiecutioD, justification by sureties, aud of service, the short form of jurat is sufficient, Re Ausebrook, 4 Oraot loy. For the form of the jurat, see appendix of forms. An affidavit purporting to be sworn before a mayor of a city in England is inadmiss'ble without proof of his signature and authority to administer oAtha; but where the affidavit is sworn out of England, it is receivable as evidence in the courts of this country under the provisions of the imperial Htatute 14 4 15 Vic. c. 99, Graham v. Marpherson, Cham. R. 85 ; but this does not apply to affidavits of sei vice of bills out of the jurisdiction, which are to be swoin before the persons mentioned in the order respecting ser- vice abroad, Ord. 101, s. 9. 7. Any person in any cause or matter depending may, by a writ of subpoena ad testificandum^ or duces tecum, require the attendance of any witness before the court, or before a deputy master, or before an examiner specially appointed for the purpose, and examine such witness or- ally for the purpose of using his evidence upon any motion, petition, or other proceeding before the court, in like manner as he may now require such witness to at- tend and be examined with a view to the hearing of the cause ; and any party having made an affidavit to be used, or which shall be used on any motion, petition, or other proceeding before the court, shall be bound to attend for the purpose of being cross-examined, on being served with such writ ; but the court, nevertheless, in its discre- tion, may act on the evidence before it at the time, and may make such interim order, or otherwise, as may ap- pear necessary to meet the justice of the case. No evidence can now be taken under this section bef »re the court, unless the court grant leave upon a special application supported by affidavits, Ord fi6. An appointment for the examination of witnesses for the purpose of a motion to amend which plaintiff stated It was his intention to make, but no Dotice of which had been served, was discliarged, on the ground that no examination of witnesses for the purpose of an interlocutory application could be had until notice of motion or petition had been served, Barton v, Lewis, V. C. Esten, 3rd Feby., 1863. 8. Any party in any cause or matter who requires the attendance of any witness, whether a party to the cause or matter, or not, for the purpose of his being examined ■■•■♦•I X^ T^a^ 134 ORDER XLI. SEC. 1/ ;ii with a view to his evidence upon any motion, petition, or other proceeding before the court, not being the hearing of a cause J is to give to the opposite party or parties forty- eight hours' notice, at least, of his intention to examine such witness, and of the time and place of such examin- ation, unless the court think fit in any case to dispense with such notice. The cross-examination, in such case, is to follow immediately upon the examination, and is not to be deferred to any future time. 9. Where it is desired to cross-examine any witness, whether a party to the cause or matter, or not, who has made an affidavit to be used, or which has been used upon any motion, petition, or other proceeding before the court, not being the hearing of the cause, the party who desires to cross-examine such witness is to give forty- eight hours' notice to the party on whose behalf such affidavit was filed, or to the party intending to use the same, of the time and place of such intended cross- examination, in order that such party, if he thinks fit, may be present at such intended cross-examination. A defendant may cross-examine a co-defendant's witness, Lord ^. Colvin, 8 Drew. 222 ; all the evidence is common to all parties, Sturges v. Morie, 26 Beav. 562. Where defendant cross-examines plaintiff's witness it is convenient that other defendants in the same interest with plaintiff, should cross* examine him afterwards, and then the Brst defendant re-examine, Harrison V. Mayor of Southampton, 2 Jur. 435 ; where plaintiff and other defend* ants wish to cross-examine, t is couvenient that plaintiff' cruas-ezamine first, Lord v. Calvin 3 Drew. 222. A solicitor cannot be compelled to produce his client for exFmiuat^ ' Spicer V. Dawson, 22 Beav. 282. The witness to be examined or cmssexamined is nc d to fortj. eight hours notice of such exuminutiuu, but to such noi L^ether more or less, as under the circumstances may be reasonable, Norll Wheal Mxmouth Mining Co., 8 Jur. N. S. 1168. XLI. Examination pro interesse suo Abolished. 1. The practice of applying to the court for an order to be examined pro interesse suo is hereby abolished. Under the former practice the proper c«>uise for any person who claimed ORDER XLII. SKC. 1. 1S5 title to aay property sequestered, was to apply to the court by motion or petition, to direct the plaintiff to exhibit interrogatories, in order that the party applying might be examined as to his title to the property ; and this mode of proceeding was followed where the property was in the possession of a receiver, Brookt v. Oreathead, 1 J. «fe W. 178 ; Angel v. Smith, 9 Ves. 886. An order for the examination of a party pro interease »uo could not be granted until after the sequestrators had made a return, because, it could not till then appear to the court what had been sequestered. Lord Pelham V. Duchett of Newcastle, S Swanst. 290. 2. In lieu thereof, any party who might have moved to be examined pro interesse suo may apply to the court, upon motion, for such relief as he may think himself en- titled to. 3. Motions under this order are to be governed by the practice prescribed by the sixteenth order, in relation to motions for a decree. Three \feeks' notice of motion must be given, and the applicant's affidavits must be filed before the notice of motion is served ; the affidavits in answer should be filed within ten days after service of the notice of motion and within six days thereafter the applicant's affidavits in reply, Ord. 16. 4. On hearing the motion, the court, in its discretion, may either grant or refuse the motion, or it may give such directions for the examination of parties or witnesses —or for the making further enquiries, — or for the in- stitution of any suit or action, as the circumstances of the case may require. 6. When it can be made to appear to the court that it would be conducive to the ends of justice to permit a no- lice to be served for some day earlier than that prescribed by the 16th order, leave may be obtained for that pur- pose, upon an ex parte application to a judge at cham- bers in the manner prescribed by the 17th order. XLII. — The Master's Office. 1. Every decree or order referring any matter to the master is to be brought into his office within fourteen days after the decree or order shall have been pronounced, O MetfM'< O'i? 186 OBDBR XLII. SEC. 2. h" '"fir f0 I 'i- i :!'f m by the party having the carriage of the same ; other* wise any other party lo the cause, or any party having an interest in the reference, may apply to the court as he shall be advised, that the prosecution of such decree or order may be committed to him, or otherwise, for the purpose of expediting the prosecution thereof. This section is a copy of the 48th Order of April, 1828, in England, ex- cept that by that order the time within which a decree was to be brought into the master's office was two months instead of fourteen days as in this section. The section ought to read within fourteen days after the decree or order is entered, as some time frequently and of necessity elapses, before a decree, after it is pronounced, can be passed and entered. This section applies only to delay in prosecuting a decree after it baa been passed and entered ; if the party having the conduct of the suit delays after judgment is pronounced, to procure the passing and entering of the decree, the registrar may draw it up at the instanee of any other party, and deliver it to him, Daniel's Oh. Pr., *l%0. Where a decree has been carried into the master's ofBce, section 10 of this order provides, that, if the parly prosecuting the decree does not pro- ceed with due diligence, the master may give the conduct of the referenoo to any other person interested. 2. Upon the bringing in of every decree or order, the solicitor bringing in the same is to take out a war^ rant (unless the master shall dispense therewith) ap- pointing a time, which is to be settled by the master, for the purpose of taking into consideration the matters referred by such decree or order, and is to serve the same upon the parties, or their solicitors, unless the master shall dispense therewith ; and upon the return of such warrant to consider, or upon the bringing in of the refer- ence when no such warrant shall have been issued, the master is to proceed to regulate in all respects the man- ner of proceeding with such reference, and the manner in which each of the accounts and enquiries is to be pro- secuted. As to the evidence to be adduced in support thereof, and therein to give such special directions (if any) as he may think fit with respect to the mode in which any ac- counts referred to him are to be taken or vouched ; and, 'f OBDER Xlall. 8SC. 2. !S7 if he think fit so to do, to direct that in taking such ac- counts the books of account, in which the accounts re- quired to be taken have been kept, or any of them, be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objection thereto as they may be advised. As to the parties who are to attend on the several ac- counts and enquiries. As to the time at which, or within which, each pro- ceeding is to be taken. And he is to fix a time at which to proceed to the hear- ing and determining of such reference, appointing a day in the meantime, if he shall think fit, ibr the purpose of entering into the accounts and enquiries, with a view to ascertaining what is admitted and what is contested be- tween the parties; and such directions may be after- wards varied or added to, as may be found neces- sary; and in giving such directions, and in regu- lating the manner of proceeding before him, the mas- ter is to devise and adopt the simplest, most speedy, and least expensive mode of prosecuting the reference, and every part thereof, and with that view to dispense with any proceedings ordinarily taken in the master's office, •which he may conceive to be unnecessary ; to shorten 'the periods for taking any proceedings, or to substitute a different course of proceeding for that ordinarily taken. •Any party directed by the master to bring in any account, or to do any other act, is to be held bound to do the same in pursuance of the direction of the master in that behalf, without any warrant or written direction being served on him for that purpose. The 50th and 51st of the English orders of April, 1828, are the founda- tion of this section. A warrant to consider a decree, requires one clear day between the day of service and the return day, and Sunday is not counted ; but in this coun- try the practice is to require two clear day's service of all warrants. A proceeding in the master's office may be supported by affidavits, or by oral evidence, but the master cannot receive affidavit evidence if objected o — n« ■<■■' irn> :7j 138 ORDER XLII. SEC. 3. !'■; :;'i'^ ^ ! ' k -■) '»ij to, and it is advisable to iiave the mode ia which the evidence is to be (sup- plied, settled at the consideration of the decree, and if the parties then ac' quiesce in receiving affidavits, they are bound by such acquiescence, and cannot afterwards object. Where the master did not at that time decide to admit affidavits, but afterwards admitted them, the admission of them having been expressly objected tu by tlie opposite party, an exception to the report was allowed, Gibbs V. Payne, 4 Sim. 554. It does not appear, however, that a positive assent to reading affidavits is required ; the circumstance that a party has allowed affidavits to be used without objecting to them, will be sufficient to prevent his afterwards raia- ing an objection to the master's report on the ground that the witnessei ought to have been examined, Morgan v. Lewis, 1 Newl. 633 3. When the master shall appoint a day, as provided for in section 2 of this order, for the purpose of entering into the accounts or enquiries referred to him, with a view of ascertaining what is admitted and what is con- tested between the parties ; and when it becomes neces- sary to adduce evidence, or to incur expenses otherwise, in establishing or proving items of account or other matters which in the judgment of the master ought, under all the circumstances, to have been admitted by the party sought to be charged therewith, and which such party shall refuse to admit, the master, before mak- ing his report, is to proceed to tax such costs, occasioned by such refusal, as shall appear to him reasonable and just, and shall state in his report the amount of such costs and how the same were occasioned ; and the party to whom such costs are to be paid is to be entitled, upon the master's report becoming absolute, to such process of the court to compel payment thereof as in other cases, provided always, that when the party entitled to receive the general costs of the cause is the party ordered to pay such costs, he is to be at liberty to deduct such costs from such general costs, provided such general costs, and such interlocutory costs, are between the same parties. When the master shall omit to appoint a day for the purpose aforesaid, it shall be competent to him to grant to any party bringing in accounts a warrant to proceed W: ORDER XLII. SECS. 4, 5. 139 on the same, for the purposes aforesaid ; such warrant to be underwritten, as follows, " On leaving the accounts of, &c. ; and take notice that you are required to admit the same, or such parts thereof as you can properly admit." And when the party so notified shall refuse to admit the same, the like consequences shall follow, under the like circumstances, as are hereinbefore pro- vided for. In underwriting masters' warrants, care shoulii be taken that every- thing intended to be proceeded with on the separate appointments is fully and distinctly set out, and also that such underwriting curresponds ex- actly with the directions given by the master, and entered in his book. If this is not done, the opposite party may refuse to proceed with any matter before the master nut expressed as inteuded to be taken up un that particular appointment. Also if any part of the underwriting necessitatea the compliance by the opposite party with a directory order (such aa to bring in books, &c.), and does not fully shew the manner and extent of the intended direction, tue prosecuting party will be unable, if the direction ia not complied with, to proceed to put the defaulting party iu contempt ; but, at his own expense, will have to procure and serve a fr^sh appoint- ment. In order to put a party in contempt for default in obeying a mnster'a warrant, it ia unnecessary to have personal service of the order nisi; service on the solicitor will be sufficient. For proceedings to contempt generally, and as to costs thereof, see Ord.i6, 8. 2. 4. The master and each of the deputy-masters is to keep in hi? office a book, to be called the " master's book," in winch, upon the bringing in of any decree or order of reference, is to be ejitered, the style of the cause, the name of the solicitor prosecuting the reference, the date of the decree or order being brought in, and an entry of the proceedings then taken ; and the master shall enter therein, from time to time, the proceedings taken before him, and the directions which he may give in relation to the prosecution of the reference, or other- wise. 6. No states of facts, charges, or discharges, are to be brought into the master's office. But, when directed, pi; -n 140 OBIXER XLII. SECS. 6, 7, 8. copies, abstracts of, or extracts from accounts, deeds, or other documents and pedigrees, and concise statements, are to be supplied ; and where so directed, copies are to be delivered as the master shall direct. No copies of deeds or documents are to be made where the originals can be brought in, without special direction. This e ret ion is the same as the latter part of Ord. 34, s. 4. ? • 6. Where any account is to be taken, the accounting party is, unless the master shall otherwise direct, to bring in the same in the form of debtor and creditor, verified by affidavit. The items on each side of the account are to be numbered consecutively, and the account is to be referred to by the affidavit as an exhibit, and not to be annexed thereto. The above sectieu is almost an exact copy of Ord. 34, s. 2. 7. Any party seeking to charge any accounting party beyond what he has in his account admitted to have received, is to give notice thereof to the accounting party, stating, so far as he is able, the amount so sought to be charged, and the particulars thereof in a short and succinct manner. {J^ng. Con. Ord. 35, r. 34.) 8. Every reference appointed to be heard, as by section 2 of this order provided, is to be called on and proceeded with at the day and time so fixed, unless the master 'shall in his discretion think fit to postpone the same ; and in granting any application to postpone the hearing of such reference, the master may make such order, as to the costs consequent upon such postponement, as Ke 'ihay think just. And as soon as the master shall have entered upon the hearing of such reference, he is to'pro- ceed therewith to the conclusion without interruption, when that is practicable ; and when any reference can- not be concluded in a single day, the master is to proceed de die in diem, without any fresh warrant, unless he shall be of opinion that an adjournment other than de die in diem would be proper, and conducive to the ends of ORDER XLII. SECS. 9, 10, 11. 141 W justice; and when any such adjournment shall be ordered, the master is to note in his book the time and reason thereof; and in no case is any matter to be dis- continued or adjourned for the mere purpose of proceeding with any other matter, (with the exception of the e.cam- ination of witnesses during examination terms,) unless such course shall have become necessary. 9. Upon any application made by any person to the court, the master is, at the instance of the person making the application, to certify to the court, as shortly as he conveniently can, the several proceedings had in his office in the same cause or matter, and the dates thereof. 10. Where a party actually prosecuting a decree or order does not proceed before the master with due dili- gence, the master is at liberty, upon the application of any other party interested, either as a party to the suit, or as one who has come in and established his claim before the master under the decree or order to commit to him the prosecution of such decree or order, and from henceforth neither the parly making default nor his solici- tor is to be at liberty to attend the master as the prosecu- tor of such decree or order. This section is a copy of English Order 56, of April, 1828. Previous to that order, the practice of the court was, especially in creditors' suits, in case the party "whose duty it "was to prosecute a decree neglected his duty, to allow a party interested as a creditor to obtain an order to prosecute in hip stead, Crcuze v. Hunter^ 2 Ves. 157; Sims v. Ridge^ 3 Mer. 458 ; Powell v. Walworth, 2 Mad. 183 ; Edmunds v. Ackland, 6 Mad. 81 ; and the court may still exercise its authority by taking the prosecution of a decree from the plaintiff and entrusting it to another, and that even after the master has exercised his judgment upon it, and has refused the application, Vi'yalt v. Sadler, 5 Sim. 450. 11. Advertisements for creditors are to appoint a day and hour, and to name the place at which creditors are to come in and present and prove their claims before the master ; for this purpose no state of facts shall be neces- sary, but the claims are to be duly verified by affidavit. At the time and place named in such advertisement, the mi. If.—" •Mm 14)3 ORDER XLII. SEC. 12. master is to proceed on the claims brought in before him without further notice, and may examine any parties as witnesses in relation thereto at such time, or thereafter, as he may see fit ; and he is to allow or disallow, or ad- journ the same, as to him may seem just. The costs of proving such claims are, in the discretion of the master, to be allowed to the creditors proving the same, and added to their debts respectively ; or to be disallowed. And in case of their being allowed, they may be allowed in gross in place of taxed costs. In a creditors' Buit the plaintiff must prove his claim in the master's o£5ce, and each creditor mny dispute the claims of the others, Field v. Titmuxs, 1 Sim. N. S. 218 ; Owens v. Dickenson, Cr. & Ph. 48. Although the time had elapsed, creditors were allowed to come io so long as the fund was in court, Lashley v. Hogg, 11 Ves. 602; after deficient assets apportioned among creditors, and transferred to the accountant-gen- eral for payment to them, another creditor allowed to come in on payment of consequent costs, Angell v. Haddon, 1 Madd. 529. A creditor coming in after long delay every defence against his claim allowed as on a new bill, and undistributed part of the assets liable only proportionately, Oreig v. Somerville, 1 R. «fe M., 338 ; creditor coming in after some legatees paid and fund carried to account of the rest, entitled to a proportional part only of the latter, Gilespie v. Alexander, 3 Russ. 180. Claim disallowed by chief clerk in one suit, is not barred in another, Teed v. Beere, 5 Jur. N,. S. 881 ; 7 W. R. 894. A claimant in an administration suit, may be cross-examined upon his affidavit in support of his claim, Cast v. Poyser, 3 Jur. N. S. 88 ; 26 L. J. Oh. 858. A creditor is entitled to the costs of establishing his debt ■, and the court has jurisdiction to order payment of costs, by a creditor failing to prove his claim. Hatch v. Sear/es, 2 Sm. & Q. 14^ ; 2 W. R. 297 ; Yeoman v. Haynes, 24 Boav. 127; Oolyer v. Golyer, 10 W. R. 748. The power given to the master to allow a gross sum in lieu of taxed costs, does not affect the costs of the creditor who is plaintiff in the suit, Flintoff V. Hayncs, 4 Hare 809. \ Where the fund i.s insufficient, the costs are added to the debts and with them apportioned, Morshead v. Reynolds, 21 Beav. 688. 12. In master's reports no part of any account, charge, affidavit, deposition, examination or answer, brought in or used in the master's office, is to be stated or recited, but instead thereof the same may be referred to by date ORDER XLIt. SEC. 13. ua or otherwise, so as to inform the court as to the paper or docur icnt so brought in or used. i3. In the taking of accounts in the master's office, it shall be within the cognizance of the master lo take the same with rests or otherwise ; to take accounts of rents and profits received, or which, but for wilful neglect or default might have been received ; to set occupation rent j to take into account necessary repairs, and lasting im- provements, and costs and other expenses properly incur- red otherwise or claimed to be so. And generally, in the taking of accounts, to enquire and adjudge as to all matters relating thereto, as fully as if the same had been specifically referred ; subject, nevertheless, to the revision of the court upon appeal from the master's report ; and it shall not be necessary to the taking of such accounts that any of the matters aforesaid should have been stated in the pleadings ; or that evidence thereof should have been given before the decree or order of reference ; or that such decree or order should contain any specific direction in respect thereof. This section confers upon the roaster much larger powers, in many respects, than even a judge in chambers in England possesses. It has no English original, and is confined to the practice of our own court Order 142 of April 1843 is the foundation upon which it rests, but altered by the removal of certain restrictions. That order provided that the accounts, to be taken by the master, should be taken according to the laws and practice of the Court of Chancery. This limitation in strictness of language was perhaps, unnecessary, as all accounts must have been, and must b& taken in that manner, but it was not an unmeaning safeguard, and was a plain intimation to the master of his duty, and the mode of pursuing it. And there was a proviso that claims for improvements should not be enter- tained unless a case was made upon the pleadings for them. An attentive consideration of the nature of the matters thus submitted to the jurisdiction of the master, and which will be found at some length below, and a careful observation of the practice relating thereto, has led to the conviction that it would be wiser and safer to require in all the cases contemplated by this section, that a case should be made upon the plead- ings at least, if the order be not abrogated entirely, or limited merely to matters of course in the taking of accounts. The questions involved in taking an account with rests, or charging with wilful default, or setting occupation rent, or taking account of improve- ::3:;::l 'JO 144 ORDER XLII. SEO. IS. ii i IM. TOfnts, frequently require the inveiitigation of the moat delicate eubjeoti upon which the jurisdictlou of the court caa be exercised, and the mode of procedure in the master's office, renders it almost impossible for the due oonsideration of them. True there is an appeal, — but an appeal is not a latisfiictury mode of bringing matters of this description before the court, — every persumption is naturally made in support of the report, and a suitor cumes at every disadvant igL> to ask a decision upon his rights, who comes by appeal from a decision of an officer of the court, — and this too, upon matters, which by every other system of equity, he is entitled to have submitted to the consideration and determination of the court in the first instance, without having to overcome the prejudice of an adverse adjudica- tion. Upon all the matters of account mentioned in this section, a case must be made before the master, such as, under the former practice, required to ' ' be made upon the pleadings, to authorize the court to make a decree upom ' ' them. Reference to the cases which determine liability upon the pleadings y' is therefore necessary to ascertain the extent and the limits of the master's., power. It is proposed to note them upon the several matters referred to in this section in the order in which they are mentioned. I. As TO TAKING Accounts with Rests. There is some ambiguity in the meauing of this phrase. Formerly it seems to have been considered as nothing more than ascertaining the amount due at specified times from an accounting party, but not necessarily involving the amalgamation of principal with interest, or turning the inter- est into capital, — in which sense it was little more than an enquiry to as*'^ certain balances. But the technical moaning it has now acquired may be expressed as, a statement of the amount due at specified times, including both principal and interest, and the sum so found due forms the principal upon which interest is to be calculated, — or in other words it charges the accounting party with compound interest, Raphael v. Boehm, 11 Ves. 92; ' Bennett's Practice in the Master's office, 136. Rests most frequently occur in accounts against (1) executors and trus- tees, and (2) in accounts against mortgagees. (1) In accounts against executors and trustees. The following rules appear to be the result of the cases, but it is impossi- ble to state any rules which will reconcile all the cases and be con&istent with themselves. (a)Executors and trustees retaining balances in their hands, in neglect merely of the duty imposed by law, will be charged with simple interest only ; — (6)But if the instrument creating the trusts direct an accu- mulation of the funds, the neglect to invest will be considered as a positive breach of trust, and rests ordered ; — (c) If the trustee have employed the funds in trade or for his own benefit, whether there be a direction for accu- mulation, or not, the cestui que trust has the option of taking the profits of the employment of the fund, or of charging him with interest and rests. In this class of cases great doubt still exists whether rests will be directed as a matter of course, or whether it does not require a special case of misconduot \ ORDER XLII. SEC. 13. 145 to charge more than simple interest, but the better opinion seems to be that where an account of profits might be bad, re^ts will be directed, and lastly (d) in cases of fraud rests will be made. The court in England is further in the habit of modifying the charge against the accounting party, according to the various degrees of culpa- bility, by charging different rates of interests. In simple cases of neglect, 4 per cent is the usual rate, while if the neglect amount to a breach of trust, or be accompanied with misconduct, 6 per cent is imposed. In tliis Pro- vince no such practice prevails, and when interest is calculated it is the usual legal rate — 6 per cent — whether the account be taken with rests or not. These different rates in England require to be continually borne in mind when reading the cases on the subject, as will be observed by the frequent reference to them in the cases cited below. (a) In cases of neglect merely of a legal duty, simple interest is charged. If an executor keeps nioney in his hands without any necessity from the circumstances of the estate or fund, he will be charged with interest, but usually, in England, only at 4 per cent, unless it appears that more might have been made of it, and then he will be charged with what might have been made, Forbes v. Ross, 2 Cox 116. In that case the trustees were authorized to lay out the fund in lands or on personal securities at such rate of interest as they should deem reasonable. They exercised this authority by lending to one of themselves, the security was ample, and the bon'owing trustee used the money by lending at 5 pei cent, but claimed that from losses in loans he did not realize more than 4 per cent, but the trustees admitted that five per cent might have been made by investing in government securities or on mortgages, and Lord Thurlow charged them 8 per cent. In Jtocke v. Hart, 11 Ves. 58. where it only appeared that the executor had not brought the money into court, as he ought to have done, but it was not shewn that he had derived any benefit from it, Sir W. Grant charged him with simple interest at 4 per cent. The rule is stated in the same way by Lord Eldon in Mosley v. Ward, 11 Ves. 681. "The court does not usually give more than four per cent where the money has been called in for the purposes of the will and the balance only has been in his hands." Sir Thomas Plumer, V. C. in Tebbs v. Carpenter, 1 Mad. 290, says, "a distinction has been taken, as in every moral point of view there ought to be, between negligence and corruption, in executors. A special case is necessary to induce the court to charge executors with more than four per cent upon the balances in their hands. If the executor has balances which he ouglit to have laid out, either in compliance with the express (iirections of the will, or from his general duty, even where the will is silent on the subject, yet if there be nothing more proved in either case, the omission to lay out amounts only to a case of negligence, and not of misfeasance." This statement of the rule as it respects non-compliance with the express directions of the will, has not been approved by later judges, but as to the h-n: •♦•(*»■ «»», 4\ :ix::i «i J4B ORDER XLII. SEC. 13. lip if^'-'JI "1 fir' ■ .:.!r ill efliect of non-compliance with the general duty of the executor it is cor. reot. And Sir J. Romilly, M. R., in Jones v. Foxall, 16 Beav. 892, states the general rule thus ; " If an executor has retained balances in his hands which he ought to have invested, the court will charge him with simple interest At 4 per cent on the balances ; if in addition to such retention he has com> mitted a direct breach of trust, or if the fund has been taken by him from a proper state of investment in which it was producing five per cent, he will be charged with interest after the rate of 6 per cent. (6) If the instrument creating the trust direct an accumulation or in- vestmen,*. or application of the fund, the neglect to comply with it will ba considered a positive breach of trust and rests ordered. In Raphael v. Boehm, 11 Yes. 92, a testator gave to his executors a legacy to be in full for their trouble in performing the duties in his will, and directed that they were not to derive 'any advantage from keeping money in their hands, and that the surplus of bis estate should be accumu lated for the benefit of legatees. At his death more than £30,000 came to» the bands of the executors, which for 13 years they retained. Lord Lough- borough charged them 5 per cent from the time of receiving the moneys, commencing at the death of the testator, and half-yearly rests. The master in taking the accounts under this decree, computed interest upon each re. eeipt from the day it was received, the balance of receipts, with interest so calculated, and payments being struck at the end of each half-year ; and that balance so composed of principal and interest being carried forward as an item in the account, producing interest. Lord Eldon thought the decree unusually severe, but under the facts of the case would not refuse to give it effect. He says, (p. 10*7) " Where there is an express trust to make improvement of the money, if he will not honestly endeavor to im- prove it, there is nothing wrong in considering him, as the principal, to have lent money to himself upon the same terms, upon which he could have lent it to others, and as often as he ought to have lent it, if it be principal ; and as often as he ought to have received it, and lent it to others, if the demand be interest, and interest upon interest The court would shame- fully desert its duty to infants by adopting a rule, that an executor might keep money in his hands without being accountable as if he had accu> mulated." In Knoiiv. Cottee, 16 Beav. 77, the executor was directed to invest in British stock or upon real security and accumulate the surplus after main- taining infants. He invested in foreign funds, — and was charged 4 per cent with annual rests. The M. R. saying, (p. 79) " The case must either be treated as if these investments had not been made, or had been made for his own benefit out of his own moneys, and thafr he had at the same time retained moneys of the testator in his hands. The usual course is to charge an executor with 4 per cent where he has simply retained balances ; but where he has acted improperly or has employed the trust money in 0]10ER XLII. SEC. 13. 147 trade for his own benefit, or has been guilty of other acta of misoonduct, the court visits him with interest at 6 per cent. In this case there doei not appear to me to have been any such misconduct as to make him an~ Bwerable at 6 per cent. It appears simply a case in which an executor has retained moneys which he has not properly invested." In Jones V. Foxall, 15 Beav. 388, there was a trust to call in a cum of money and invest in government o** real securities. The trustee permitted the fund to remain in the hands of a trading firm, of which he was a member, for 1 6 years, and he was charged 6 per cent with annual rests. Here was not only a positive breach of trust in neglecting to comply with the directions of the will, but also the employment of the funds for hii own benefit. In Townend v. Tovmend, 1 Giffi 201, the same principle was acted on by Y. 0. Stuart, and he gave compound interest on an infant's Jegacy, at 6 per cent, which the executors had not invested properly pursuant to the directions of the will. See also Wilson v. Peake, 8 Jur, N. S. 165. Considerable discussion has taken place as to the propriety of the rule by which these varying rates of interest are charged. The additional rates are sometimes said to be imposed by way of penalty, irrespec- tive of the fact whether they have been received or not, — to this it has been replied, why not impose an additi'^nal sum of principal which has not been received as well as interest which has not been received. And it is said that the court ought to charge the exe- cutor only with the interest which he has received, or which it is justly entitled to say he ought to have received, or which it is 80 fairly to be presumed that he did receive that he is estopped from saying that he did not receive it; and acting upon such reasoning, Lord Oran- worth, in Attorney- Oeneral v. Alford, 4 DeO. M. G. 843, charged an executor with 4 per cent simple interest only although he had neglected to apply the fund as directed by the will. It appearing that the executor had not in fact derived a benefit from the money, although grossly neglecting his duty. But this case cannot be considered as laying down a general rule of that kind, for although the decree of the vice-chancellor was varied by the chancellor from 5 per cent with annual rests to 4 per cent simple interest yet the defendant, was ordered to pay the costs, although not so charged by the decree, nor was the decree appealed from on that ground. And in the Mayor tire, of Berwick v. Murray, 1 DeG. M. G. 519, the same chancellor disclaims having intended to declare in Attorney-General v. Alford, that defaulting trustees should in no case be charged more than 4 per cent, and there charged the defendant 5 per cent. (c) If the trustee has employed the trust funds in trade, or for hit ovm benefit^ whether there be a direction for aceumviation, or investment, or not, the cestui que trust has the option of taking interest and rests, or the profits of the employment of the fund. Where a trustee employs trust funds in trade he renders himself liable to be charged with ordinary trade interest. It will be presumed that hie ' Mill I 111 ' '•.«.(«•>#) t:-^ ■a i 148 ORDER XLII. SEC. 13. ^'^1 c 1.1- acoonntfl have been taken in th« ordinary way in which commercial accounts are taken, viz., with 6 per cent interest, made up annually, and therefore with reats, Penny v. Aviton, 3 Jur. N. S. 62, V. C. Wood. Ill Williama v. Powell, 16 Beay. 461, the executor had engaged in trade and mixed the trust fund with hie own money at his bankers, and he was charged 5 per cent, compound interest. And in Heighington v. Grant, 1 Ph. 600, «. a. where the executor had employed the trust money in his business as banker and shopkeeper, he was made to account with 6 per cent compound interest Many decrees have no doubt been made formerly under such circum- stances charging only simple interest, but the cases above cited, it is believed, indicate the practice of the court at present. Thus in Heathcote V. JIulme, 1 J. «fc W. 122, simple interest only, seems to have been charged. In Walker v. Woodward, 1 Russ. 107, compound interest at 6 per cent, was given, but the order there is said to have been obtained by surprise, per Mr. Sugden in Attorney-General v. Solly, 2 Sira.618, and in the last citeii case simple interest only was given. But besides the right of the cestui que trust to interest with rests in these cases, he has also the option of taking the profits realized from the employment of the fund, instead of interest, and this is an option he may properly enough insist upon before the master, under an ordiup.ry decred, and the very extensive language of this order. If he be er>titled to rest'j, he would seem entitled to take the substitute for them. Docker v. Somes, 2 M. & K, 656, is the leading case upon tljis subject, and Xihe judgment of Lurd Brougham contains an admirable exposition of the principles on which it rests. The right may arise either upon the ground of ownership, or of breach of trust; it is placed on this latter ground chiefly by Lord Brougham, " When a trustee or executor has used the fund committed to his care in stock speculations, though the loss if any must fall upon himself, yet for every farthing of profit he may make, he shall be accountable to the trust estate. So it is also, where one not ex- pressly a trustee has bought or trafficked with another's money, the law raises a trust by implication, clothing him though a stranger, with the fiduciary character, for the purpose of making him accountable." And, "were it not for the inconvenience attending the working of such a decree, it would seem the most reasonable way of taking the account. Fixing a «pecific rate of interest, in lieu of profits, is obviously only guess work ; all entatos, in that way, must benefit equally, though the pr(^l, and the risk, may be infinitely varied. In Palmer v. Mitchell, 2 M. «fe K. 612, n. Sir W. Grant Jecreed an ac- count of profits arising from the employment of the funds in trade, and in McDonald v. lichardson, 1 Gifii 81, a like decree was made. V, C, Stuart stating tlie rule to be, that where an executor employs assets in carrying on a iradu without authority he is bound to account for, and pay over, all the profits, or he may be charged with interest at tiie option of those beneficially entitled. ORDER XLII. SEC. 13. 149 In the HJinple caae of an employment of trust funds iu a sejiarate and distinct trade or adrenture, there cannot be much difficulty in ascertaining; the profits, but when the executor or trustee employs them in his oww business, mixing them with his own money, or in a partnership of which he is a member, the question becomes much more complicated. There is no general rule, by which the proportion of the profits, that the owners of the fund are entitled to, can be ascertained ; each case must depend upon its own ciroumstanoes. Id Cramhay v. Collins, 16 Ves. 218; 1 J. <& W. 267; 2 Rubs. 826, a partnership had been dissolved by the bankruptcy of one partner, who was entitled to S-Sths of the capital and profits of the business, and his assignees were held to be entitled to a like share of the profits of the continuation of the business after the bankruptcy, and of the money to be produced by the sale of what remained in specie of the capital and stock, and it was also held, in that case, that the assignees' share of the profits was not to be lessened, in respect of a debt which the bankrupt owed to the partnership. But Lord Eldon, (2 Russ. 344) guards himself from laying down a rule to apply to all ^ases He says, " After a very anxious consideration of this subject, I believe that it will be found, that the rule which is to be applied must be deduced in almost every case, from the particular oircumstancea of that very case." Another leading case upon this subject is Willett v. Blanford, 1 Hare 263 ; Willett &, Blanford carried on the business of picture-frame makers, Willett being entitled to 7-lOths of the profits and Blanford to S-lOths. They afterwards carried on another business in which they shared the profits equally. Willet died and appointed Blanford one of his executors, who carried on the business without withdrawing from the concern the share of Willett. On a bill filed by legatees of Willett, seeking to make Blanford account for the profits iu the same proportion as they had been divisible during the life of the two partners, V. 0. Wigram says, " I de- cided, at the conclusion of the argument, that the surviviug partner, one of the executors of the testatoi', having carried on the partnership trades without withdrawing therefrom the testator's property, wjis liable in equity to account to his estate for some portion of the profits made in each of these trades since the testators' death. It was strongly urged upon me that I ought at once to declare that the testator's estate was entitled to 'T-lOths of the profits made since his death, iu the trade of picture frame maker, and to a moiety of the profits of the other trade. I am of opinion that there is no rule of this ourt applicable alike to all cases, and that there is no rule, which is so established or general iu its application, that it is to be taken to be the general rule until circumstances are shown which displace it. The facts of each case must be fully brought under the view of the court before it can be in a position to state what justice to the party seeking its protection may require, with due regard to the inter- ests of other parties. The circumstances of some cases would almost ezolude the possibility of making a decree in any other form than that o ■"»=:r:,.. irn; ::."c::t :t:-^ f50 ORDl!R XLII. SEC. 13. which the plaintiffs claim in this case. Take for example, the case 8Qg- gested by Lord Eldon, in Crawshay v. Collins, of the mere conversion into money at a large profit, long after the testator's death, of the very property which belonged to the partnership at his deatli, and no other cir- cumstance to embarrasb the question. Again, the dissolution of a partner- ship pnma/acztf prevents new contracts being made on the joint account of the partners, but it necessarily leaves the old contracts of the partaer- ship to be wound up. In the absence of circumstances to alter the case, it "would be impossible to deny the right of the estate of a deceased partner to participate in the profits arising fiom winding up the old concerns; and if, in such a case, the surviving partners should have so mixed up new dealings with the old, that the two could not be separated, the right of the estt;te of the deceased partner to share in the profits of the new dealings might unavoidably attach. Again the whole or the substantial part, of a trade may consist in good will leading to rene «^als of contracts with old connexions. In such a case, it is the identical source of profit which operates both before rnd after dissolution ; and this appears to me to be the ground work of Lord Eldon's reasoning in Cook v. Collingridge, Oircumstances may be suggested of a very different kind. Take the case of a business in which profit is made by the personal activity and attention with which the use of the money capita^ is directed, and the case may require a different determination. Or there ;aay be the case of two persons being partners to- gether in equal shares ; one finding capital alone, and the other finding skill alone, and suppose the latter, before his skill had established a connexion or good will for the concern, should die, and the survivor, by the assistance of other agents, should carry on the concern upon the partnership premises, it oould scarcely be contended after a lapse of years, that the estate of the deceased partner was entitled as of course to a moiety of the profits made during that lapse of time after his death ; and if his estate would not be so entitled where the deceased partner had left no capital, it would be difficult to establish a right to a moiety, only because he had some small share of the capital and stock in trade enguged in the business at his death, without refer- ence to its amount and the other circumstances of the case.'' V. C. Wigram considered himself " bound by authority and reason to bald that the nature of the trade, the manner of carrying it on, tl.j capital employed, the state of the account between the partnership and the deceased partner, at the time of his death, and the conduct of parties after his deutb, may materially affect the rights of the parties." In Simpso ' v. Chapman, 4 DeG. M. dli: 0. ] 54, a testator was a member of a partnership at will in a bank, without any provision entitling the executor of a deceased partuer to an interest in the good will of the concern. The credit in which the bank was, rendered capital unnecessary, and at the tes- tator's death the property of the concern exceeded its liabilities by a very small amount, the testator's share in wliich was far exceeded by the balance due from him to the bank on his private account as a customer. After his doath the surviving partners admitted into the firm his sen, who was his ORDER XLII. SEC. 13. 151 executor, but who was not admitted into the firm in that character, and the business continued to be carried on without any separation or appropria- tion of the partnership assets as they existed at tha testator's death. In a suit against the executor, for the administration of the testator's estate, it was held that he was not ^accountable for the profits which he had received as a partner in the bank. Lord Justice Turner expressed his entire concurrence in the opinion ex- pressed by V. C. Wigram in Willett v. Blanford. Wedderburn v. Wedderburn, 22 Beav. 84, is one of the most recent cases in which this subject has been discussed, — Sir J. Romilly, M. B., acted upoa the principles enunciated in Willett v. Blanford, and Simpson v. Chapman, and finding that at the testator's death, the surplus was merely nominal, that the business to wind up was insolvent, and that the subsequent profits were attributable to good will, Cwhicb by agreement belonged to the sur- vivors,) and the personal exertions and capital of the surviving partners, I efused to give the representatives of the deceased a participation in the profits, as far as those profits were attributable to the good will and con- nexion in trade of the old firm, and that their share in that portion of the profits iu which they would be entitled to participate could not be estimated higher than the interest which bad been paid. Where an infant cestui que trust is interested, an enquiry will be made whether it is for his advantage to take interest or profits. Burden v. Bur- den, cited in Heathcote v, Hulme, 1 J. «fe W. 122. And this enquiry would seem to be within the province of the master under an ordinary decree. (d.) In cases of fraud rests will be made. ^Oaly one case need be referred to, if so much be necessary, to show that a person, who has fraudulently ret 'ssic affords no evidence of his intention to receive payment by dribblets, trf he is driven to take the possession by the non-paynKent of the interest, and the account therefore goes on till the whole debt has been satisfied. Per Lord Justice Turner in Nelson v. Booth, 8 DeG. & J. 119. If the interest be in arrear when possession is taken, rests are not made, Davis V.May, 19 Ves. 384; Coop. i,38; Wilson v. Cluer, 3 Beav. 136; Caldwell v. Hall, 9 Grant 110 ; and if not liable to account with rests when the possession is taken, the mortgagee does not become so liable until the whole of the mortgage dobt has been paid off, Wilson v. Cluer] Davis v. May, supra. He does not become so liable merely by the interest and arrears being paid, Finch v. Brown, 3 Beav. 70; Latter v. Dashwood, 6 Sim. 462. W^here the mortgagor had, before the mortgagees entered into possession, indorsed to thein bills of exchange for the arrears of interest ; the bills fell due after the possession was taken and were dishonored, and it was held that the interest was in arrear when possession was taken, so as to preclude the mortgagor from claiming to have tl.e accounts taken with rests, Dobaon V. Zand. 4 DeG, & S. 575. If the mortgagee in the exercise of his legal right choose to go into possession, when there is no interest in arrear, he must account with rests, Robinson v. Gumming, 2 Atk. 410; Nelson v. J?oo fendaut claimed to be a purchaser for value without notice, which was dis- proved, the decree, iinnecessarilj perhaps, directed the account to be taken with rests ; this point is not noticed in the report. In like manner in Montgomery v. Calland, 14 Sim. 79, the plaintiff sought to redeem against a mortgagee in possessicu, who by his answer set up an unfounded claim to the equity of redemption, and denied that the mortgage had been satis- fied, although a balance was due from him when he fyled his answer, the mortgagee was ordered to pay interest on the balances in his hands since the time when the mortgage was satisfied, besides portions of the costs. Although the mortgagee when he took possession may not have been liable to rests, yet when by the receipt of rents or otherwise, the whole debt became satisfied, rests will be made from that time, Wilson v. Metcalfe, 1 Rusa. 630; Lloyd v. Jones, 17 Siin. 491, in this last case the mortgagee was paid by the receipt of rents and profits pending the proceedings in the master's office under a decree to redeem. When the mortgagee Is himself in the occuputiou of the premises, and is charged with an occupation reut more than sufficient to pay the interest, h» will be charged with rests, if possession were taken wh«;u no interest in arrear, or if he is paid off by means of the occupation rent, Wilson v. Met- calfe, 1 Rusa. 530 ; Binnington v. Harwood, T, v has suffered it to lie dead. Then, to pursue that principle, must not the vendor, the legal owner of the estate, by a parity of reasoning, take care of the purchased estate ? He must. If he has received rent, he must account for it ; it" he has suffered tenants to run in arrear, he is responsible for the loss thereby occasioned. If possession of the estate was given, or any tender of pos- session was made, or the purchaser exercised acts of ownership over the premises, that may make a difference." Per V. C. Plumer, Acland v. Gaisford, 2 Madd. 28. In Wilson v. Clapham, 1 J. «fe W. 86, a decree for specific performance had been made with a direction for the vendor to account for rents and profits ; and a motion was made to vary the minutes so as to charge him further with what but for his wilful default he might have received, upon a suggestion that they had been suffered to run in ni-reat. And Sir Thomas Plumer, then M. R, directed enquiries to ascertain if the vendor had been in default, observing, " The care of the estate must of necessity belong to the vendor," the title being such that it was not safe, before the decree, for the purchaser to take possession, he becomes trustee for the purchaser, and what hardship is there in expecting him to take the same care of it as he would if it were his own ? He must take the measures that are adopted by every prudent landlord. If ultimately the estate is determined to continue bis owe,, he retains the rents; if not, he bauds them over to the vendee. Where the purchaser refuses to take poesessiou when bo might and •"n •■-!■»•, -'W.' >7J ^wW(** ^-..-w < mm 156 ORDER XLII. SEC. 13. m ill«^ ought tu have done to, he ciinDot make the vendor answerable for remain* ing in the possession of the premises, Dakin v. Cope, 2 Russ. 1*70. L. J. Knight firuce, observed in Sherwin v. Shakapear, 5 DeG. M. & G. 6\1, 531. " My impression from the course of the court (as far as I have been acquainted with it) and upon principle, is, that a special case ought to be made for the purpose of inserting those words (charging wilful default) in a decree for specific performance, where the vendor has been in possession during a tinns in which he is to account for the i'ents," and L. J. Turner, observes in the ^ame caae, p. 680, " There is a vast distinction between the position of a vendor and that of a mortgagee who enters into possession of the estate, — in the case of a vendor, the vendor does not take but remains in the possebsion of the estate. It may ultimately appear that the estate of which he is in possession may never become the estate of the purchaser at all, and I think that if he continues in the due and ordinary course of management, it is not the course of this court to charge him, upon the principle of his having been converted into the position of a mortgagor for the purchase money." In the case of Martin v. Norman, 2 Hare 596, on a bill by the vendor for specific performance, the decree charges the plaintiff with the rents received or which, but for his wilful default, he might have received. The facts are not given at much length, and this point does not seem to have been argued, as the report is confined to a discussion on the effect of a " travers- ing note," but so far as the report does go, there seems no ground for a decree of this nature, and it cannot be considered as an authority, in op- position to the cases cited above. In those ca^^es in which a purchaser for value is evicted by a better title, of which he had notice, he is considered as a trustee for the true owner, and is not, in the absence of special circumstances, chargeable for wilful default, Howell v, Howell, 2 M. & C. 478. In that class of cases where deeds or contracts have been obtained by fraud or misrepresentation, and possession taken under them, the same rule applies, although the reason for it may not be apparent. Perhaps it may be on the ground that the person in possession assumed to be owner, and will, in the absence of evidence to the contrary, be considered as deal- ing with the estate, as a provident owner would. Whatever may be the reason, the authorities are numeious, th:it he can- not be charged in this stringent mode without a special case, Murray v. Palmer, 2 Sch. &, L. 474 ; where a conveyance was obtained from a woman in ignorance of her rights, and upon misrepreaeiitatiou of tlie circumstances of the property, was set aside; but Lord Redesdale refused to charge him with what, but for wilful default, he might have made. Masters v. BrahaiL, Seton (2nd. Ed.) 307 ; where Brabau got into possession and claimed under a forged declaration of trust, yet was only charged with rents and profits received, Trevtlyan v. Charter, 4 L. J. N. S. 209; 11 OL A Fm. 714 ; 9 Beav. 140 ; where a purchase by a solicitor was set aside, the decree only directed him toaccouut for rents received, (Se<07( (2nd. Ed.) ORDER XLII. SEC. 13. 157 I' 802; Nevilh v. NevilU, 6 Grant 121; a cooYeyance fraudulently obtained by a son from his father was eet aside, but the decree ouly ordered the son to account for reuts received. The executor of aper!>on who has obtained and held possPBsii'n, under an erroneous idea of title, ih liable to account to the true owner, for the rents uid profits during the testator's possession, Monypenny v. Brhtow, 2 R. dc M. IIY. A testamentary guardian, Mathew v. Brise, 14 Beav. 341 ; and a statu- tory guardian, Duke of Beaufort v. Berty, 1 P. Wms. *704 ; are truptee? and must account in the ordinary way, and will not be liable for wilful default except upon a special case. As to mere wrong-doers there are not many cases in which they are liable at all to a suit in Equity, the remedy against them being a legal one, but when a person enters upon an infant's estate he i& treated in Equity as his bailiff, Newburgh v. Bickerxtaffe, 1 Vern. 296 ; Bloomfield v. Eyre, 8 Beav. 250 ; Hicks v. Sallift, 3 DeG. M & G. 782 ; and it is apprehended that the decree in such a case is only for the ordinary accounts. But to entitle the infant to un account he must have been in possession by himself, his guardian, ur agent, Crowther v Crowther, 28 Beav. 305. As to the time for which an account of rents may be had, it io to be noticed, that prior to this order, if the statute of limitations were intended to be insisted on as a bar to the account, it required to be set up in the pleadings ; but now the whole contest is transferred to the master's office. The 22 Vic. e. 88 «. 19 ; Con. Stat. U. C. p. 873 ; the same as the Imp, Act, 3 160 ORDER XLII. SEC. 13. («. f ' •> c ►-r. ■m: «*■ f ■* . « v.. :.r .,; kc; ^mmm demptioD, SanJon v. Hooper, nipra ; Trimleston v. JIamill, 1 B. & B. 886 ; Fifher, s. 904 ; Bavey v. Durant, 1 DeG. & J. 536, 654 ; Constable v. Gueit, 6 Grant 510, Wli e le a person agreed to purchase a leasehold supposing the seller to have an uniuciimbered title, and went into possession, and laid out large sums in improvements, but not having made enquiry for the title deeds was fixed \nth conHtructive notice of a prior sub-lease by way of mortgage, which he was compelled to pay oflf, and the seller having conveyed the reversion to a third party, the purchaser was held not entitled to a specific perform- ance, but declared entitled to bold the estate as against that third party, not only for the sum paid to the prior mortgagee, but also for the money paid to the seller and for any sums properly laid out by him in permanent im- provements in the character of a mortgagee ; V. 0. Stuart refusing to allow for all sums laid out in improyements made under the impression that be was owner, jyt/'Ama V. ^?nery, 6 Jur. N. S. 1047, 1061. J .. Money paid by mortgagees in possession for taxes, for a renewal of leases, for head rent, or in supporting the mortgagor's title to the estate, or to make their title good against the mortgagor at law or in equity, or in taking out administration to the mortgagor to secure himself in case he were defeated at law, will be allowed, Fisher s. 900, and cases there cited. But by Ord- 58, s. 7, a mortgagee who has proceeded at law shall not be entitled to his costs in equity, unless the court, under the circumstances shall see fit to order otherwise. Under this order the master has no dis- cretion. If the decree direct the coats in equity to be taxed he must do go although it should appear for the first time in the progress of the suit, before him, that proceedings had been taken at law. If a mortgagor seek to deprive the mortgagee of his costs in equity it would therefore seem that the facts should appear upon the pleadings and a direction to that effect made in the decree, for it is apprehended it would be too late to seek it on further directions. In a case, however, where upon a bill being filed by a junior mortgagee for redemption and foreclosure, the elder mortgagee discontinues proceed- ings in a suit for foreclosure, the master would seem to be authorized to tax him his costs of his own suit and add it to his debt, Lomax v. Hide, 2 Vern. 185. But money paid for insuring the mortgaged property, in the absence of any covenant for that purpose in the deed, will not be allowed. The mortgagee is entitled to the benefit of the insurance money, and not being liable to account to the mortgagor for it, he cannot charge him with the premiums, Bohson v. Land, 8 Hare 216; 4 DeG. %. ^%,. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ■- IIIIIM |50 i^ IIM !! m I: i^ 122 1.8 1.4 IIIIII.6 V]

9. o 7 /A Photographic Sciences Primnrpfinn 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 ii n < i 1B2 ORDER Xiill. SEC. 14. em to tioQ to confine his powers to oases of rents (fee, and not to apply ih aocouots of personal profit ; and that this intention was not to be controlled by the general words of the last clause. That a decree siniply directing tMCOunts to be taken, and a decree directing them to betaken with a wilful default clause, were two entirely distinct things. The 'first wan ob'taibed as a matter of course from an accounting party ; while the latter could only ' be had on a bill charging specific instances of misconduct,'and established tj evidence. And that these general «dr the the the pal ServicQ of subpoena to appear and answer without endorsement may be set aside on speedy application, Johnson v. Barnes, 1 DeG. A S. 129 ;.' omission of the address for service does not necessarily make the writ, voif^ but the court \vill Btiiy. process till :tho rule i|S pomplied with^^rtcf ,vv ir«^6,.2 Har.e 611.. Au attachqx^nl was discharged. with coRts, e.ndoj|P9-. m^nt of 6ubp.cB Where a solicitor to a party dies, no order is required for appointment of a new solicitor, Whalley v. WhalUy, 22 L. Jns. Ch. 632. Formerly, if on the deatli of the clerk in court of a party, he refused to appoint another solicitor, such party must have been served with a sub' poena to name a clerk in court,. Ratcliff v. Roper, 1 P. Wms. 420 ; Francklyn v. Colhoun, 12 Ves. 2 ; Gibson v. Tngo, 12 Jur. 105. It is pre* fiuioed the same practice must still be followed if the paTty refuses or , neglects to appoint another solicitor, ■ .' '? ' 3. Every party suing or defending in person is to cause to be endorsed or written upon every writ whiclj,, he, sues out, and upon every information, bill, demurrer, answer, or other pleading or proceeding, his name and place of residence, and also (when his place of residence is more than three miles from the office where such pleading or other proceeding is filed) another proper , place, to be called his address for service, Kot more than three miles from the said office, where writs, notices, or- ders, warrants, and other documents, proceedings and,, written communications may be le^^ for him, {Eff.^f,, Con, Ord, 3, r. 5.) : ^ . See notes on piece iing section.. 4. In future office copies of pleadings and affidavits are to be made by the solicitor, and examined and certi- fied by the registrar. Any party requiring an office copy of any pleading or affidavit is to make a written applica- tion for the same to the solicitor of the party by whom it has been filed or on whose behalf it is to be used ; and when such party has no solicitor, then to the party himself. When an application is made for an office '**^4L''" :-3!» '■J 168 ORDER XLIII. SBC. 5. copy of any pleading or affidavit, it is to be delivered within forty-eight hours from the time of such demand ; and any further time which may elapse before the deli- very thereof is not to be computed against the party demanding the same. Office copies of pleadings and affidavits are to be written on paper of convenient size, in a neat and legible manner, and unless so written the \ solicitors furnishing them are not to be paid for the ^ame. See Ord. 40. s. 4. Pleadings and depoaitiona are usually read from office copies, which, for this purpose, musi; be duly signed by the proper officer, Gee v. Ourneyy -8 Beav. 816. Neither drafts nor office copies of pleadings are considered by the court, as evidence in themseWes, and if a doubt is suggested as to their accuracy, the court will refer to the original record ; the practice of referring to drafts or office copies, appears to have been adopted merely to save the court the trouble of inspecting the originals, which are, never* ^theless, always understood to be in court, Daniels Ch. Fr, 161. Taking an office copy of an answer for want of which defeniiant is in -contempt is a waiver of the contempt, Herritt v. Reynolds, 6 Jur. N. S. 880; 8 W. R. 405. I By demanding and accepting office copies of affidavits referred to iu any \ notice of motion, the party demanding them, is precluded from taking the I objection that they were not filed at the time of serving the notice. : i tl':.} 111 .^;: wm :1'.r 5. All documents of whatever nature required to be transmitted to the registrar of the court, or any of the deputy registrars, may be so transmitted through the post office, under cover, directed to the regstrar or deputy registrar, as the case may be, sealed with the seal of the party required to transmit the same ; or they may be for- warded by a special messenger : in that event the mes- senger is to make oath, before the registrar, or deputy registrar, that he received the document from the hands of the party required to transmit the same, — that it has not been out of his possession since he so received it, — and that it is in the same state and condition as when it was placed in his hands for transmission ; and the name, style and place of residence of such messenger are forthwith ORDER Xlilll. 8ECS. 6, 7, 8, 9. 169 lor- to be endorsed upon the document so transmitted by the registrar or deputy registrar, as the case may be. When the examination of witnesses before a judge is to be had in anj iowD or place, other than that in which the pleadings In the cause are filed, it shall be the duty of the party setting down the cause for such examiuatioD, to deliver to the registrar or deputy registrar, with whom the pleadings are filed, a sufficient time before the day fixed for the examination, a pro' cipe requiring him to transmit to the registrar or deputy registrar, where such examination of witnesses is to be had, the pleadings in the cause; and at the same time to deposit with him a sufficient sum to cover the ex* pense of transmitting and re-transmitting such pleadings, mid therefore, it shall be the duty of such registrar or deputy registrar forthwith to tran8> mit the pleadings accordingly, Ord. 9*7 s. 2. 6. Bonds executed upon an order for security for costs are to be given to the registrnr, or deputy registrar, with whom the pleadings in the suit are filed ; all the defend- \ ants are included in the same bond ; and the penal sum \ to be inserted therein is to be fixed upon the application \ for security by the judge or master who makes the order, i As to the cases in which security for costs will be ordered. Fee notes to order 6, a. 6. The penal sum inserted in the bond is usually £100. For form of bond, see appendix of forma. 7. The amount to be deposited with the registrar of the court on any petition of re-hearing is ten pounds. ' As to costs on dismissal of petition of re-hearing, see notes to order 9, s.n. 8. Money ordered to be paid into court is to be paid > into the Commercial Bank, with the privity of the regis- j /^ trar ; the solicitor, or party paying the same, is to furnish j , „ the bank with a correct copy of so much of the order of T ^ court as relates to such payment, with the names of the i parties to the suit, and the date of the order. All sums j of money to be paid out of the court are to be so paid upon the check of the registrar, countersigned by one of the judges of the court, and not otherwise. Sec Chancery Act, s. 72, and notes. ' 9. All orders of course are to be drawn up by the registrar upon precipe. ^.K .'H«^^.^ /. CI 3 t'i > If -' n . .:..c *^y4 170 ORDSR XLIII. BKVb, 10, 11.^ All,orderB. in tho progreas of a cause which are drawn up by the registrar without the special direction of the court may be drawn up by the deputj registrar with whom the bill ia filed, Ord. 44 s. 6. Decrees fur redemption, or foreclosure of mortgage or for sale are now drawn up upon precipe, Ord. 98 ; but s^ch decrees cannot be issued bj. . aeputy registrars. The court will not set aside a decree regularly obtained upon precip9» . except upon an affidavit shewing that the defendant will be damnified by the decree being permitted to stand ugainst him, Mitchell v. Crooje,*, 2 , Grant 123. 10. The evidence read upon the hearing of any cause, . or matter is not to be stated in the decree or order, but must be entered in the registrar's book at the time of the hearing. The evidence read by each side must be stated distinctly by counsel, in : order that the same may be entered by the registrar before the casQ 1$ ^ closed, and a schedule of all the exhibit^ used upon the hearing must be , deposited with the registrar Ord. 63. . "' Where plaintiff reads part of a defendant's answer, the whole is to be entered as read ; a' defendant not called on for his defence may enter all bia evidence as read ; proceedings in former suits respecting the same mattei^a maybe entered as nmd, Mariby v. Bewicke, 8 Jur. N. S. 685. Where the reception of evidence has been objected to at the hearing, the manner of entering should be such as to shew what evidence has been re- ceived, Watson V. Parker, 2 Phill. 5 ; harher v. Morrell, Ibid, 458.. Evi- dence not to be entered as read de bene esse, Drake v. Drake, 26 Bear^.^., 641. Evidence entered as read saving just exceptions, Oee v. Gurney^ 8 Beav. 816; but entry in that way stated by registrar to be irregular, Sherwood V. Bev^ridge, 2 Coll. 536; and.see ITanrf/orrf «. Handford. 4 Russ. 212. Evidence which does not appear by the registrar's minutes to have beetQ. . re^ ought not to be ordered subsequently to be entered, Eden v. Earl of .5i* :-:*• ■rj :3 172 ORDER jKLIII. 8EC. 12. Ui the party xvill be relieved upon terms, Fumival v. Bogle, 4 Rues. 142. If the party did not in fact consent, his remedy is against the counsel, Bradith v. Oee, Amb. 229. A decree by consent of counsel cannot be set aside either by rehearing or appeal. Ibid ; nor by proceeding in the nature of a bill of review, Webb v. Webb, 8 Swanst. 668. If a party has L cen induced by fraud to consent, or has by mistake consented to a decree, the court hai power to relieve him, Davenport v. Stafford, 8 Beav. 603. The court hag refused to decree specific performance of an agreement for the compromise of an action, to which the counsel had consented, without the authority of his client, Swinfen v. Swinfen, 3 Jur. N. S. 1109. Where judgment has been given, the plaintiffii solicitor should leave the brief with the registrar in order that he may prepare the minutes. In practice the minutes are frequently drawn by the party in whose favor judgment has been given, but this is irregular, and all minutes should be prepared by the registrar. The miuutea having been prepared, the party having the carriage of the decree serves notice on the other parties to the suit, appointing the day and hour for attending before the registrar to settle them. If the parties do not attend it 13 usual to serve a second notice, but an order drawn np in the defendant's absence will not be set aside unless -error be shown, Smith v. Acton, 26 Beav. 669 ; but if the minutes have been settled by the registrar, they cannot be altered in the absence of any of the parties interested. Major v. Major, 13 Jur. 1. When upon a perusal of the minutes, it appears that anything is doub(> fully expressed, or contrary to the meaning of the court or that something has been omitted which should have been inserted, and the registrar refuses to alter them, an application must be made to the court to vary the minutes. This is done by notice of motion served upon all parties, and the alteration desired should be expressed in the notice. There is no time limited within which the motion must be made, but the application will be entertained at any time while the decree remains in minutes. Questions of importance should not be raised on motions to vary minutes, but this rule is not strictly adhered to, and discussions of great moment have been permitted, Perry v. Phelipa, 1 Ves. 260. The minutes having been settled, the decree is engrossed and notice is served appointing a time to pass it. A notice to settle or pass given the ■one day for the next, is sufiicient notice, lie Christmas, 19^ Bear, 619. The parties having attended upon the notice to pass, and passed the decree, it is next entered in the decree book in the registrar's ofiice, and the date of such entry is written in the margin of the book. All proceedings under a decree or order before it is entered, are voidable and irregular, ToUon v. Jervia, 8 Beav. 864 ; Drummond v. Anderson, 8 Grant 160. A decree founded on a bill taken pro confesso, must be passed and entered as other decrees, Ord. 14, s. 4. As long as the decree remains in minutes it may be varied upon a i. ORDER XLIT. SBC. 1. 17$ ite ler V. ree motion to vary the minutes, but after it is passed and entered the oonrt will not entertain any application to alter it, unless as to matters which are quite of course. The proper mode of rectifying it in other matters is by rehearing the cause. But where a clerical error has crept into the decree, or where some ordinary direction has been omitted, the court will allow an application being made to correct it. This application is made on petition, Moffatt v. Hyde, 6 U. 0. L. J. 94. A decree was not allowed to be varied by giving costs to a defendant who would have been entitled to them if asked at the hearing, Coltnan v. Sarell, 2 Cox 206 ; and Sir John Leach declined to correct a decree in which the error was apparent, because the alteration proposed would have required new directions upon the corrected part, Brookfield v. Bradley, 2 S. <{; S. 64 ; but where the decree in a creditors' suit, omitted the usual direction to take an acoounf< of the personal estate, it was ordered to be inserted Orchard v. Matheton, n Ves. 298. It is a well established principle, tliat every order and decree, however erroneous, is good until it is discharged, C/iuck v. '^renter 2 Ph. 11 '7. Office copies of decree to bo served on part.^i added in .he master's office, mvy be certified by the deputy registrar wher. ohe reference is made lO, Ord. 66. Every decree affecting land may be registered in the registry office of \ the county where the laud is situate, on a certificate by the registrar or a deputy registrar of the court, setting forth the substance and effect of the ^ decree, and the land affected thereby, see Chancery Act, «. 65. The court may under special circumstances vacate the enrolment of a decree, Wood* v. Woods, 12 Jur. 662; as where the conduct of the party obtaining the enrolment was such as to lead the other party to suppose that the decree would not be enrolled, Wiekenden v. Rayaon, 8 W. R. 462. But not unless the party has been guilty of malafidea, or has misled his opponent, Backhouae v. Wylde^ 3 Jur. N. S. 398 ; Williama v. Page, 6 W. R. 864. Decrees and orders of the court may be enforced by attachment and sequestration, unless they are for the payment of money when they can be enforced by writ oi feri Jaeiaa, and not by attachment. Where a defendant who was to be served with a decree refused to receive the copy, upon which it was left at his dwelling house with his servant, it was held sufficient, Pyeroft v. Williama, 6 W. R. 464. In a proper case substituted service of a decree will be permitted, Burlton v. Carpenter, 11 Beav. 33 ; Be Mourilyan, 18 Beav. 84 ; and the order for such purpose may be obtained on an ex parte application, supported by affida- vit, Danfordv. Cameron, 8 Hare 829. XLIV. — Deputy Masters and Deputy Registrars. 1. Deputy masters and deputy registrars respectively are to perform the duties of their several offices in the ■•J •'J :3 %4 Oia^DEB zLiv; SKCS. 3^ 3, 4. 1 i lit , "*l «»1 •*'• isame manner, pnd under the same regulations as the like duties are performed by the master and registrar respec- tively ; and all orders, rules aiid regulations, in force res- ][)ecting the master alid registrar respectively, and respect- ing the regulations of thisir respective offices, are to be in force ttud applicable to the deputy masters and depiity registrars respectively, in relation to such duties as they are hereby required to perform; and the like sums and fees payable to thte master and registrar respectively, are to be payable to the deputy masters and registrars respec- tively iff relation to similar matters. Deputy registrars and deputy masters are appointed by the jddgffs; ^ho inay at their discretion retaove them, Con. Stat. U. C., c. 12, ^. 13; they may retain' for their own use all the fees of office, hot belonging to arty fee toad, Ibid, a: 16. 2. A bill of complaint may be filed either virith the re- ^f' gistrar, or with a deputy registrar, at the option of the ' plaintiff; but all the pleadings in any cause must be filed at the same office ; and virhere a bill is filed in the office * of a deputy registrar the endorsement thereon must be *':* Varied accordingly. ; (^ « . See notes on Ohancery Act, «. 1 3 ; Order 9 a. 2, and notes. As to returns by deputy registrars, see Ord. 66 s. 2. Deputy registrars may issue certificates for registration, Con. Stat. tf. 0., €. 12, ««. 64, 65. (■*■ 3. When a bill is filed with a deputy registrar, the deputy master and deputy registrar respectively iii the w county where such bill has been filed, are to have all 'isuch powers and authorities in relation to such suit as belong to the master and registrar respectively. The plaintiff has, prima facie, a right to have the reference directed to the master resident in the county where the bill is filed, Macara v. Owynne, 3 Grant 810. 4. In addition to the powers and authorities conferred upon him by the previous section, the deputy master in ^'the county where the bill has been filed is to hear and dispose of all applications in the progress of stich suit, for ORDER iLIY. &ECS. 5, 6. (♦^. il5 ''tWe Mbwing ptirpbSes, viz : (1.) To aplpbint gtiardl^s ■''^ad litem for iiifahts. (2.) For time to ansT^eror d^Witir. (3.) For leave to amend before Replication. (4.) To p6k- pone the examination of witnesses, or to alfow filrther time for the production of evidence. (6.) For security for costs. t^or tlid mode of proceeding to appoint a guardian ad litefri, see Ord, 18, k. 6 ; tind us to amendment of bills, see Ord. 9, ss. 9, 10, 11. 12, 18. Ab to security for costs, see Ord. 6, s. 6, and notes. 6. All orders in the progress of a cause which are drawn up by the registrar without the special direction of the court may be drawn up by the deputy registrar with whom the bill is filed. ' 6. Each deputy registrar is to keep in his office a book to be called " The Solicitor and Agent's Book," in which each solicitor residing elsewhere than in the county in which such deputy registrar's office may be, is to specify the name of an agent, being a solicitor of this court, and having an office in the city or town where the office of such deputy registrar is situated, upon whom all writs, pleadings, notices, orders, warrants, and other docuinents, and written communications in relation to proceedings conducted in the office of the deputy master or deputy "registrar of such county, may be served. All writs, pleadings, notices, ordfTs, warrants, and other documents, and written communications in this sec- tion specified, which do not require personal service upon 'the party to be effected thereby, may be served upon his solicitor residing in the county where such proceedings "are conducted, or, where such solicitor does hot reside iti the county where such proceedings are conducted, then ^ 'upon the agent named in "The Solicitor and Agent's Book," as herein providec' And if any such 'solicitor neglect to cause such entry to be made in "The Solicitor and Agent's Book," the weaving a copy of any such writ, pleading, notice, order, warrant, or other document, or i '."■x* ■J J ■ ;' > 1 ;i 'j^: I'm i t f * ( < m ( I ff •t 1' ,1 t •c:t • i ll« 176 ORDER XLY. SECS. 1, 3. r> written communication for the solicitor so neglecting as aforesaid in the office of such deputy registrar, is to be deemed sufficient service. For slight alterations, see Ord. 16. XLV.— Costs. 1. Upon interlocutory applications, where the court deems it proper to award costs to either party, it may by the order direct payment of a sum in gross in lieu of taxed costs, and direct by and to whom such sum in gross is to be paid. And the same may likewise be done upon such proceedings before the court or in chambers as have heretofore been matters of reference to the master. And it shall also be competent for the deputy master^ upon disposing of applications made to him under Order XLIV., in like manner to direct payment of a sum in gross in lieu of taxed costs, and to direct by and to whom such sum in gross is to be paid. The giving of costs in equity is discretionary, Bennett College v. Carej/f 8 ' Bro. C. C. 890 ; but in contentious cases the costs of th e litigation should, as a general rule, follow the result, Bartlett v. Wood, 9 W. R. 817 ; and see Oolburn V. Sitnms, 2 Hare 643 ; Millington v. Fox, S M. ■ It ' ► ORDER XLY. 179 Appointment to settle minutes, or to pass decree or order, copy and service 3 For every hour's attendance before the registrar by his ap- pointment, on settling minutes, the same being noted by the registrar 6 For every hour's attendance before the regisrar by his ap- pointment, on passing decree or special order, the same being noted by the registrar 6 Where minutes settled, or decree or special order approved of or passed between the solicitors after appointment issued by the registrar 5 [In'such case no fee to be allowed to either party as for attend- ance before the registrar in respect of the same settling or passing.] Fee on all writs and orders of court to the party obtaining the same 5 Instructions for brief 6 Brief, per folio, including briefing and fair copy, subject to be reduced by the master, if the same contain superflu- ous matter, or be of unnecessary length 6 Observations, or other original matter in brief, per folio,.... 10 [No fee or brief ffor second counsel to be allowed unless by order of a judge ; and a brief of depositions or special affidavits to be al- lowed only where fee and brief for second counsel is taxed, and then only by the direction of a judge upon special application.] Advertisement for sale of real and personal estate, under the direction of the court, including all copies, except for printing 6 Copies for printing— per folio 06 Fee on conducting sale — including arrangementa with auc- tioneer, correcting proof-sheet, (if any,) and attending sale 15 For 6vr ry hour beyond three occupied at such sale 5 Drawing bills of costs and attending taxation 5 Drawing judge's appointment, and attending for his signa- ture, and to serve 5 Every necessary attendance 13 Postages — the amount actually disbursed. [The sum allowed for copying and briefing shall be six -pence per folio, except where authenticated by the registrar, or read over by the master ; provided that the same shall not in any case exceed one is* ;:3 t: .:;■«■ • mlt»* 180 ORDER XLT. half of the amonnt which shall be allowed for drawing what nH H be so copied or briefed.] COUNSEL On argument at judge's chambers in cases proper for the at- tendance of comisel, to be increased at the discretion of the judge £0 10 On settling and signing pleadings and petitions respectively, where from their special nature the master shall think the pleading or petition a proper one to be settled by counsel 10 On consultations 150 On special application to the court, arguing demurrer or other special argument, or at the hearing of a cause... 16 To be increased, in the discretion of the master, to 6 [Any fee exceeding £5, to be allowed only by order of a judge, to be obtained at the cost of the solicitor making the application.] MASTERS IN ORDINARY AND DEPUTY MASTERS ; 1 CAS- TERS AND MASTERS EXTRAORDINARY. Every summons or warrant £0 1 3 Administrating oath, or taking affirmation 10 Marking every exhibit 10 Drawing depositions, reports or orders, per folio 10 One fair copy when necessary, per folio 6 Copy of papers given out when required, per folio 6 Every attendance upon a reference 6 For each additional hour 6 Every certificate 2 6 Filing each paper 4 Taxing costs, including attendance 6 Making up and forwarding answers and depositions 13 Every special attendance out of office, within two miles 6 G Every additional mile above two 10 Reading affidavit — per folio 1 Matter added — ^per folio 10 REGISTRAR. Entering parties names and filing bill, answer or de- murrer £0 2 6 Entering and filing all other pleadings, interrogatories and depositions, or other evidence 10 Filing and registering affidavits, exhibits, or other papers 4 OHDBR ZLYI. PEC. 1. 181 Subpoena, including filing precipe 2 8 Special writ, writ of commission 5 Office copy of papers required to be given out — per folio... 6 iSxamining and authenticating same, when office copy pre- pared by solicitor — per folio 1 Attendance on appointment of guardian 2 Amendment of record when re-engrossment not necessary-^ per folio 10 Drawing fiat on petition 10 Attending a judge for his signature to any document or paper 18 M^ing up, and forwarding interrogatories 18 Setting down cause 2 6 Certificate of pleadings being filed 20 Certificate of state of cause 2 6 Drawing minutes of decree or special order, per folio 10 Drawing decree or order, per folio Old Ikitering same, per folio I'ee on payment of money into court 18 Fee on payment of money out of court 13 Fee on admission of solicitor 60 Certificate on each office copy of the time of filing bill 13 Searching files in office 10 Commission appointing deputy master or registrar or master extraordinary 10 XL VI. — Process. 1. — No writ of execution shall be issued for the pur- pose of requiring or compelling obedience to any order or decree of the court ; but the party required by such order or decree to do any act, shall, upon being duly served with such order or decree, he held bound to do such act in obedience to such order or decree. The original order or decree should at the time of serTice be produced and shewn to the person served ; and if it be intended to enforce obedience by process of contempt, in the event of non-compliance with the decree or order, the copy served should have the endorsement required by sec. 6. Any party directed by the master to bring in any account, or do any other act, is to be held bound to do the same in pursuance of the direction of the master in that behalf, without any warrant or written direction being served on him for that purpose, Ord. 42, s. 2. »■■»• .aw 'J r^fm » It' [I'M: ••.-•■« •*j I. . :.J]t !--^ 182 ORDER XLYI. SECS. 2, 3. 2. If any party who is by any order or decree ordered to pay money, or to do any other act in a limited time, shall, after due service of such order or decree, refuse or neglect to obey the same according to the exigency thereof, the party prosecuting such order or decree shall, at the expiration of the time limited for the performance thereof, upon filing with the registrar an affidavit of the service of such order or decree, and of the non-perform- ance thereof, be entitled without further order to a writ or writs of attachment against the disobedient party; and in case such party shall be taken or detained in custody under any such writ of attachment without obeying the same order or decree, then upon the sheriff^s return that the party has been so taken or detained, the party prosecuting such order or decree shall be entitled without further order to a commission of sequestration against the estate and effects of the disobedient party. No writ of ittachment can now issue for non-payment of money, but in place of the attachment, a writ of fi. fa. is substituted. Commissions of sequestration when issued are directed to the sheriff B. 4. A warrant to the sheriff to commit a pnrty is not irregular, though no return day is mentioned in it, Prentiss v. Brennan, 1 Grant 497. On a motion to commit for breach of an injunction, it ia not necessary for the affidavit to state that the writ was under the seal of the Courts Farwell v. Wallbridge, 3 Grant 628. A married woman, defendant, living with her husband, was ordered to bring certain accounts, as administratrix, into the master's office, and having disobeyed the order, an application to commit her for contempt was refused, the general rule being that the husband must answer for the wife's default, unless he shews some ground of exemption, Maughan v. JFt7*e», Cham. R. »1. ,^ 3. If an attachment cannot be executed against such party so refusing or neglecting to obey such order or decree, by reason of his being out of the jurisdiction of the court, or of his having absconded, or that with due diligence he cannot be found, and the court be satisfied by affidavit that such is the case, the party prosecuting such order or decree shall be entitled to an order for a ■ / ORDER XLYI. SBCS. 4, 5, 6, 7. 183 commission of sequestration against the estate and effects of the disobedient party ; and it shall not be necessary for this purpose to sue out an attachment in the first in- stance. Upon the ISheriffs return of non esi to a warrant for the committal of ft party, a sequestration will issue at once, PrentUa v. Brennan, 1 Grant 497. 4. Commissions of sequestration are to be directed ta the sheriff, unless some good reason exists for the con- trary. For the fees to which the sheriff is entitled on commissions of seques-^ tratioD, see Ord. 65. 6. Attachments with proclamations and commissions of rebellion are hereby abolished ; and it shall not be necessary, in order to enforce any order or decree, to obtain any order for, or sue out a warrant to, the ser- geant-at-arms. 6. Every order or decree requiring any party to do any act thereby ordered shall state the time after service of the decree or order within which the act is to be done ; and upon the copy of the order or decree which shall be served upon the party required to obey the same, there shall be endorsed a memorandum in the words, or to the effect following, namely, " If you, the within named, {here insert the name of the party ^) neglect to obey this order or decree by the time therein limited, you will be liable to be arrested by the sheriff ; and you will also be liable to have your estate sequestered for the pur- pose of compelling you to obey the same order or decree without further notice." 7. Subpcenas for costs are hereby abolished ; a decree or order directing the payment of costs is in future to fix a time for such payment ; and such decree or order shall be enforced in the same manner as any other decree or order directing the payment of money ; for this purpose it shall be necessary to serve only a copy of so much of the decree or order as directs the payment of such costs, "^^' 3 184 O&DBR ZLTII. ""1 :fi:: and the time to be fixed is to be a certain time after suoh service. Under the practice which has been introduced sinoe the'22nd Vie. oh. S8 oame into force, it is not necessary to serve the order. On filing the, master's certificate of taxation a writ of fi. fa. is obtained at once. 8. It shall not be necessary to issue any writ of attach- ment or injunction upon any decree or order for delivery of possession, but the party prosecuting such decree or order, upon filing with the registrar an affidavit of service of the same, and of non-compliance therewith, shall be entitled without further order to a writ of assistance. As to order for delirery of possession in mortgage suits, see Ord. 82, s. 1; Ord 69. 9. No order for the production of deeds, papers, writ- ings or documents, made under the 20th Order of this court, shall require personal service ; if the party re- quired to obey the same shall have a solicitor, it shall be sufficient to serve the same upon such solicitor ; but any writ or writs of attachment to be issued for disobe- dience to any such order, must be obtained according to the present practice by orders nisi and absolute, and such orders nisi must be personally served. 10. Every person, not being a party in any cause, who has obtained any order, or in whose favour an order has been made, shall be entitled to enforce obedience to such order by the same process as if he were a party to the cause ; and every person not being a party to any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for en- forcing obedience to such order as if he were a party to the cause. •Vl.tj XL VII. — Powers of Court or Judge. The power of the court and of the judge sitting in chambers to enlarge or a bridge the time fordoing any act, or taking any proceeding in any cause or matter upon ORDERS XLTIII. L. 185 80ch (if any) terms as the facts of the case may require, or to give any special directions as to the course of pro- ceeding in any cause or matter, is unaffected by these orders. XLVIII. — Orders to take effect from Date. The following Orders and parts of Orders, comprised in the General Orders of the 3rd instant — namely, VI., section 9 of IX., section 3 of XI !., section 8 of XIII., XV., XVI., XVII., XX., XXV., XXVI., XXVII., XXVIIL, XXIX., XXX., XXXI., XXXII., XXXIII., XXXIV., XXXV., XXXVI., XXXVIII., XXXIX., XL., XLI., XLII., XLIIL, XLIV., XLV., XLVL— are to take effect from the date hereof, as to all suits, as well as those now pending, as those subsequently instituted. {Ord. 1, 6£A June, 1853.) XLIX. — Guardians ad litem. A party desirous of appointing a guardian for him to defend a suit, may go before a judge or master with the proposed guardian, and the judge or master may appoint such guardian if he shall think fit to do so. But he must be satisfied by affidavit that such proposed guardian is a fit person and has no interest adverse to that of the per- son of whom he is to be the guardian in the matter in question ; and if the affidavit is not sufficient for this purpose, he may examine the proposed guardian, or the person making the affidavit viva voce, or require further evidence to be adduced until he is satisfied of the pro- priety of the appointment. {Ord. 2, 6th June, 1853.) As tu appointmeDt of guardian ad litem^ see Ord. 18, s. 6, and notes; also Ord. 63. , ,* L. — Solicitors. It is ordered that whenever hereafter any solicitor of this court shall be struck off the roll of solicitors, or be prohibited from practising as a solicitor, by order of this * It a? ■3J» 2 w^. ^^f M s '. 186 ORDERS LI. LII. c C-.W ■'•"* IT' court, for malpractice or misconduct as a solicitor, or other sufficient cause, the registrar of this court shall forthwith certify such dismissal or prohibition, and the grounds thereof expressed in general terms under the seal of this court, and shall transmit such certificate to each of the superior courts of Upper Canada. And that this court on receipt of any similar certificate from the court of Queen's Bench, or court of Common Pleas, of any attorney of either of the said courts respec- tively, having been struck ofT the roll of such court, or prohibited from practising therein, shall thereupon take proceedings forfStriking such person, being a solicitor of this court, from the roll of solicitors; or for prohibiting his practising therein according to the course and prac- tice, and in like manner and under like circumstances observed in similar cases in the superior courts in Eng- land. {Ord. m Feb., 1864.) LI. — Motions for Decree — Setting Down. It is ordered, that in future all motions for decrees, and motions by way of appeal from the master's report, are to be set down in a paper of motions and will be called ' on in their order, after other motions are heard. {Ord. SOth April, 1855.) Motions for decree must now be set down not less than ten days before the day for which notice is given, Ord. 68, s. 1. LII. — Examination of Witnesses and Parties. Witnesses and parties may be examined before any examiner of this court, in those counties in which there may be no deputy-master, until the appointment of a deputy-master in any such county. {Ord. 11 th Sept., 1856.) It is doubtful if this order is now in force. At all erents it now applies only to the evidence in support of interloeutoiy pjoceedings. The chief object in making circuits was that all the evidence might be taken before one of the judges, and since the passing of the orders of February, 1857, the court will not direct the examination of witnesses to be taken under ORDKR LIU. LIT. 187 thia order, although ooDiented to by the parties, Phelan v. Phelan 6 Qrant S84. No eridence to be used oq the hearing of a cauee, is to be taken before any examiner or officer of the court, unlesi by the order first had of the Court or a Judge thereof, Ord, 97, a. 1. LIII. — Guardians, after Decree. When infants or persons of unsound mind, not so found by inquisition, are made parties to suits after decree, or are served with notice of motion under Order XV. of the general orders of June, 1853, guardians ad litem are to be appointed for them in like manner as they are now ap- pointed at any time after bill filed ; and this order is to take effect from the date hereof as to all suits as well those now pending as those hereafter to be instituted. (Ord.8thNov, 1856.) For the mode of proceeding to obtain the appointment of a guardiaa a to the service of a bill of complaiot oq a ««»n J m 192 ORDER LYI. SEC8. 11, 12, 13, 14, 15. 3 I- unless the court shall have seen fit, upon a previous ap- plication, to postpone such examination ; or unless the judge before whom the evidence is to be taken, shall see fit to postpone such examination, or to allow time for the production of further evidence ; and when such examina- tion is postponed in the manner aforesaid, or when time is allowed for the production of further evidence, the or- der is to be upon such terms, as to the costs or otherwise, as the court, or the judge, may think it right to impose. 11. Where differences arise as to the conduct of the examination, the judge before whom the evidence is be- ing taken, is to prescribe the order in which the several parties are to adduce their witnesses, or to give such di- rections as to the general conduct of the examination, as the circumstances of the case may require ; and the evidence of any person who declines to produce his wit- nesses when called upon is to be altogether excluded^ unless the judge shall order otherwise. 12. Any witness may be recalled for further examina- tion, as in trials at nisi prius^ without any order of the court having been obtained for that purpose. 13. Articles are not to be filed in future for the purpose of discrediting a witness ; but witnesses may be called for that purpose, without the leave of the court ; and they are to be examined at the time and place fixed for the examination of the other witnesses in the cause, unless the judge before whom the evidence is being taken shall otherwise order. 14. Depositions are to be taken and expressed in the first person of the deponent. 15. Any person is to be at liberty to make use of the depositions of any witness adduced by any other party to the suit, subject, however, to such terms, if any, as to the costs of taking such evidence, as the court may think it right to impose. 16. The court, if it see fit, may require the production ORDER LVII. bECS. 6, 7. 193 irpose sailed and id for lause, in the )f the party as to think iction and oral examination before itself of any witness or party in any cause, matter or proceeding, and is to direct the costs of and attending the production and examina- tion of such witness or party to be paid by such of the parties to the suit, or in such manner as it may think fit, {15 «^ 16 Vic. c. 86,5. 39.) This section authorizes the examination of those witnesses only who have beei' exauiiueil iu the cause ; witness ought to be previously informed as to what he is to be examined upon, East-Anylian Railway v. Ooodwin, 6 W. R. 564. The proper period at which the discretion given to the Court by this return is to be exercised, is at the hearing of the cause, Raymond «. JBroMin, 5 Jur. N. S. 1046. LVII. — Setting down the Cause. — Hearing. 6. If the plaintiff neglects to set down the cause to be heard within one month after publication has passed, any defendant may cause the same to be set down, and may serve notice of hearing on the parties to the cause. Where the defendant set a cause down fur hearing before the time limited by this section had expired and the plaintiff moved to strike the 'Cause out of the list for irregularity, it was struck out with costs, although by the plaintiffs delay in giving notice of the irregularity, the defendant was unable again to set the cause down for the ensuing term, City of Toronto v. McGitl, Cham. R. 16. 7. Where a defendant makes default at the hearing of a cause, the court is to make such decree as it may think fit ; this decree is to be absolute in the first instance, without giving the defendant a day to shew cause, and such decree is to have the same force and effect as if the same had been a decree nisi in the first instance, and had been afterwards made absolute in default of cause shewn by the defendant. (Eng. Con. Ord. 23, r. 12.) Under this rule the plaintiff takes such a decree as on the evidence and pleadings he is entitled to, Evans v. Williams, 6 Beav. 118 ; Hakewell v, Webber, 6 Hare 541. Where the affidavit of service of the subpcena to hear judgment Is irregular, the cause must be set down again, Evans v. Evans, 2 Keen. 604 ; .A decree taken on production of an insufficient affidavit of service, is irregular, Pouell v. Martin, IJ. & W. 292 ; Rigg v. Wall, 3 M. «k 0. 606. mm I I* .1* ; I I- 194 ORDER LVII. 8EC8. 8, 9. 8. If the plaintiff causes the bill to be dismissed, on his own application, after it has been set down to b^ heard ; or if the cause is called on to be heard, and the plaintiff makes default, and by reason thereof the bill is dismissed ; in either case such dismissal is to be equiva- lent to a dismissal on the merits, unless the court order otherwise, and may be set up in bar to another suit for the same matter. (Eng. Con. Ord. 23, r. 13.) As the plaintiff has the entire controul of the suit, he may at any time before the hearirig, obtain an order dismissing the bill upon payment of the defendant's costs ; and it makes no difference whether the bill is filed on his own behalf only, or on behalf of himself and all others of the same class, Curtis v. Lloyd, 4 M. & 0. 194; Manion v. Moe, 14 Sim. 863. Where there are several plaintiffs they must all join in the application to dismiss. After the cause has been heard and is standing for judgment, the plain tiff cannot dismiss his bill except on a special application, Smith v. Port Hope Harbour Go. 6 U. 0. L. J. 189. After decree, a bill cannot be dismissed, except by consent, Cooper o. Lewis, 2 Phill. 178, and even then only upon a rehearing, Lashley v. Hogg, 11 Yes. 602 ; whether instituted by the plaintiff on his own behalf, Bluck V, Colnaghi, 9 Sim. 411 ; or on behalf of himself and others of the same class, Handford v. Storie, 2 S. «fe S. 196. The proper course after decree, is to apply for an order to stay all pro- ceedings, which order will be made by consent, or upon a fit case being proved. Egg v. Devey, 11 Beav. 221. Where the defendant submits to the plaintiff's demand, and the only question between the parties is the costs of the suit, it ought not to be proceeded in, but an application should be made, to the court, to avoid the expense of further proceedings, Sivell v. Abraham, 8 Beav. 598; if, how- ever, there be any question in dispute to which the defendant does not submit, the court will not interfere summarily, and stop the suit, Field V. Robinson, 7 Beav. 66; McNaughtan v. Hanker, 12 Jur. 956. The defendant is not entitled to a dismissal on plaintiff's default to appear, without producing a regular aJEiJavit pf service of t^e notice of hearing, Rigg v. Wall, 3 M. A 0. 505. 9. The practice of excepting to bills, answers or other proceedings for scandal or impertinence is abolished. But if upon the hearing of any cause or matter the court is of opinion that any pleading, petition or affidavit or any part of such pleading, petition, or affidavit is scan- ORDER liYII. 8XCS. 10, U, 12. t9s5 dalous, the court may order such pleading, petition or affidavit to be taken off the file, or may direct the scan- dalous matter to be expunged, and is to give such direc- tion as to costs as it may think right. 10. A motion to have any pleading, petition, or affida- vit taken off the file for scandal, or to have the scandalous matter expunged, may be made at any time before the hearing of the cause or matter. 11. If, upon the hearing of any cause or matter, the court is of opinion that any pleading, petition, or affidavit, is of unnecessary length, the court may either direct pay- ment of a sum in gross or in lieu of taxed costs therefor, or it may direct the taxing-officer to look into such plead- ing, petition, or affidavit, and to distinguish what part or parts thereof is or are of unnecessary length, and to as- certain the costs occasioned to any party by any un- necessary matter ; and the court is to make such order as it thinks just, for the payment, set off, or other allow- ance of such costs, by the party, his solicitor, or counsel. 12. Causes may be set down to be heard on further directions for any court day, but notice thereof must be served at least seven days before the day for which the cause has been set down. , . ,. When the decree made in a cause refers any matters to the master, re- eerving the final disposition of them until after he has made his report, it i> necessary in order to have a complete termination of the suit, that the cause should be set down to be heard " on further directions." This has to be repeated as often as there are any further directions reserved by the last decree. If costs are also reserved by the decree the cause should be set down for hearing " on further directions and as to the question of costs." Further directions are reserved only in those cases where a reference is made to the master to take accounts or make enquiries, or where an issue is directed. If the further directions are reserved until after the master has made his report, the cause cannot be set down until the master has made his report and it has been confirmed. Where the master makes a separate report in pursuance of a decree, or a report not in pursuance of a decree or decretal order, the cause cannot be brought before the court or further directions, but the party must apply by petition for consequential directions, Van Kamp v. Bell, 3 Madd. 430. If matters in issue at the first, be neither decided, put in a train of in- ;w I 196 ORDER LVIII. SEC. 1. c: '«»*;• TestigadoD, nor reserved, they must on further directions be treated either as abandoned, or as points on which the plaintiff was entitled to no order, Patiingham v. Sherborn, 9 Beav. 424. At the hearing on further directions, the liability of executors may be determined, Pattenden v. Hobson, 17 Jur. 406 ; but it is not proper ai that stage, to direct an enquiry as to wilful default, Coope v. Carter. 2 DeG. M. & Q. 292. A cause cannot be set down to be heard on further directions, until after the master's report has been confirmed, because, until then any of the par- ties may appeal against the report. The report becomes absolute, without order confirming the same at the expiration of fourteen days after the filing thereof, unless previously ap- pealed from, Ord. 79 ; and no order to set down the cause is necessary, Notice of the hearing must be served on all proper parties in the same manner as notice of the original bearing, at least seven days previous to . the day for which the cause is set down. Parties added in the master's ' ' office who have appeared there and attended the proceedings should be served ; and it is presumed they would be allowed their costs of attend- ing. The brief at tbe hearing on further directions should contain the decree and master's report, but the brief of the pleadings should also be in the hands of counsel. The court will not take notice of anything which does not appear from the decree and report ; but the court has allowed an affidavit ' as to the plaintiff's conduct, made after the master's report to be read, on ■ the question of costs. Fallows v. Lord Billon, 2 W. R. 507 ; but subse- . quently the court rejected'a similar affidavit as to the defendant's conduct, Bateman v. Margerison, 2 W. R. 607. The decree made on further directions is settled, passed and entered, in the same manner as other decrees. Ih.. ^ i' " o • <•«'<.. «: -r- - '^^ • ■• ** ,'«"«■ '■• ::pi ^;: i fU . ,*■ i • • *• ,*« .^ „ "^Z • , LVIII. — Proceedings in Suits for Foreclosure or -«:■. ■ ! 'V Sale. 1. In suits instituted by mortgagees or judgment credL tors for sale or foreclosure, when all encumbrancers have not been made parlies, or further enquiries are sought, the complainant is to bring into the master's office, to- gether with the decree, a certificate from the registrar of the county wherein the lands lie, setting forth all the re- gistered incumbrances which affect the property in the pleadings mentioned, and such other evidence as he may be advised ; and upon his ex parte application for that . purpose, the master is to direct all such persons as appear to him to have any lien, charge, or incumbrance upon the ORDER LVni. SECS. 2, 3. 19T estate in question, to be made parties to the cause. {Ord, m Feb., 1858.) As all subsequent incambrancers oan under this section be made parties in the master's office, they should not be made parties to the bill. When they are made parties before the decree, the court will not allow any cost* in respect of so making them parties. , Where it appears conducive to the ends of justice that parlies interested in the equity of redemption, should be allowed to be made parties in the mater's office, by reason of the parties so interested being numerous or otherwise, it shall be competent to the court, at the hearing or afterwards, to direct that parties so interested, may be made parties in the master's office, upon such terms as to the court shall seem fit ; such order to be made only where one or more parties interested in the equity of redemp* tion are already before the court, Ord. 70. The judgment creditors of the mortgagee are necessary parties, and may be added in the master's office, Sanderson v. Jnee, 7 Grant 383. Where a plaintiff in a suit for foreclosure or sale asks a reference to the master to enquire as to encumbrancers, he takes such a reference at the peril of costs, if there are in reality no incumbrancers, Hamilton v. Howard, 4 Grant 681. 2. When the bill is filed by a subsequent incumbran- cer seeking relief against a prior mortgagee, such mort- gagee must be made a party previous to the hearing of the cause. But when the plaintiff in any such case prays a sale or foreclosure, subject to the prior mortgage, such mortgagee is not to be made a party either originally or in the master's office. 3. Upon the office copy of the decree to be served upon persons made parties in the master's office, under the provisions of this order, there must be endorsed a no- tice to the effect set forth in schedule A. to these orders annexed. Parties added in the master's office must be served with office copies of the decree duly stamped ; unstamped copies are insufficient, Elliott v. Hel- livjell, Cham. R. 6 ; Feehan v. Hayes, Ibid. The copies of the decree muy be made office copies by (he deputy regis- trar in the county to which the reference is directed, Ord. 66, s. 1. ,. Under Con. Stat. U. C. c. 12, s. 70, the plaintiff may serve the attorney- at-law of a judgment creditor made a party under this order. If the attor- ney at-law is served or accepts service as attorney, an affidavit must be -««; •""H Mil I I :( ■• ," ■' C t' ,.-t , •< <:. ■ ■ ^ • "■•^ -, W*f»4> t -•'* :3i M :■■■•. 198 OBDEB LTD. SKC8. 4, 6, 6, 7. producfd proving that he is the attorney on the roll of the judgment, in respect of 'wbiob the judgment creditor la made a partj. The form of notice A. will be found in the appendix of forms. 4. When a reference has been directed as to incum- brances, or to settle priorities, in any case provided for by this order, the master, before he proceeds to hear and determine, is to require an appointment to th*? effect set forth in schedule B. to this order annexed, to be served upon all persons made parties before the hearing, whether the bill has been taken pro confesso against such persons or not. For the form of appointment B. see appendix of forms. 6. When any person who has been di'ly served with an office copy of the decree, or with an appointment under the provisions of this order, neglects to attend at the time appointed, the master is to treat such non-attendance as a disclaimer by the party so making default ; and tho claim of such party is to be thereby foreclosed, unless the court order otherwise, upon application duly made for that purpose. When a person made a party in the master's office appears and disclaims, be is not entitled to any costs, as by remaining inactive the same ond will be attained as by disclaimiDg, Hatt r. Park, 6 Grant 658. 6. The master's report in the cases specified in this or- der must state the names of all persons who have been made parties in his office, and of those who have been served with the appointment hereinbefore provided. The names of such as have made default, having been duly served, must then be stated ; and then the report must go on to settle the priorities, &c., of such as have attended, and these latter are to be certified as the only incumbrancers upon the estate. 7. Where a mortgagee has proceeded at law upon his security, he shall not be entitled to his costs in equity, unless tne court, under the circumstances, shall see fit to order otherwise. ORDERS LIX. LX. ZLI. LXII. 199 LIX. — Masters and Deputt-Rxoistrars. The masters and deputy-registrars appointed by this <50Urt, shall, in addition to the fees already payable to them, be entitled to receive upon the setting down of causes for the examination of witnesses, the sum of one pound ten shillings for each case to be set down. (Ord. ethFeb., 1858.) * - r - /; The fee payable to deputy-registrars on settiug down causes for exami* Diti^D and hearing has been increased to two pounds, Ord. 97, s. 8. LX. — Long Vacation. It is ordered that the time of the long vacation is not to be reckoned in the computation of the time appointed or allowed for the purpose of answering either an origi- nal or amended bill. {Ord. SOth Jtme, 1858.) The time of the long Tacation is not reckoned in the computation of th« time allowed for mending, or obtaining orders for leave to amend bills, set- ting down demurrers, or filing replications, or setting down causes under Order 18, Ord. 5, «. 4. LXI. — Fee on Setting Down Causes. That from and after the first day of July next, the fee payable to, and to be received by the registrar of this court, on the setting down of each cause, other than those ordered to be taken pro confesso, shall be the sum of ten shillings. {Ord, 1, ISth April, 1859.) LXII. — Solicitors to attend Hearing. The judges of this court, taking notice of the inconve- nience and expense occasioned to the suitors in the court, by reason of the non-attendance of the solicitors of the parties or some of them at the times when such causes are called on to be heard, or during the hearing thereof, by reason of which non-altendance such causes are struck out of the paper, and cannot be restored without an ex- pense which ought not to be sustained by the parties ; or the hearing thereof is unnecessarily postponed, not only to the inconvenience of the parties to such causes, but *.**.■ I I » 200 ORDKBS LXm. •t: also to the inconvenience of parties to other causes ; do think proper hereby to order, in conformity with what the rules and practice of the court already require, that the solicitors for the several parlies in all causes do attend in court when such causes are appointed to be heard, and during the hearing thereof. And that whenever, upon the hearing of any cause, it shall appear that the same cannot conveniently proceed by reason of the soli- citor for any party having neglected to attend personally or by some person in his behalf, or having omitted to de- liver any paper necessary for the use of the court, and which, according to its practice, ought to have been de- livered, such solicitor shall personally pay to all or any of the parties such costs as the court shall think fit to award. {Ord. 2, \Sth Aprils 1859.) The solicitor is personally liable under this order, Cook v, Broomhead, 16 Ves. 133 ; Courtney v. Stock, 2 Dr. «fe W. 251. The client not relieved by the consequences of the solicitor's neglect ia ignorance of this rule without the consent of the other party, Walmsley v. Froude, 1 R. Poundage upon sequestration, followed by sale. ' ' Where amount made under £100, at 5 per cent. '' £100, but under £1000, 5 per cent, for the first £100, t > 2J per cent, for the residue. £1000, and over, 1^ per cent, on whatever exceeds £1000, in addition to the poundage allowed up to £1000, in lieu of all fees and charges for services and disbursements, except mileage ingoing to seize, and disbursements for advertising, '••^' and except disbursements necessarily incurred in the ii care and removal of property, to be allowed by the mas- • ' '>' ter in his discretion. . , ■ i ' Fob Service not spboifibd —The like charges as are allow- ed at common law for analogous services. , j> Ord. 30th, April, 1859. The court will permit service of pleadings to be effected by parties to the suit, and will allow the same fees upon taxation, as if served by third parties, McClure v. Jonet, 6 Grant 883. In moving for an order upon a sheriff to return papers sent to him for eervloe, tho proper mode of proceeding is to give notice of motion ; but quare, whether a sheriff can be compelled to serve any papers other thaa prooesB issuing from the court. Porter v. Gardner, Cham. R. 16. / n ORDERS LXVI. LXVIl. LXVIII. 203 LXVI. — Office Copies of Decrees. — Returns by Deputy Registrars. 1. Ordered, that all office copies of decrees to be served on parties, added in the master's office, may be certified by the deputy-registrar v/here the reference is made to. 2. Ordered, that the deputy-registrars do transmit to the registrar of this court, at Toronto, on the first day of January, April, July, and October, in each year, a list of all bills filed with them respectively during the pre- ceding quarter of the year, Ord. 5th Oct., 1859. LXVII. — Pro Confesso — Setting Down. Where a bill has been ordered to be taken pro confessOy the causo may thereupon be set down to be heard ; but the day for which the same is so set down is to be not less than ten days from the setting down thereof, unless the court think fit to appoint a special day for the hearing thereof. (Ord. 29th June, ISGl.) This does not in any way repeal Ord. 14, b. 1, whicli provides that a cause which has been taken pro confesso, may be heard at any time after the expiration of three weeks from the date of the order. LXVIII. — Motion for Decree. - ' 1. Where a party has given notice of motion for decree, he is to set the cause down to be heard on such motion not less than ten days before the day for which such notice is given, unless he shall have obtained an order allowing a less time for such purpose. Before this order, a cause might have been set down on motion for de- cree, at any time before the court entered upon the paper, Clarke v. Hallf 1 Grant 339. t 2. Motions for decrees are to be allowed only in three classes of cases, namely : — First. Where there is no evi- dence. Second. Where the evidence consists only of documents, and such affidavits as are necessary to prove their execution or identity, without the necessity of any cross-examination. Third. Where infants are concerned, n ^^^^B I^H ^^B ■B' 1 B' ■ 1 K i ^HSA W^KfM iW ■P^ 1 1 1 1 it^ii i •21. «M.<■. ,.;:«« ""irt, ■M .*•»■" . » 1,* t "f* '•i4 •'» Wl »"l «•' If 9 t ¥ » • II ^^■i 204 ORDERS LIX. LXX. s i c:: J-/ and evidence is necessary only so far as they are concerned for the purpose of proving facts which are not disputed ; but this order is not to apply to cases in which, but for this order, the court would grant leave to serve short notice of motion for decree in order to prevent irreparable injury. (Ord. 29th June, 186\.) As to service of notice of motion for decree, and the power of the court on such a motion, see Ord. 16, and notes. , LXIX. — Delivery of Possession after Final Foreclosure. In any suit for foreclosure or for redemption, the mort- gagor, or other person entitled to the equity of redemp- tion, being in possession of the premises foreclosed, may be ordered to deliver up possession of the same upon or after final order of foreclosure, or for the dismissal of the bill, as the case may be. {Ord. 29th June, 1861.) This orlcr is merely an cxlensiim of Ord. 32. s. 1, which provided for delivery ol possies^ion being ordered against the mort;?agor only. As to time when oivler mav be obtained, t«ee Ord, 32, .s. 1' and notes. LXX. — Parties Interested in the Equity of Re- demption made Parties in the Master's Office. In any case in which it shall appear conducive to the ends of justice that parties interested in the equity of redemption should be allowed to be made parties in the Master's Office, by reason of the parties so interested being numerous or otherwise, it shall be competent to the court, at the hearing, or afterwards, to direct that parties so interested, may be made parties in the Master's office, upon such terms as to the court shall seem fit ; such order to be only made where one or more parlies interested in the equity of redemption are already before the court. {Ord. 29th June, 1861.) Ab to adding parties in the uiae^ter's ofQcc, see Ord. 42, ^. 15 ; Ord, 68» ORDERS JLXXI. LXXII. 205 LXXI. — Defendant Absconding, or being Concealed. In case it appears to the court by sufficient evidence, that any defendant against whom a bill has been filed has been within the jurisdiction of the court at some time, not more than two years before the filing of the bill, and that such defendant, after due diligence, cannot be found to be served with an office copy of the bill^ and that there is good reason to believe that he has absconded from the jurisdiction, or that he is concealed within the same, the court may make such order as is prescribed by section 7th of the 9th of the General Or- ders of June, 1853. {Ord. 29th June, 1861.) - This order is only an exteasioa of the former orders oa the subject, see Ord. 9, 83. 7 & 8. LXXII. — Appointments and Notices in the Master's Office. 1. Where the master shall direct that parties not in attendance before him shall be notified to attend before him at some future day, or for different purposes at different future days, it shall not be necessary to issue separate warrants, but the parties shall be notified by one appointment, to be signed by the Master, of the proceedings to be taken, and of the times by him appointed for taking the same. [Ord. 29th June, 1861.) 2. In cases where parties are notified by appointment from the master, of proceedings to be taken before him, no warrants shall be issued as to such parties in relation to the same proceedings. 3. Parlies making default upon such appointments, are to be subject to the same consequence as if warrants had been served upon them. Prior to the passing of this order it was necessary to issue a separate ■warrant for each appointment before the master. Warrants issued under this order require the parties served to attend for tlie several purposes underwritten on the several diiys undeiwritten, and care should be taken in underwriting ti)e warrant to set out the different days, and the busiuesa to be proceeded with upon each. •DM I. ^mm» 206 ORDERS LXIII. LXXIV. a: •■4 * > . • c- - tH* {;: ' *W. » . • ■ '* ' ■ *. - - ■ •* ■ t' •«.', ** i -ti'ii. «»' «: ;-:■:; "•"■• "^Si CJ *■■-.* «»c:; LXXIII. — Taxation of Costs. m* Where costs are awarded to be paid, it shall be com- petent to the master in ordinary to tax the same, without any express reference to him for that purpose. {Ord. 29th June, 1861.) LXXIV. — Payment of Mortgage Money. • 1. Where the master is directed to appoint mortgage money to be paid at some time and place, he is to appoint the same to be paid into some bank at its head office, or at some branch or agency office of such bank, to the joint credit of the party to whom the same is made payable, and of the Registrar of this court ; the party to whom the same is made payable to name the bank into which he desires the same to be paid, and the master to name the place for such payment. ( Ord 29tk June, 1861. 2. Where money is paid into some bank, in pm.^uance of such appointment aforesaid, it shall be competent to the party paying in the same, to pay the same either to the credit of the party to whom the same is made paya- ble, or to the joint credit of such party and the Registrar. If the same be paid to the sol:; credit of the party, such party shall be entitled to receive the same without the order of this court. 3. Where default is made in the payment of money appointed under this order to be paid into any bank^ the certificate of the cashier, where the same is made payable, or of other, the like bank officer, shall be sufficient evidence of such default. Where the affidavit of the party entitled to receive the same is by the present practice required, the like affidavit shall still be necessary. Even after the final order of foreclosure has been obtained the defendant may apply for an extension of the time for payment of the mortgage money. The order in not obtained as of course, and the application will be ORDERS LXXV. LXXVI. 207 refiiBed when the exouBe for default is not satisfactory and the security is not ample, Eyre v. Hanson, 2 Beav. 4*78 ; Nanny v. Edwardn, 4 Rusa. 124 ; an affidavit by the solicitor that the defendant was exerting himself to raise the money was held insufficient, Anon, 4 Orant 61. The enrolment of the final order is no objection to the application if made promptly, and the court has the means of giving the mortgagee immediate payment, Thornhill v. Manning, 1 Sim. N. S. 451. An enlargement of the time may be given oftener than once. On applying the defendant should shew a reasonable excuse for nonpaj- ment on the day appointed, a probability of redeeming at the expiry (tf the extended time, and that the property is aiiople security. At one period the terms on which an application was granted appear to have been to require payment of the interest and costs by an early day, and to extend for six months the period for payment of the principal money, Whatton v. Craddock, 1 Keen. 269; Brewin v. Austin, 2 Keen 212; Oeldard V. Hornby, 1 Hare 261; and this rule seems still followed where the security is not ample, Fisher on Mortgages, 610. The course more generally followed now is to extend the time upon pay« ment of the costs of the application, charging defendant with interest on the gross amount reported due, Holford v. Yate, 1 K. ^th June^ 1861.) ORDER LXXYIII. SEC. 1. 209 All the affidavits upon which any notice of motion ia founded must be filed at itie time of the service of such notice of motion, Ord. 40, «. 2. As CO filinj,- affidavits on motion for decree, see Ord. 16. As to giving notice of intention to read affi'lavits, and searching for affi- davits referred to in a notice of motion, see Ord. 39, s. 1, and notes. LXXVIII. — Proceeding where State of Account CHANGED AFTER DeCREE OR RePORT. ;:. 1. In cases where after a decree or decretal order for the sale or foreclosure of mortgage property the state of the account ascertained by decree or decretal order, or by the report of the Master, shall be changed by payment of money, by receipt of rents and profits, by occupation, rent, or otherwise, before final order for foreclosure or sale obtained, it shall be competent to the plaintiff or other party to whom the mortgage money is payable, to give notice to the party by whom the same is payable, that he gives him credit for a sum certain, to be named in such notice, and that he claims that there remains due to him in respect of such mortgage money a sum certain, to be also named in such notice ; and in case, upon the final order for foreclosure or sale being applied for, the judge shall think the sums named in such notice proper to be allowed and paid under the circumstances, the or- der for final foreclosure is to go without further notice, unless the judge shall direct notice to be given : or it shall be competent to the party to whom the mortgage money is payable, to apply to a Judge in Chambers for a reference to a Master, or for an appointment to fix such sums respectively, and in the latter case either upon no- tice, or ex parte^ as the Judge may think fit, and the or- der to be made thereupon is to be served, or service thereof dispensed with, as the Judge may direct. (Ord. HQth June, 1861.) This order applies only where the state of the account is changed before the arrival of the day appointed for payment of the mortgage money. Where after the day appointed for payment of the amount due, the plain* AiS goes into possessioa, or receivea rents, ho ia entitled. to a final order qf S> let: H5I;: :iy ill: !** '«» - ** » -'■•^^ WW v« £10 ORDEB liXXIX. SEC. 1. «•<•§« fc- foreclosure, without a new account being taken, Constable v, Sowick, 6 Jur»- N. S. 331 ; Grecntihields v. Blackwood, Cbam R. 60. 2. It shall be competent to the party to whom such no- tice may be given to apply to a Judge in Chambers for an appointment to ascertain and fix the amounts proper to be allowed and paid instead of the amounts mentioned in such notice ; or for a reference to a Master for the like purpose ; and in case the Judge shall think a reference to a Master proper, the same may be made ex parte un- less the Judge shall otherwise direct. LXXIX. — Appeals from Master's Report. 1. Section 17 of General Order 42, is altered and var- ied in the following particular : Reports become absolute, without order, confirming the same at the expiration of fourteen days after the filing thereof, unless previously appealed from. An appeal shall lie to the court upon motion, at any time from the signing of the report, to the expiration of fourteen days from the filing of the same in respect of the finding of the Master upon any matter presented in his office for his decision, without objections or exceptions being previous- ly taken. {Ord. 29/A June^ 1861.) If any of the parties are dissatisfied with the master's report, an appeal firom it may be brought at any time within fourteen days after it is filed; and the service of a notice of motiou by way of appeal within the fourteen days will prevent the report being confirmed, although the appeal may not be heard till after the expiring of the fourteen days, Grimshawe v. Parks, 6U. C.L J. 142. ' When the fourteen days have been allowed to pass without serving no- lioe of appeal, the court may, under special circumstances, give leave to- appeal ; but such leave can be obtained only upon motion, notice of which must be given, Cozens v. McDougal, Cham. R. 29 ; Larkin v, Armstrong, Cham. R. 31. Where the master made a clerical error in his report, apparent on the face of it, the court made an order correcting the report on the ex parte application of the plaintifi', White v. Courtney, Cham. R. 11 ; but where the master, in proceeding to take an account under a decree on further direc- tions, finds he has made a mistake in taking the accounts under the original ORDERS LXXX. LXXXI. m D the parte irhei'o (lircc- iglnal 4ecroo, he is not at liberty to correct such mistake by his subsequent rc» port. The master hiviug, witliout the order of the court, reviewed his first report, and corrected i)y his subsequent report an error found iu the first, it was held that he had exceeded his jurisdiction, and that the objec- tion being apparent on the face of tlie report, the objecting paity was not driven to appeal, Crooks v. Street, Chaui. R. 78. The master's report h prima facie evidence of what it contains, unless appealed from, and no motion founded en such report can be entertained 'While the appeal is unheard, Nichols v. McDonald, 6 Grant 594. i 2. It shall be competent for any party affected by the report to file the same, or a duplicate thereof, and the filing of such duplicate shall have the same effect for the purposes of this order as the filing of the report, by the party taking the same. • LXXX. — Affidavits, — Sources of Knowledge. Each statement in an affidavit, which is to be used as evidence at the hearing of the cause or matter, or of a motion for a decree or other motion, or on any proceed- ing before the court, (or before the judge in Chambers,) shall shew the means of knowledge of the person making &i;ich statement. {Ord. lOth July, 18QI.) LXXXI. — Report on Sale. 1. It is ordered that sections 8 and 9, of the 36th of the General Orders of this Court of the third of June> 1853, be and the same are hereby repealed ; and it is further ordered, that in future all sales are to be with the approbation of one of the Masters of this Court, who is to report the same to the Court, such report to be in the form hereunder set forth, or as near thereto as cir- cumstances will permit, that is to say : " In Chancery." Title of Cause. " Pursuant to the decree (or order) of this honourable Court, bearing date the day of— ^ and made in this cause, I have, under the General Orders of this Court, in the presence of {or after notice to) all parties concerned, settled an advertisement and particulars and conditions of sale for the sale of the i;^i^^i^^^ :iiiJt»slim- 212 ORDER LXXXI. SECS. 2, 3. / J --.,■" ^ .. .•,■•■•■• , »' •■ '■■-,»■■■■ •-,.,-•.>;■ *'"' : ■■ '■" ' • X, -^ ;,';■.' ^^» -t, .,■■••" lands mentioned or referted to in the said decree, {or ordeTy) and such advertisement having, according to my directions, been published in the (naming the news- paper or newspapers) once in each week for the four weeks immediately preceding the said sale, (or as the case may be,) and bills of the said sale having been also as directed by me published in diftbrent parts of the township, (town or city) of and the adjacent country and villages, {or as the case may 6e,) the said lands were offered for sale by public auction according to my appointment, on the day of by me, (or by Mr. of appointed by me for that purpose, auctioneer,) and such sale was conducted in a fair, open and proper manner, when . of was declared the highest \\ bidder for and became the purchaser of the same at the price or sum of £ (or when sold in different lots, that A. B. became the purchaser of lot No. 1, at the price or Bum of £ , C. D., of lot No. 2, at the price or sum of £ , as the case may be ; ) all which having been proved to my satisfaction by proper and sufficient evi- dence, I humbly certify to this honourable Court, {Ord. ^^ndFeh., 1862.) .. A master's report on a sale muet be filed, in tho same niai.ner as other reports, before it can be confirmed. As to applications to open biddings before and after the confirmation of the report on sale, see notes to Ord. 36, s. 10. * 2. Under the printed conditions of sale is to be printed a blank form of contract in these words, or to this effect : " I agree to purchase the property (or lot No. ) men- tioned ir the annexed particulars, for the sum of £- and upon the terms mentioned in the above conditions of sale," which is to be signed by the purchaser. Witness. 3. This order is to take effect on and after the eighth day of March next. ' • i ""-"i 'is ■ i.^ ORDERS LXXXII. LXXXIII. LXXXIV. LXXXV. 213 i! ' , ,. ' LXXXII. — Sittings of Court. 1. Sections 1, 2, 3, 4 and 5, of order number three of the General Orders of 23rd of December, 1857, are here- by abrogated and discharged, {Ord. 28th Aprils 1862.) 2. The Judges of the court will sit separately and by alternate weeks, as follows : — One judge will sit daily in each week for th despatch of all business other than re- hearings and Chamber business. . . , . 3. The business before such Judge will be taken as follows : — Monday, Motions ; Tuesday, Wednesday, Hearings pro confesso ; motions for decree ; further di- rections ; appeals from masters reports. Thursday, Fri- day, Saturday, Hearing of causes ; demurrers, (except- , LXXXIII. — Setting Down Causer. . The party who desires to have a cause set down to be heard, is to enter it with the registrar for that purpose, at least fourteen days before the day for which the same is set dowHy (Ord. 2Qth April, \SQ2.) \\ 76 of LXXXIV. — Lists to be Prepared by the Registrar. The Registrar is to prepare lists of all causes entered for hearing, making a separate list of all the causes to be heard before each judge. Each cause is to be set down in the order in which it has been entered with the Regis" trar. Causes are to be called on and heard accor('"i g to the Registrar's list, unless the court order otherwise. {Ord. 2Sth April, \S62.) : ■'■' ■:T. LXXXV. — Notice of Hearing. "• Notice of hearing must be served by the party setting down the cause, upon all proper parties, for a proper day falling within the week in which the Judge in whose list the same is set down is to sit, and such notice is to be iu ORDEH LXXXVI. SECS. 1, 2, § W > «« -..*■■• lil served not less than twelve days before the day for which such notice is given. [Ord. 28th April, 1863.) This order is virtually repealed, ns causes iire now heard at the same timft that the witnesses ave examined upon the close of such oxumiuation, Ord, 97, <. 1 ; and notice of examination must be served ut least fourteen days before the commencement of the examination term, Ord. 66, « 9. Notice of rc-hearing must bo served not less than seven days before th« re>heaiing term, Ord. 92. LXXXVI. — RE-HifcARiNG ot Causes. t. There arc to be four re-hearing terms in each year, c^bmmencing respectively as follows: (1.) The second Thursday in March. (2.) The first Thursday in June. (3.) The second Thursday in September. (4.) The first Thursday in December. (Ord. 2Sth April, 1862.) 2. All re-hearings of cases are to be in re-hearing term only. Every re-hcaring must be within six months after the decree ia passed and entered, or within such further time as the court or any judge thereof may allow, Ord. 96. As to re-hearings, see Ord. 9, a. 1*7 ; of causes in which the bill has been taken pro confesso, Ord. 14, s. 8. The cause must be set down for re-heariug not less than ten days' befoi'e the commencmcnt of the term, and notice of the re-hearing must be served not less than seven days, Ord. 92. The amount to be deposited with the registrar on any petition of re-hear* ing is £10, Ord. 48, s. 1 In the case of a re*hearing, all parties interested in supporting the d6> oree or order appealed from, are entitled to be heard, bat no party, except the appellant, can bo heard iu support of the appeal, Daniel's Chad, Pr. 1180. Any party not included as a co-petitioner in a petition of re-hearing; who is desirous of appearing, must present a separate petition, lie Stephen, 2'Phiil. 662. On a re-rehearing, all depositions taken before the original hearing, though not then made use of, may be read, DanieVs Chan. Pr. 1130; and the plaintiflF may withdraw from the evidence any portion of the answer which may have been read in the court below, Allfrey v. Allfrey, 1 M. d( 0:81 Exhibits which were not in evidence at the original hearing may be prcN dilqed upon a re-hearing; and an order ia prove such exhibits viva voce at the hearing of the appeal may be obtained without notice, DanicTs Chan, Pr. 1131. OBDERs l:s:xxvii. LTXxvm. 215 3. Applications in the nature of re-hearings to dis- ♦charge or vary Orders made in Court, are to be made in re-hearing terms only, except with the leave of the Judge pronouncing the Order sought to be discharged or varied. A re-hcaring under this section must be within four months from the passing and entering of the order, Ord. 9G. LXXXVII. — Appeals from Orders made in Chambers. 1. One judge will sit da'ly in each week for the des- patch of business in Chambers. {Ord ISth April, 1862.) As to the business to bo despatched in chambers, and the mode of pra* ccedure, see Ord. 34. Whatever applications can be made in chumbersi must be so made, Moffatt v. Ruddle, 4 Grant 44. 2. Matters adjourned from Chambers under section third of Order thirty-four of the General Orders of the 3rd of June, 1853, and applications in the nature of re-hear- ings to discharge or vary orders made in Chambers, are to be heard in full Court on the last Wednesday of every month, except during examinntion terms. 3. The foregoing Orders are to come into operation on the twelfth day of May next. But causes may be set down and notices may be given of proceedings to be taken under the said Orders, from the day of the date hereof. The orders referred to in this seotioo are those from the 82nd to the 87ti)i both inclusive, LXXXVIII. — Reading Depositions in other Causes. Any party shall be entitled in future upon notice with- out order to use depositions taken in another suit in cases where under the present practice he is entitled to use such depositions upon obtaining the common order for that purpose. {Ord. 2Sth April, 1862.) In order to read depositions taken in another suit, the parties must be the same as, or privy to the other suit, and the issue the same, Lawrence v, JUaule^ 28 L. J. Chan. 681 ; 7 W. R. 315 ; Humphrey t v. Pwtam, I U. A *<. Mir 216 ORDERS LXXXIX. XC. .r<»** c I : 0. 680 ; and see Hope v. Liddell, 21 Beav, 180 ; Manby v. Bewieke, 8 Jar» N. S. 685. The parties may have been ccnlefendants in the suit the depositions in which are to be read, Ask^w v. Poulterers' Co., 2 Yes. 89. The deposit tions of witnesses living may be used, City of London v. Perkins, 8 Bro* P. 0. 602. LXXXIX. — Examination op Parties. Any party defendant may be examined as a witness without order, on behalf either of the plaintiff or of a co- defendant. Any party plaintiff may be examined as a witness without order, by a co-plaintiif, or by a defend- ant, in case? where under the present practice such ex- amination may be had upon the common Order being obtained for that purpose. {Ord. 2Sth Aprily 1862.) As to the examination of parties, see Ord. 22. XC. — Re-Taxation of Costs. 1. It shall be competent for any party against whom costs have been taxed by a deputy master of this Court, to obtain as of course an order for a re-taxation of the same before the taxing officer, of this Court at Toronto. {Ord. 2Sth April, 1862.) 2. It shall be the duty of the party obtaining such order to deposit with the Deputy-registrar and Master, with whom the papers are filed, a sufficient sum to cover the expenses of transmitting the same to Toronto, and of the return thereof. 3. In case less than one-twentieth be taxed off upon a re-taxation, the costs of such re-taxation shall be added to the bill already taxed. Where more than one-twentieth i« taxed off, the master has no power to allow any costs to the party obtaining such re-taxation. 4. This Order is to apply to bills of costs already taxed, as well as to bills that may be hereafter taxed, but it is not to apply to cases where the costs have been paid, or final proceedings have been taken upon the taxation: Ill i 4 ORDER XCI. XCn. of costs already had ; process for the levying of such costs is not to be deemed a final proceeding within the meaning of this order. XCI. — Petitions under Order IX, S. 18. 1. A petition filed under the eighteenth section of Order IX., of the General Orders of this Court of the 3rd June, 1853, is to be set down to be heard in Court in t he pap er^of moticms for decFees. And when it is orclered tfiat any new party or any present party may answer the petition, and that the petitioner shall be at liberty to set down the petition again, it is to be set down in like manner, and upon the copy of such petition to serve is *' lie endorsed the following memorandum or notice, namely : " If you do not appear on the petition the court will make such order on the petitioner's own shewing as shall appear just," and upon the copy which is to be served of the order to answer such petition when the court shall deem it advisable to make such order is to be endorsed the following memorandum or notice, namely : ** If you do not answer the petition the court will make such order on the petitioner's own shewing as shall be just in your absence. And if this order is served per- sonally you will not receive any notice of the fuiure pro- ceedings on such petition.'' And when the party so served shall answer the petition the same is to be set down to be heard upon notice in the same paper. ( Ord. 9ih May^ 1862.) 2. Petitions set down to be heard under the foregoing Order are to be set down not less than ten days before the day for which they are to be set down, and notice thereof when notice is required is to be served upon all proper parties not less than seven days before such day. XCII. — ^Re-Hearing — Setting Down. Causes are to be set down for re-hearing not less than ten days before the commencement of the re-hearing jiijfdir ■••■1.-. 218 ORDERS XCIII. XGIXr. XCY. term, for which they are so set down, and notice thereof is to be served upon all proper parties not less than so^ien days before such re-hearing term. ( Ord. 9th Mayy 1862.) XClII. — iRRfiGXTLAR PROCEEDINGS. A notice of motion to set aside any proceeding for irregularity must specify clearly the irregularity com- plained of. {Ord. 9th May, 1862.) XCIV. — Cause Lists. The Registrar is to prepare a peremptory liiSt of causes set down for hearing for each day on which they are to be heard, and for that purpose the party setting down a cause for hearing is to notify the Registrar of the day for which he has given notice of the hearing of such cause not less than seven days before the day for which such notice is given. {Ord. 9th May, 1862.) I .r^--'* XCV.~Revivor. -■^'.■'"f. K Sections fifteen and sixteen of General Order num" JU" ;e^ 0./C4. dfmi ber nine of the General Orders of this Court of the 3rd ^^..^^f' _ / %b^ , June, 1853, are hereby abrogated and discharged. (Ord, ,.3e. c;./(. 6/* /«ne, 1862.) ,Zt: jr*2^ -^t v^/>r 2. Bills of revivor. — Bills of revivor and supplement^ itiji;:: original bills in the nature of bills of revivor, and f-i-^^ * ^/ V^^ ^ original bills in the nature of suj^lemental bills are i:j:5^ ^''V'^^^ abolished. . 3. Upon any suit becoming abated by death, marriage, OP otherwise, or defective by reason of some change or transmission of interest or inability, on the part of any plaintiff or defendant by devise, bequest, descent, or otherwise, it shall not be necessary to exhibit any biid of revivor or supplemental bill, or to proceed by any of the modes provided for by the sections of General Order by this Order rescinded in order to obtain an dfder to revive such suit or a decree or order to carry ORDER XCVI. m ar^ ' . . :,i.'v-- '■■■ : '■.i''V' ■^■■^ b ' ;:j»<'.w- pii'-iij-,; 1^ ..o-*;! '•»-«SL Vr 220 ORDER XCVII. SECS. 1, 2, 3. passing and entering of the same ; or within such further time as the Court or any judge thereof may allow upon special grounds therefor, shewn to the satisfaction of the Court or judge. (Ord. 1, lOth Jany^ 1863.) As to re-hearings, see Ord. 9, s. 17 ; Ord. 14. b. 8 ; Ord. 86 ; Ord. 92. XCVII. — Hearings. 1. Causes are to be heard at the same time that the witnesses are examined upon the close of such examina- tion. No evidence to be used on the hearing of a cause is to be taken before any examiner or officer of the Court, unless by the order first had of the Court or a judge thereof, upon special grounds adduced for that purpose. {Ord. 2, 10/^ Jany, 1863.) For the towns at which witnesses may be examined and causes heard»' Bee Ord. 56, a. 4. Causes may by consent of parties be brought to a hearing on affidavit «yldeuoe, Ord. 20, s. 4. 2. When the examination of witnesses before a judge is to be had in any town or place, other than that in which the pleadings in the causes are filed, it shall be the duty of the party setting down the cause for such exami- nation, to deliver to the Registrar or Deputy-registrar with whom the pleadings are filed, a sufficient time before the day fixed for such examination, a praecipe requiring him to transmit to the Registrar or Deputy- registrar, at the place where such examination of wit- nesses is to be had, the pleadings in the cause ; and at the same time to deposit with him a sufficient sum to cover the expense of transmitting and re-transmitting such pleadings, and thereupon it shall be the duty of such Registrar or Deputy-registrar forthwith to transmit the pleadings accordingly. {Ord. 3, lOth Jany, 1863.) As to the mode in which papers are to be transmitted, sec Ord. 43, s. 6> 3. The fee payable to the Deputy-registrars for setting down causes under the foregoing order is to be two pounds. ., , ; ., . ■A * . ;. ORDER XCYIII. SEC. I. 221 XCVIII. — Decrees for Redemption or Foreclosure OF Mortgages, or for Sale. 1. When the time for answering in either of the above classes of cases has elapsed, on production to the Regis- trar of the Court, of the affidavit of the service of the (i^6 HiUuA bill, and upon prsecj jge, the plaintift' is to be entitled to ^^^ ^-T such a decree as would, under the present \ actice, be / made by the Court, upon a hearing of a cause pro con- ^*^ 0.(^%^ fessOy under an order obtained for that purpose ; and on ^ ^ '^ ' * /8/jS every such bill is to be endorsed the following notice : — ** Your answer is to be filed at the office of the Registrar, at Osgoode Hall, in the city of Toronto, (or when the bill is filed in an outer county, at the office of the Deputy-registrar at .) You are to answer or demur within four weeks from the service hereof, (or when the defendant is served out of the jurisdiction, within the time limited by the order authorising the service.) If you fail to answer or demur within the time above limited, you aro to be subject to have a decree or order made against you forthwith thereafter ; and if this notice . is served upon you personally, you will not be entitled to any further notice of the future proceedings in the cause. Note. — This bill is filed by Messrs. A. B. and C. D., of the city of Toronto, in the county of York, solicitors for the above named plaintiff, (and when the party who files the bill is agent, add agents of Messrs. E. F. and G. H., of , solicitors for the above plaintiff.) And upon bills for foreclosure or sale is to be added to such notice the following; 'And take notice that the plaintiff claims that there is now due by you for principal money and interest the sum of , and that you are liable to be charged with this sum, with subse- quent interest and costs, in and by the decree to be drawn up, and that in default of payment thereof within six calendar months from the time of drawing up the decree, your interest in the property may be foreclosed t t:' ■:■ ;-,!!'■;/' M <■ It-. *•■*■ £es ORDERS XCIX. C. GI. [or sold] unless before the time allowed you as by this notice for answering you file in the office above named a memorandum in writing signed by yourself or your solicitor, to the following effect : *7 dispute the amount claimed by the plaintiff in the cause,^ in which case you will be notified of the time fixed for settling the amount due by you at least four days before the time to be so fixed." {Ord. 4, lOth Jany, 1863.) 2. This Order is not to affect any suit now pending. XCIX. — Addrbss of Bills and Petitions. After the first day of February next, all bills of com- plaint and petitions are to be addressed, " To the Hon- ourable the Judges of the Court of Chancery." (Or(i. 6, lOthJan., 1863.) ,\\ Before tbia order, bills of complaint and petitions 'were addressed to the Obancellor uuly, Ord. 9, s. 1. C. — Authentication of Writs. The signature of a Judge shall not be necess^^i;- to the authentication of any writ. (Ord. 6, 10/^ Jan., 1863.) CI. — Service out of Jurisdiction. The time within which any defendant served out of the jurisdiction of this Court with an office copy of a bill of complaint shall be required to answer the same, or to demur thereto, to be as foliows: {Ord. 7, lOth Jan.y 1863.) 1. If the defendant be served in the United States of America, in any city, town, or village within ten miles from Lake Huron, the River St. Clair, Lake St. Clair, the River Detroit, Lake Erie, the River Niagara, Lake Ontario, or the River St. Lawrence, or in any part of Lower Canada not below Quebec, he is to answer or de- mur within six weeks after snoh service. 2. If served within any Siatt of the United States not within the limits above described other than Florida, ORDER CI. 8E0S. 3, 4, 5, 6, 7, 8, 9. 2)^3 Texas, or California, he is to answer or demur within eight weeks after such service. 3. If served within any part of Lower Canada below Quebec, or in Nova Scotia, New Brunswick, or Prince Edward Island, he is to answer or demur within eight weeks after such service. 4. If served within any part of the United Kingdom, or of the Island of Newfoundland, he is to answer or demur within ten weeks from such service. 5. If served elsewhere than within the limits above designated, he is to answerer demur within six calendar months after such service. 6. The time within which any party served with any petition, notice, or other proceeding other than a bill of complaint, is to answer or appear to the same, is to be the same time as prescribed for answering or demurring to a bill of complaint, according to the locality of service. 7. Any party may apply to the court to prescribe a shorter time than is hereinbefore provided for any other party to answer or demur to a bill of complaint, or to an- swer or appear to any petition, notice, or other proceed- ing. 8. Any party may apply for leave to serve any other party out of the jurisdiction under the General Orders of this Court of June, 1853. For the mode of obtaining an order for service out of the jurisdiction and the evidence in support of the application for such order, see Ord. 9, «, 6, and notes. 9. Affidavits of service under this Order and of the identity of the party served, may be sworn as follows : If such service be effected in any place not within the dominions of the Crown before the mayor or other chief magistrate of any city, town or borough, in or near which such service may be effected, or before any British consul or vice-consul, or the judge of any court of superior juris- 224 OK DEB CI. 'ft V > J lis li diction. And if such service be effected in any place within the dominions of the Crown, not within the juris- diction of this Court, such affidavit may be sworn before any the like officer, or any notary public, and in Lower Canada, before any commissioner for taking affidavits appointed under any statute of this province. And such affidavit shall be deemed sufficient proof of such service and identity without proof of the official character, or of the handwriting of the person administering the oath upon such affidavit. As to the evidence of identity neceisarj, see Ord, 13, <. 2, and notes. ' 1 ■OnSOOLIMl. 986^ SCHEDULES TO ORDEES OF 1853. BCHEDULE A. PORM OP BILLS. 1. By a legal or equitable mortgagee, or person entitled to a lien as a security for a debt, seeking foreclosure or sale, or otherwise to enforce iiis security. IN OHAMOSaT. ■^ ^* ^ {envmerate all the partiet plaintifft) Plaintiffs. AB. ^ and > CD. > and ^' ^' ) (<*'' parties defendants). Jfi. IT. ^ and [ G.H. ) Defendants. TOEOMTO, '\ To TBX HOKOKABU, &0. &^>nXZw [ Humbly oompllnta,.*™.*.. Hon of the witnesses). } A. B. of dec, that under and by virtue of an indenture (or other document) dated, &e. and made, &o., (and a transfer thereof, made by indenture, dated, dke. and made, dke.) the said A. B. is a mortgagee {or, an equitable mortgagee) of {or, is entitled to hold a lien upon) certain freehold property {or leasehold, or other property, as the case may be) therein comprised, being, {insert a general description of the property) for securing the sum of £ and interest ; that the time for pay- ment thereof has elapsed ; that £ has been paid on account of principal, and £ on account of interest {or, that no sum has been paid on account of either principal or interest) ; that your orators have not been in the occupation of the premises, or any part thereof {or, that your orators have been in the occupation of the premises, or of tome part thereof, from the day of • in the year to the dci' of in the year ) ; that there is now justly due upon the said security, for principal, £ and for interest £ . That E. P. and G. H., the defendants hereto, are entitled to the equity df redemption of the said mortgaged premises {or, the premises subject to such lien). Your orators therefore pray t&at they may be paid the said sum of £ ■ ' and interest, and the costs of this suit ; and in default thereof that the equity of redemption of the said mortgaged premises may be foreclosed, {or, that the said mort- gaged premises may be told, or that the premises subject to such lien may be Vlr 1226 SCHEDULES. fl:'. '■'■ '■■'^. »»-.-^.' til «o/d^ at Mtf case may be, and the produce thereof applied in or toward* the payment of the said debt and costs, and that the said E. F. and O. H. may be ordered to pay the balance of the said mortgage debt and cost*, after die- ducting the amount realized by such tale,) and for that purpose all proper dir«ctioDS may be given and accounts taken {and for further relief). • 2. By a judgment creditor, who has registered bin judgment, seeking a sale, or otherwise to enforce bis charge or lieu. IN OHANOERT. A.B. Plaintiff. and 0. D Detendank City of Toronto, tor the county tovm se- lected for the examina tion of the witnesses.) To THE HONOBABLB, (&C. ' Humbly complaining, <&o. your orator, Ao. &o. that in term, in the year your orator, or O, H., late of • deceased, of lohom your orator is the executor, or administrator, or assignee, under an assignment, dated, dc. and made, t7LK§. m orator, C. D., the defendant hereinafter named, the said 0, D. oontraeted to buy of yjur orator {_or to sell to him] certain freehold property [or Itatehold, or other pro- perty as the ease may be"], therein deacribed or referred to, for the sum of £ — — ; and that he baa made or caused to be made to the said 0. D. •n application specifically to perform the said agreement on hia part, but that he has not done so. Your orator therefore prays that the aaid agree- ment may be apecifically performed, and for that purpose all proper di* rectioDB may be given, he the said A. B. hereby offering to perform the laid agreement specifically on his part. 7. Bill for the specific performance of a parol agreement partly per- formed. IN OHANOKRT. A. B. Plaintiff. and f 0. D Defendant. OlTY OF TOEONTO, [or Ihe county tovm se- lected for the examina- turn of the leitnesses.'] To THE HONOEABLK, &C. Humbly coiDplaining, kc yoor orator, Ac. that on the day of — — — — * your orator being seised in fee simple possession [or C. D., the defendant hereinafter mentioned^ being or pri- tending to be seized in fee simple in possession, or in fee tail, or fof yean, or in remainder expectant upon the determ,ination of a certain estate for tht Ufe, ^e. as the ease may be"] of lot number " ■ ■ , your orator and the said 0. D. entered into a yerbal agreement for the sale and purchase of the said premises, at or for the price or sum of £ • — payable by 4qual annual instalments, with interest, upon the payment whereof a pro- per conveyance was to be executed of the aaid premises, free from in- onmbrances: [here state acts of part performance^ as] that your orator, 6t ihe Mid 0. D. was accordingly admitted, and entered into possession of the Mid lot, and has continued in possession thereof over since, and is still in possession thereof, and has made divers and considerable improTemeiite thereon, and has paid the sum of £ — — — *— part of the said purchase money ; and your orator submits that under the eircumstancea aforesaid the said agreement has been partly performed, so as to entitle your orator to a specific execution thereof ; for which purpose your orator has made fre- quent applications to the said 0. D., but without effect. Your orator therefore prays that the said contract may be specifically performed by the said 0. D., your orator being ready and willing and hereby offering to per rm the same in all respects on his part, and that your orator may bave suoh further and other relief, <&c. i H tso SCHEDULES. I'*ifi"l : { ■■* 3 ieetedfor the examina- tion of the wittuases.'] 8. Bill to Btay waate. .t IN 0HAN0BB7. , A. B Plaintiffi and C. D. DefendaDt OiTT OF TOEONTO, •■ "J To THE HONOBABLE, ferred to; and that 0. D., the defendant hereinafter named, is a trustee for him of such property ; and that being desirous to prosecute an action at law against in respect of such pro- perty, he has made, or caused to be made, an application to the said defendant to allow him to bring ouch action in bis name, and has offered to indemnify him against the costs of snch action, but that the said defend- ant has refused or neglected to allow his name to be usod for that pur- pose. You orator therefore prays that the said A. B. may be allowed to prosecute the said action in the name "f the said defendimt, he hereby offering to indemnify him against the cost of such action V 'P t:-ii I : if *"*'■- 2d2 SOHEDULKS. 11. Bill by a person entitled to have a nev trustee appointed in a where there is no power in the instrument creating the trust to appoint new trustees, or where the power cannot be exercised, and seeking to appeint a new trustee. IN CHANCBRT. A. B Plaintiff. and 0. D. Defendant City of Tobonto, {or the counttf town se eetedfor the examifM- tion of the toitneasea.'] ties, or will of- To THK HONOBABLB, <&0, Humbly complaining, ; blication the following notice is to be added;— , 0. D. : take notice that if you do not answer or demv ' to the bill pur- ■uant to the above order, the plaintiff may obtain an order to take the bill as confessed against you, oud the court may grant such relief as he may b* entitled to on his own shewing, and you will not receive any further DOtio« of the future proceedings in the cause. SCHEDULE E. FORM OF AN ANSWER. IN OBANOERT, A. B Plaintiff. and C. D. and E. F Defendants. The answer of C. D., one of the above named defendants, to the WU of complaint of A. B., the above named plaintiff. 1- ' S34 SCHEDULES. ""Jl.! ■ 'iii " In aDBWcr to the said bill I, 0. D., say as follows : " " I believe that the defendant E. F. does claim to have a charge upon the farm and premises comprised ia the indenture of mortgage of the ■■ ' ' — ' day of — — , in the plaintiflf 'a bill meuiioned. "Such charge was created by an indenture dated &c., made between my- self of the one part, &c. ** To the best of my knowledge, remembrance and lielief , there is not any other mortgage, charge, or incumbrance affecting the aforesaid premises. Such statements as are considered necessary or material are to be intro- duced with as much brevity as may consist with clearness ; and where a defendant seeks relief under section 4 of order XII. the answer is to ask the special relief to which be thinks himself entitled. ENDOBSUUKKT. This answer is filed by Messrs A. B. and 0. D., of the city of Toronto, in the county of York, solicitors for the above named defendants {and, where the party who filed the answer is agent, add, agents of Messrs, SI, F, and G. H , of , solicitors for the above named defendants.) Where the party defends in person the answer must be endorsed, in con- formity with tb'? 8d section of order XLIII. FORM OF JURAT TO ANSWER. The defendant 0. D. on the day of , appeared before me at my chambers in , and signed the foregoing answer in my presence, and thereupon was sworn before me that he had read the said answer and knew the contents thereof, and that the same was true of his own knowledge, except as to matters which are therein stated to be on his information and belief, and as to tho.'f^ matters he believed it to be true. IN THE CASE OF AN ILLITFBATE PERSON. The defendant 0. D., not being able to read or write, E. F., solicitor (or elerk to the solicitor) for the said defendant, was sworn before me at my chambers in , on the day of , that he had truly and faithfully read the contents of this answer to the said C. D., and that be appeared perfectly to understand the same ; and the said G. D. was there* upon sworn that he beard the said answer subscribed by him witb his mark read over to him by the oaid E. F., and that he knew the contents thereof, and that the same was true of his own knowledge, except as to matters which are therein stated to be on his information, and as to thoa« matters he believes it to be true. SCHEDULE G. ^ NOTICE IN CASE OF AN ABSENT DEFENDANT. IN CHANOE.ET. . -, A.B Plaintiff. and CD Defendant. To the Defendant 0. D., Take notice, that a motion will be made to the court, on the day of—— , (the time fixed by the order authorising publioation,) SCHEDULES. 235 that the bill in this cause may be taken as confessed against you ; and suoh order having been made, the court may grant to the plaintiflf such relief as he may be entitled to on his own shewing ; and you will not receive any further notice of the future proceedings in the cause. SCHEDULE H. NOTICE OF MOTION FOR THE ADMINISTRATION OF THE ESTATE OF A DECEASED PERSON. IN OELANCERT. In the matter of the estate of John Thomas, late of the township of , in the county of , deceased. Joseph Wilson against William Cochran. To William Cochran, executor of John Thomas, deceased. Take notice, that Joseph Wilson, of the city of Toronto, in the county of York, Esquire, {or other proper description of the party,) who claims to b« A creditor upon the estate of the above named John Thomas, will apply to one of the judges of the Court of Chanceiy, at Osfjoode Hall, in the city of Toronto, on the day of , at the hour of noon, for an order for the administration of the estate real and personal of the said John Thomas, by the Court of Chancery. Note : If you, the above named William Cochran, do not attend, either in person or by your solicitor, at the time and place above mentioned, such order will be made in your absence as the judge may think just and ex- pedient. A. D., Cf iJie city qf Toronto, solicitor for the above namedJosephWiltM, SCHEDULE L FORM OF REPLICATION. IN OHANOKRT. A.B Plaintiff. and 0. D„ E. F., and O. H Defendants. The plaintiff in this cause joins issue with the defendants E. D., {all th0 defendants who have answered,) and will hear the cause upon bill and an- swer against the defendant E. F., (all defendants againtt whom the cause is to be heard upon bill and answer,) and on the order to take the bill pro eon' fuso against the defendant Or. H., (as the care may be.) Jf ' W^^ '' 236 SCBKDUI/KS. I BCHEDULE K. FORM OF AFFIDAVIT AS TO PRODUCTION OP DOOUMBNTS UNDER ORDER XX. Between && IN OHANOEBT. of- make oath cuid say at follows : (1). I aaj I have ui my poesessioD or power the doouments relating^ to the matters in question in this suit, set forth in the first and seoond parts of the first schedule hereto annexed. (2). I further say, that I object to produce the said documents set forth in the second part of the said first schedule hereto. (8). I further say, (^State upon what ground* the objeetwn i» made, and verify ih,>faet» to far a» may be.) (4), I further say, that I have had, hut hare not now, in my possession or power the documents relating to the matters in question in this suit^ set forth in the second schedule hereto annexed. (6). I further say, that the last mentioned documeuts were last in my posRession or power on (state when.) (i.) I further say, (State what has become of the last mentioned documents, and in whoit possession they now are). (7). I further say, according to the best of my knowledge, remembranod» information and belief, that I have not now, and never have had, III my own possession, custody or power, or in the possession, custody or power of my solicitors or agents, or solicitor or agent, or in the possei^ sion, custody or power of any other person on my behalf, any dMd'f account, book of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of, or extract from, any such document, or any other document whatsoever, relating to the matters ia question in tbif suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the first and seoond schedules hereto. NoTS 1. — (If the party denies haviny any, he is tr make an affidavit in form of the seventh paragraph, omitting the exception.) Note 2. — (This form of affidavit, though not obligatory, will be satii- factory.) SCHEDULE L. ,, \ \ FORM OF NOTICE OP HEARING. ■_,,t- 'itf. *eti IN OHANORRY. A. B Flaintitt and 0. D Defendant " To THE ABOVE DEFENDANT, C. D. Take notice that this cause has been set down to be heard on the \\ SOHEDULBS. tS7 day of and unlefls you attend at the tim*^ and place appointed, a decree may be pronounced in your abieaeo. 0. H., Solicitor for the plaintiffi (or at th$ ecue may &«.> SCHEDULE M. FORM OF APPOINTMENT. IN OHANOEBY. A. B Plaintiff. and 0. D. Defendant I hereby appoint the day of — — to proceed {her* atate the nature of the btuinest for tohich the appointment i$ made), when all parties are to attend at chambers in Osgeode Hall, in the city of Toronto, at the hour of noon, {to be signed by judge.) NoTX. — If you do not attend either in person or by your solicitor, at the time and place above mentioned, such order will be made and pro> ceedings taken in your absence, as the judge may think just and efpedieot. Q. H., Solicitor for SCHEDULE iV. KOTIOE TO BE ENDORSED ON AN OFFICE COPT OF A DEORER UNDER RULE XXXIV. SECTION «. To Mr. , the person upon whom service hat been tUreeted. {set out the order.) It you wish to apply to discharge the foregoing order, or to add to or yary the decree, you must do so within fourteen days from the service hereof. ( When the order fxes a time for the further proceedings, eidd) And if you fail to attend at the time and place appointed, either in person or by your solicitor, such order will be made and proceedings taken n your absence, as the judge may think just and expedient ; and you will be bound by the decree aud the further proceedings in the cause in the same manner as if you had been originally made a party to the suitt mthout any further notice. SCHEDULE O. CONDITIONS OF SALE. Ist. No person shall advance less than £2 at any bidding under £100, nor less than X6 at any bidding over £100, and no person shall retract hit bidding. 2nd. The highest bidder shall be the purchaser; and if any dispute arise as to the last or highest bidder, the property shall be put up at & former bidding. 8rd. The parties to the suit, with the exception of the vendor, are to be at liberty to bid. 4tb. The purchaser shall, at the time of sale, pay down a deposit in the •.^■■u- '^f^"^' 238 SCHEDULES. proportion of £10 for every £100 of his purchase mooey to the vendor ur hia solicitors, and shall pay the remainder of the purchase money on the • day of — next ; and upon such payment the purchaser shall be entitled to the conveyance, and to be let into possession — ; the purchaser, at the time of such sale, to sign an agree- ment fcr the completion of the purchnpe. '-6tb. The pui chaser shall hav<^ the conveyance prepared at his own ez* pense, and tender the same foi- execution. / ' *Mw^» ri il if the judgment be affirmed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, and also, in case the judgment or decree is for the sale of property and the payment of a deficiency arising upon the sale, that the appellant will pay the deficiency j 12 V. c. 63, s. 40, Nos. 4 & 5. 4. If the judgment, order or decree appealed from directs the payment of money, the execution of the judg- ment or decree shall not be stayed until the appellant has given security, to the satisfaction of the court appealed from, that if the judgment, order or decree, or any part thereof, be affirmed, the appellant will pay the amount thereby directed to be paid, or the part thereof as to which the judgment may be affirmed if it be [^ affirmed only as to part, and all damages awarded against the appellant on the appeal. 12 V c. 63, s. 40> No. 1. XVII. When the security has been perfected and allowed, any Judge of the court appealed from may issue his fiat to the sheriff, to whom any execution on the judgment or decree has issued, to stay the execution, and the execution shall be thereby stayed whether a levy has been made under it or not. 18 V. c. 123, s. 1. XVIII. If at the time of the receipt by the sherift* of the fiat, or of a copy thereof, the money has been made or received by him but not paid over to the party who issued the execution, the party appealing may demand back from the sheriff the amount made or received under the execution, or so much thereof as is in his hands not paid over, and in default of payment by the sheriff upon such demand, the appellant may recover the same from him in an action for money had and received. 18 V. c. 123, s. 2. XIX. The death of the appellant after the security has mm CON. STAT. U. C. SBC. XIII. 24S ■•.;.m and 1. been perfected and allowed shall not cause the appeal to abate. 20 V. c. 5, s. 10. XX. The death of the respondent shall not cause tho" appeal to abate. 20 V. c. 5, s. 11. XXI. The marriage of a woman appellant or respond- ent, shall not abate the appeal, but the proceedings in error and appeal shall go on as if no such marriage had taken place, and the decision of the court shall be certi- fied as in other cases. 20 V. c. 5, s. 12. APPEALS FROM THE COURT OF CHANCERY. LII. A party desirous of appealing from any Decree or Order in Chancery, shall file a petition of appeal with the Clerk of t'le Court of Error and Appeal, and shall serve a copy thereof, together with a notice of the hear- ing of the appeal, on the respondent, his solicitor or agent, at least two months before the time named in such notice for the hearing of the appeal. 20 V. c. 6, s, 34. LIII. Such petition shall not be answered, but pro- ceedings shall go on as if the petition had been answered and as if the time named in the notice had been ap- pointed by the court for hearing the appeal. y has LIV. The petition shall be in the following form* " IN THE COURT OF ERROR AND APPEA " Between A. B., Appellant and CD., Respondent. " To the Honourable tlie Judges of the said Court. " The petition of the said A. B. sheweth : " That a Decree (or Order) was on pronounced "by Her Majesty's Court of Chancery for Upper Canada, " in a certain cause depending in the said Court, wherein "your petitioner was plaintiff (or defendant) and the "above named C. D. was defendant (or plaintiff), which " said Decree (or Order) has been duly entered and en- " rolled. 1J44 aoKm STAT. u. c. iiEC. xni. '! H ,"'*'**' if- •' m ** That yoxit petitioner herel^ appeals from the said " Decree (or Order), and prays that the same may be ^te- " versed or varied, or that such other Decree {or Order) " in the premises may be made as to your honorable " Court seems meet. '** And youir peiitionei* will ever pray, &c." [Certificate of Counsel to be added.) 20 V. c. 5, Sch. A, 3. LV. In case of an appeal from the Court of Chancery, the appellant shall bring the same to a hearing if the ap- peal is from a Decree or Decretal Order, within one year from the pronouncing thereof; and i^ the appeal is from an Interlocutory Order, not being a Decretal ■Order, then within six months from the pronouncing of the same, or within such further time in either 'Case as may be allowed for the purpose by the Court of ■Error and Appeal, or by the Court of Chancery or a Judge thereof, upon special grouncis shewn to the satisfaction of the Court or Judge granting the same. 20 V. c. 6, s. 35. LVI. As to a Decree or Order which, under any Gene- ral Orders of the Court of Chancery, does not become ab- solute upon the same being pronounced, the time limited for appealing therefrom shall be computed from the time when the same does become absolute. 20 V. c. 5, s. 35. APFEALB TO HER MAJESTY, IN HISR PRIVY COUNCIL. LVII. The judgment of the Court of Error and Ap- ipeal shall be final where the matter in controversy does not exceed the sum or value of foar thousand dollars. 12 V. c. 63, s. 46. LVIII. In a case exceeding that amount, as well as Jti a case where the matter in question relates to the taking of any annual or other rent, customary or other duty, or fee, or any like demand of a general and public nature QQtff. STAT. U,. C. CAT. XllU U^ 33. Ap- does lars. 1 a/fec'ting future rights, of what value or amount soever the same may be, an Appeal shall lie to Her Majesty in Her Privy Council. 12 V. c. 63, s. 46. LIX. But no such Appeal shall be allowed until the appellant has given security in Two thousand dollars, to the satisfaction of the Court appealed from, that he will effectually prosecute the Appeal, and pay such costs and damages as may be awarded in case the Judgment or Decree appealed from bs affirmed. 12 V. c. 63, s. 46. LX. Upon the perfecting of such security, execution shall be stayed in the original cause. 12 V. c. 63, s.. 46, and " ante ss. 16, 17 <^ 35. LXI. But the provisions of the sixteenth section of this Act shall apply to such Appeal, and the completion of the security hereby required shall not have the effect of staying execution in the cause, in the different cases to which the said section relates, unless the provisions in said section be complied with. 12 V. c. 63, s. 46. ,^^ IjXII. Every Judge of the Court of Error and Appeal shall: have authority to approve of and allow the security to be given by a party who intends lo appeal to He? Majesty in Her Privy Council, whether the application for si'.ch allowance be made during the sitting of the said Court, or at any other time. 20 V. c. 5, s. 36. LXin. Costs awarded by Her Majesty, in Her Privy Cbuncil, upon an appeal, shall be recoverable by the same process as costs awarded by the Court of Error and Appeal. 20 V. c. 5, s. 37. I asiti king or 246 ERROR AND APPEAL ORDERS. ORDERS "i: i ^ i »; iyi '! ^1 OF THR I-, V tv! COURT OF ERROR AND APPEAL. PASSED 3ED JULY, 1850. ' Whereas, by an act passed in the twelfth year of Her Majesty's reign, intituled, " An act to make further pro- vision for the Administration of Justice, by the estab- ' lishment of an additional Superior Court of common law, and also a Court of Error and Appeal in Upper Canada, and for other purposes," it was enacted, that a Court of Judicature should be established in that part of this Province called Upper Canada, to be styled " The Court of Error and Appeal," and to be composed of the judges of the Court of Queen's Bench, the Court of Common Pleas, and the Court of Chancery ; and that it should be lawful for the said judges of the Court of Appeal, at any time within two years, to make all such general rules and orders as to them might seem expedient for the pur- pose of adapting the said Court of Appeal to the circum- stances of this province, as well in regard to the writs of error or other process by which appeals should be com- menced, and the form and mode of suing out such pro- cess as in respect of the practice and proceedings of the said court, and also to regulate the allowance and amount of costs, and from time to time to make other rules and orders, amending, altering, or rescinding the same : pro- vided always, that no such rules or orders should have the effect of altering the principles or rules of decision of the said court or any of them, or of abridging or affecting iC ERROR AND APPEAL ORDERS. 241^ the right of any party to such remedy as before the pass- ing of that act might have been obtained in the court of appeal thereby aoolished ; but might in all respects extend the manner of obtaining such remedy by regulating the practice of the said court in whatever way might to them seem expedient for better attaining the ends of justice ; and that all such rules, orders or regulations should be laid before both houses of the Provincial Parliament, if then in session, immediately upon the making of the same, or if the Parliament should not be then in session, then within five days after the meeting thereof; and that no such rule, order or regulation should have effect until within six weeks after the same should have been so laid before both houses of the legislature, and that any such order so made should, from and after such time aforesaid, be binding and ooligatory on the liaid court and all other courts in the said province of Upper Can- ada to which the same should be made expressly to extend. . III. That, unless otherwise especially ordered, such security shall be personal and by bond, and may be in the form prescribed in rule number five, and shall be filed in the principal office of the court appealed from. IV. That the security for costs required by the statute 12 Vic. c. 63, sec. 40, shall be given by bond to the res- pondent or respondents in the sum of one hundred pounds, being the sum named in the statute, which bond shall be executed by the appellant or appellants, or one of them, and by two sufficient sureties, (or if the appellant or ap- pellants be absent from or do not reside in Upper Canada, then by three sufficient sureties,) and the conditions thereof shall be to the effect that the appellant or appellants shall and will effectually prosecute his or their appeal, and pay such costs and damages as shall be awarded in case the judgment appealed from shall be affirmed or in part I'M b/n £46 KRROR AND APPEAL OBDKB8. »*•%». 4... L. ' • ■■ "i if |i affirmed. The bond and conditions may be in the form given by rule number five. V. That the bond for securing costs shall be in the fot lowing form : For forms of bond and affidavit, see Appendix of Forms. 4 "- •( ; VI. That when the judgment to be appealed from di- rects the payment of money, and the appellant desires to- stay the execution thereof, then the bond or security afore- said shall be double the amount of such judgment, unless the same shall be in debt or bond for a penal sum or upon a warrant of attorney or Cognovit Actionem or otherwise, exceeding in amount the sum really due, in which case the bond shall be in double the true or real debt and costs only ; and the amount so recovered, and of such true and real debt and costs shall be stated in the condition orrecital to the condition of the bond or security! immediately after the statement of the nature of the action, and the condition shall be to the effect that the said (appellant) shall effectually prosecute such appeal, and if the said judgment so to be appealed from or any part thereof shall be affirmed, shall pay the amount directed to be paid by the said judgment, or the part of snch amount ab to which the said judgement shall be affirmed (if it be affirmed only in part) and all damages which shall be awarded against the said appellant in the appeal : provided always, that in cases where the security to be given shall be in a sum above five hundred pounds, it shall be in the discretion of the court appealed from, or of a judge thereof in vaca; ion, t' allow security to be given by a large number of jbligors, apportioning the amount among them as shall appear reasonable. VII. That when the judgment appealed from shall be in an action of ejectment, the security required by the last preceding rule shall be taken in double the yearly value of the property in question ; and in cases where the mat* SRROR AND APPEAJL ORDERS. £4» be ast ao lat* ter in question shall relate to the taking of any annual or other rent, customary or other duty or fee, or any other such like demand of a general and public nature, affect- ing future rights, the amount in which security shall be taken in addition to the security required for costs shall be fixed by order of a judge of the court appealed from* Vlil. That the security required by the two last pre- ceding rules shall be given by bond, and the recitals and condition in such bond shall be such as shall conform to- the provisions or the said two rules, with such further of other conditions, in cases where the judgment is not for the payment of a sum of money only, as the judge approv- ing such security may think fit to order. . , ., i/t. IX. That the parties to such bond, as sureties, shall. by affidavit respectively, make oath thai they « re resident householders or freeholders in Upper Canada, and seve- rally worth the sum mentioned in such bond, over and above what will pay and satisfy all their debts ; which affidavit may be in the following form ; — ^JPor forms of bond and affidHvits, see Appendix of Forms. •> * / ■ X. That fourteen days' notice shall be given of the time and place at which application will be made to the court from whose judgment it is intended to appeal, or to a judge thereof in vacation, for the allowance of such security ; which notice shall contain the names and ad- ditions of the obligors. I .. . \ y{f XI. That the allowance of such security may be op- posed by affidavit ; but that in the absence of any such opposition, the affidavit above mentioned shall be suffi- cient, in the discretion of the judge, to warrant the allowance thereof. XII. That, if allowed, the officer of the court shall en- dorse on such bond the word " allowed," prefixing the- 250 ERROR AND APPEAL ORDERS. ■•>'..,...... •♦•.M. ;t #*>•♦ 1 date and signing his name thereto ; upon which, such security shall be deemed perfected. No case has been decided in the Court of Chancery except JR« Frt»> man, and casea cited mpra p. 289, bearing on the practice in oases of appeals from the Court of Chancery to this court, but any question trbioh may arise will most probably be decided in accordance with the principles enunciated in Grant v. Great Western Railway Co., 8 U. C. C. P. 848. In this nn application to stay the proceedings in appeal on the ground of irregularity, no notice of the grounds of appeal having been eerred or formal leave of appeal asked, all parties having understood the case would be appealed, the Court of Common Pleas refused to make the rule. M. C. Cameron, arguendo, " The plaintiff shows no ground for interference by this court, and the case having properly gone to the Court of Appeal, if nol pursued there according to the practice, that court was the proper place to apply for a remedy." And Richards, J., (who delivered the judgment of the court] " As the statute was passed since the rules of the Court of Appeal were framed, there can be no doubt that ite provisions must prevail when the rules or the statute conflict," *^ Proceedings in appeal shall be a supersedeas of the execution from the perfecting and allowance of the security required." " If a respondent is not aware of the appellantA ground of appeal and dt;8ires to ascertaia them, the statute of rules of the Court of Appeal afford him ample means of obtaining them, or of depriving the party of his remedy in that court if he refuses to furnish them." ♦.; )r XIII. That cases coming within the Twelfth Victoria, chapter sixty-three, section forty, numbers two and four, shall be disposed of by special order, as the occasion may require ; except that the security thereunder shall be personal and by bond as aforesaid. XXIII. That when the grounds of appeal and answer thereto are filed, the cause shall, on application of either party, be set down for argument by the clerk of thiff court, for a day to be fixed, of which notice shall be duly given to the opposite party, his attorney or agent, at least four days before the day appointed for the hearing of such appeal. ; .;v XXIV. Four clear days before the day appointed for argument the appellant shall deliver to the clerk of the Court of Error and Appeal, for the use of the judges £RROR AND APPEAL ORDERS. 251 thereof, two copies of the judgment of the court below, and of the reasons of appeal, and of the pleadings or an- swers thereto ; and in default thereof the appeal may be dismissed with costs. r XXV. That the result of the appeal in this court shall be certified to the court appealed from by the clerk, under the seal of this court, which certificate shall briefly state that the judgment has been affirmed, reversed or modified (as the case may be), with or without costs ; and when with costs, to be paid by either party, adding the amount thereof when the same shall have been taxed, as taxed ; and that upon such certificate being filed in the court below, any entry thereof may be suggested on the roll, and further proceedings in that court be had, according to the course and practice of such court ; and in case of any new question arising, according to the course and practice of the Court of Queen's Bench in England. Provided that the respondent, if the successful party, may proceed upon the judgment by execution, and upon the bond or security required to be given under the statute and the foregoing rule in that behalf; or he may adopt either course separately, without prejudice to his other remedy by waiver, delay or otherwise. XXVI. That all writs and all rules and orders of this court in cases appealed shall be tested or bear date the day after their issuing, and be signed by the clerk of the court. ,.. XXVII. That no writ of appeal shall be a supersedeas of execution until service of the notice of the allowance thereof, containing a statement of some particular ground of appeal intended to be argued. Provided, that if the error stated in such notice shall appear to be frivolous, the court or a judge, upon summons and proof of the service thereof by aflridavit, may order execution to issue. Coiton v- Corby, 5 U. C L. J. 67. An injunction had been ubtaioed •teyiug proceedings in an action at law ; by the decree cf the Court of 852 EBROR AND APPEAL ORDERS. ^^v*. r Obancery the plaintifTa' bill was declared to be improperly filed and the defendant was about to proceed at law. The court, however, suspended the operation of its decree to allow an appeal to be entered. Blake Oi, "There is no doubt but this court has full power over its decrees as to the time of their operation. In England it was competent for the House of Lords in cases of appeal to suspend proceedings ; and the Court of Ohanoery there has at all times full power over its own decrees to suspend tiiefr operation, and baa frequently exercised it, owing to the great delay which formerly occurred in carrying out the appeal. In the case of Mayor of Gloucester v. Wood, 8 Hare 150, Wigram, V. C. (hough he dismissed the bill refused to allow the money to be taken out ot court until the appeal could be made. In this country the Legislature has laid down the reverse rule from that in England, that not staying proceedings in appeal should be the rule and staying them the exception. I take it to be clearly our duty to stay our decree, as otherwise irreparable injury may be the result — as in the case of an ejectment for instance." " " I cannot agree to the doctrine that because of the late Error and Appeal Act this court cannot exercise jurisdiction. This court has all the power it ever had, and the new law regulating the power of appeal has not altered our practice." Where the question was one of priority, the appellant assignee of a mortgagor, was held not liable to give additional security under section 16'^ •ub-seotion 4, to the respondent's judgment creditors, B. U. C, v. Patroff, 8 U. 0. L. J- 828, XXVIII. That in appeals from the Court of Chancery, ^11 securities under the fortieth section of the said Act of the Provincial Parliament, passed in the twelfth year of the reign of Her present Majesty, chapter sixty-three, shall be in the form of a bond, which, together with the affidavit of justification, shall be filed with the registrar of the said court, and notice thereof served on the res- podent, his solicitor or agent ; and the same shall stand allowed, unless the respondent shall within fourteen days after service of such notice move the said court to disal- low the same. A special application shall be necessary to stay proceedings under any of the exceptions in the said section of the said act. ., XXIX. That the petition of appeal shall be in the form set forth to the schedule to this order. The petition of appeal shall be filed with the clerk of the court, and a EBROR AND APl*EAL ORDERS. W9 ■copy thereof, together with a notice of the hearing of the appeal, shall be served on the respondent, his solicitor or agent, at least two months before the time named in such notice for the hearing of the appeal. Such petition ishall not be answered, but at the time named in such notice the parties must attend to argue the appeal; and upon the filing of the petition, and service of a copy thereof and of such notice, the appeal shall stand in the same plight as if the petition had been answered, and such time appointed by this court for the hearing there- of. For for tho form of petition of appeal, see act respecting the Court of Error and Appeal, sec. 54. '\ < • j » \- : XXX. That the printed cases shall be and are hereby abolished, but copies of the pleadings and evidence shall be printed, as at present done in the appendix to the case, to which the reasons of appeal, and for supporting the decree or order, shall be appended ; and the same rules shall apply to such printed copies and reasons as now apply to the printed cases, and the same shall for all pur- poses be considered the printed cases of the appellant and respondent respectively. Provided always, that nothing herein contained shall prevent the parties from joining in printing such copies as they now do in print- ing the appendix, if they shall be so disposed. Such printed cases must be deposited with the clerk of the court for the use of the judges, at least four days before the hearing of the appeal. XXXI. That when it shall be intended to appeal to Her Majesty in the Privy Council, the securities required by the statute twelfth Victoria, chapter sixty-three, sec- tion forty-six, shall be personal and by bond to the respondent or respondents — such bond to be executed by the appellant or appellants, or one of them, and two sut ficient sureties (or if the appellant or appellants be absent from or do not reside in Upper Canada, then by three ! fi'; 254 ERROR AND APPEAL ORDERS. sufficient sureties) in the penal sum of five hundred pounds, in cases coming within the first part of the said section fort-six ; the condition of which bond shall be to the effect that the appellant (or appellants) shall and will effectually prosecute his (or their) appeal, and pay such costs and damages as shall be awarded in case the judg- ment (or decree) appealed from shall be affirmed or in part affirmed, and that execution shall not be stayed in the original cause until security shall further be given by bond, in conformity to the sixth, seventh and eighth rules, M^hen from the nature of the case such further security shall be requisite : And in cases from chancery- application to the Court of Appeal to stay proceedings, shall be by motion or notice ; which motion, if granted, shall be upon such terms as to security under the statute or otherwise, as the circumstances and nature of the casa XXXII. That the bond or security referred to in the last rule shall be in the following form. See Appendix of forms, for form of Bond. » '^ -w; XXXIII. That in every case of appeal to Her Majesty in Council, the obligors, parties to any bond as sureties, shall justify their sufficiency by affidavit, in the manner and to the same effect as is required by rule number nine of this court. XXXIV. In cases appealed from either of the courts of common law, or from the Court of Chancery, the name fees and allowance shall be taxed in appeal by the clerk of the Court of Error and Appeal for attornies and solici- tors, or any officer of the said court, as are allowed for similar services in the court from which the appeal should have been brought ; and that counsels' fees shall be tax- ed ii the discretion of the clerk provided that no fee to counsel exceeding ten pounds shall be taxed without an order of the judge who presided on the argument, or in his absence of the next senior judge. ERROR AND APPEAL ORDERS. 255 XXXV. That the regular and appointed days or times of sitting of this court shall be the second Thursday after the several Verms of Hilary, Easter and Michaelmas, as appointed by the statute 12 Vic. ch. 63, sec, 13, at eleven o'clock in the forenoon : Provided, however, that the said court may adjourn from lime to time, and meet at such other periods as shall be appointed for the hearing and disposing of any business brought before it. By 25 Vic. cap. 18, the times for llie sitting uf the Court o( Error and Appeal, aro to be the fourth Thursday next aftir'r the several terius of Hilary, Easter and Michaolmas. It may adjourn from time to time, and meet agaia at the time tixed on the adjournment, for the transuctioa of businoss. ' "; ■ , ■' : : ■' , ; ' ^;i- ORDER 27Tn JUNE, 1856. "- Ordered that copies of the pleadings and evidence shall be printed, in all cases appealed, together with the reasons of appeal, and the reasons relied upon for sup- porting the judgment, decree, or order ; and the opinions of the judges in the Court below, when not published in the Reports ; which copies shall, for all purposes, be considered the printed cases of the appellant and respondent respectively, and a copy must be deposited with the Clerk of the Court for the use of each of the judges at least four days before the hearing of the appeal. . , ORDERS 21st DECEMBER, 1658. It is ordered that, after the present sittings of this court, the clerk shall receive no appeal books unless they be printed, on one side only, on good paper, in demy quarto form, with small pica type. - . It is ordered that in all cases in which the case for appeal is required to be settled by any judge of either of the courts; the appellant shall serve on the opposite party a copy of the case he intends to submit for the judges appproval, at least four days before the applica- tion to have the case settled. ... / . > .. ; , I IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I '- IIIIM • 5 '""^= M 2.2 \^ m If la 12.0 1.8 1.25 1.4 J4 ^ . 6" — ► VI "W ^/. Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 145S0 (716) 872-4..03 mw I f % U ' ''« '.!_ ,! f tS6 CON. STAT. U. C. CAP. XT. CON. STAT. U. C. Cap. XV.— AN ACT RESPECT- ING COUNTY COURTS. XXXIII. The County Courts in Upper Canada shall possess the like jurisdiction and authority in respect of the matters hereinafter mentioned as was possessed by the Court of Chancery of Upper Canada, on the twenty- third M..y. one thousand eight hundred and fifty-three. 16 V. c. t19, s. 1. XXXyy. Any person seeking equitable relief may (personal! T or by attorney) enter a claim against any per- son from whom such relief is sought, with the clerk of the County Court of the county within which such last mentioned person resides, in any of the following case, that is to say: 16 V. c. 119, s. 2. 1 A person entitled to and seeking an account of the dealings and transactions of a partnership dissolved or ej^pired, the joint stock or capital not having been over eight hundred dollars ; 2. A creditor upon the estate of any deceased person, such creditor seeking payment of his debt (not exceeding two hundred dollars) out of the deceased's assets (not exceeding eight hundred dollars) ; 3. A legatee under the will of any deceased person, such legatee seeking payment or delivery of his legacy (not exceeding two hundred dollars in amount or value) out of such deceased person's personal assets (not ex- ceeding eight hundred dollars) ; 4. A residuary legatee, or one of the residuary legatees of any such deceased person seeking on account of the residue and payment or appropriation of his share there- in (the estate not exceeding eight hundred dollars) ; i.i- 1\ / ll"Ff cow. STAT. V. C, CAP. XT. 1(55^ 5. An executor or administrator of a]iy such deceased person seeking to have the persona^ estate (not exceed-^ ing eight hundred dollars) of such deceased personj administered under the direction of the Judge of the County Court of the county within which such executor or administrator resides ; 6. A legal or equitable mortgagee whose mortgage^ has been created by some instrument in writing, or a judgment creditor having duly registered his judgment, or a person entitled to a lien or security for a debt, seek- ing foreclosure or sale or otherwise to enforce his security, where the sum claimed as due does not exceed two hun- dred dollars ; 7. A person entitled to redeem any legal or equitable mortgage or any charge or lien and seeking to redeem the same, where the sum actually remaining due does not exceed two hundred dollars ; 8. Any person seeking equitable relief for, or by rea- son of any matter whatsover, where the subject matter involved does not exceed the sum of two hunred dol- lars. XXXV. Injunctions to restrain the committing of waste or trespass to property by unlawfully cutting, destroying or removing trees or timber, may be granted by the judge of any county court, and such injunctions shall only remain in force for a period of one month, unless sooner dissolved on an application to the Court of Chan- cery ; but the power to grant such injunction shall not authorize the prosecuting of the suit in the county court and the injunction may be extended and the suit further prosecuted to judgment or otherwise in the Superior Court in the like manner as if the same had originated in that court. A defendant moyiog to dissolve an injunction issued from a Oountr Court, is not bound t^ have the proceedings returned from the Oountr Court offioe, Abraham v. Shepherd, 4 Oraot 260 ; but, where the plaintiff' r; — J ji' ji f" yn mm " '•> %^^^ ■pit 'if**—' "Nwi W6 CON. STAT. U. C. CAP. XV. moves to extend an injunction i^^sued in a County Court, it is his duty to have the papers transmitted before the motiuu is heard, Stevenson v. Huff- man, 4 Grant 818. LVII. Any claim entered on the Equity side of a County Court may be removed by either party into the Court of Chancery by order of that court, to be obtained on a summary application by motion or petition sup- ported by affidavit, of which reasonable notice shall be given to the opposite party, and the order shall be made on such terms as to payment of costs, giving security in respect to the relief claimed and costs, or upon such other terms as to the Court of Chancery may seem just ; but no claim shall be removed, unless the Court of Chancery be of opinion that the nature of the claim renders it a proper one to be withdrawn from the jurisdiction of the County Court, and disposed of in the Court of Chancery, and tht ;aid Court of Chancery shall make the necessary regulations for the practice to be observed in proceedings under this section. 16 V. c. 119, s. 17. LVIIL In order that the mode of proceeding under this Act may be fully traced out, and from time to time improved and rendered as simple, speedy and cheap as may be, it shall be the duty of the Judges of the Court of Chancery, to frame such General Rules and Orders and all such forms as to them may seem expedient, concerning the process, practice, Orders and proceedings on the Equity side of the County Courts under this Act, and in relation to any of the provisions thereof as to which there may arise doubts ; and from time to time to alter and amend such Rules, Orders and Forms, and also the forms and mode of procedure prescribed by this Act ; and such Rules, Orders and Forms as may be made and framed by the Judges or any two of them, (of whom the Chancellor of Upper Canada shall be one,) shall, from and after a day to be named therein, be in force in every County Court, and shall be of the same CON. STAT. U. C. CAP. XV. 26T (of force and effect as if the same had been embodied in an Act of Parliament. 16 V. c. 119, s. 19. LXIII. If any suit or proceeding be commenced in the Court of Chancery for any cause or claim which might have been entered in a County Court, no costs shall be taxed against the Defendant in such suit or proceeding, and the Defendant, if he succeeds in the suit, shall be entitled to a Decree against the Plaintiff for his costs, as between Attorney and Client, unless the Court of Chancery be of opinion that it was a fit cause or claim to be withdrawn from a County Court and entered in the Court of Chancery. 16 V. c. 119, s. 22. ■ LXIX. Either party may appeal to the Court of Chancery against any Order or Decree made by the Judge of a County Court under the Equity Jurisdiction conferred by this Act ; and the Court of Chancery shall mal(e such Order thereupon in respect to costs or other- wise, or for referring back the matter to the Judge before whom the same was first heard, as may be just and proper ; But before the County Court Jud-e is called on to certify to the Court of Chancery, the Order or other matter appealed against, the party appealing shall enter into a recognizance, with sufficient sureties to the satis- faction of the Judge, to pay the sum decreed in case relief be not had on the appeal, or to obey the Order, (or as the case may be ;) and when the party appealing appears by Attorney, an affidavit shall be made by the Attorney, that the appeal is not intended for delay as he believes, and that there is, in his opinion, probable cause for reversing the Order or Decree against which the appeal is made ; and the Court of Chancery shall specially make the necessary regulations for the practice to be observed in proceedings under this section. 16 V. c. 119,8. 18. n-^u.*: '-tU TW I? •VWn CON. STAT. U. C. CAP. XYI.. tej,(MMi'.; ■ r: •" :fS^' f? 1" CON. STAT. U. C. CAP. XV|.— AN ACT RESPECT-. ING THE SURROGATE COURTS. XXVI. Any person considering himself aggrieved by any order, sentence, judgment or decree of any Surrogate Court, or being dissatisfied with the determination of the judge thereof in point of law in any matter or cause under this Act, may, within fifteen days next after such order, sentence, judgment, decree or determination, ap- peal therefrom to the Court of Chancery, in such manner arid subject to such regulations as may be provided for by the rules and orders made under the Surrogate Courts Act 1858, or under this Act, and the said Court of Chan- cery shall hear and determine such appeals ; but no such appeal shall be had or lie unless the value of the goods, chattels, rights or credits to be affected by such order, . sentence, judgment, decree or determination, exceeds..^ two hundred dollars. 22 V. c. 93, s. 20. XXVII. In every case in which there is contention as to the grant of Probate or Administration, and the parties ' in such case thereto agree, such contention shall be re- ferred to and determined by either of Her Majesty's Superior Courts of Law or by the Court of Chancery, on, a case to be prepared, and the Surrogate Court having jurisdiction in such matter shall not grant Probate or Administration until such contention be terminated and disposed of by judgment, decree or otherwise. 22 V. c. 93, s. 21. XXVIII. Any case or proceeding in the said Surrogate , Courts in which any contention arises as to the grant of . Probate or administration, or in which any disputed question may be raised (as to law or facts), relating to matters and causes testamentary, shall be removable by any party to such cause or proceeding into the Court of Chancery by order of a judge of the said court to be ob- tained on a summary application supported by afildavit, 1\ . I ■^MPRl CON. CitAT. U. C. 6AP. XTI. 1^59 of which reasonable notice shall be given to the other parties concerned. 22 V. c. 93, s. 22. XXIX. The judge making such order may impose such terms as to payment or security for costs or other- wise as to him may seem fit ; but no case or proceeding shall be so removed unless it be of such a nature and of such importance as to render it proper that the same should be withdrawn from the jurisdiction of the Surro- gate Court and disposed of by the Court of Chancery, nor unless the personal estate of the deceased exceeds two thousand dollars in value. 22 V. c. 93, s. 22. XXX. Upon any case or proceeding being so removed as aforesaid, the Court of Chancery shall have full pow- er to determine the same, and may cause any question of fact arising therein to be tried by a jury and otherwise deal with the same as with any cause or claim originally entered in the said Court of Chancery ; and the final order or decree made by the said Court of Chancery in any cause or proceeding removed as aforesaid, shall, for the guidance of the said Surrogate Court, be transmitted by the Surrogate clerk to the registrar of the Surrogate Court from which cause or proceeding was removed. 22 V. c. 93, s. 22. XXXI. There shall be a clerk appointed to be called the surrogate clerk, who shall perform the duties repuired of the surrogate clerk by this act as well as the duties that by the rules and orders made as hereinbefore mentioned may be required of such surrogate clerk, and also such other duties as may be required of him by the Court of Chancery, and such surrogate clerk shall be deemed an officer of the said Court of Chancery, and be paid a fixed isalary not exceeding one thousand six hundred dollars yearly, and the governor shall from time to time ap- pbiht and at his pleasure remove such clerk. 22 V. €.93, s. 23. 260 CON. STAT. U. C. CAP. XXIY. I,-)'! til ' 1"? '' ' %•*! CON. STAT. U. C.. CAP. XXIV.— AN ACT RE- SPECTING ARREST AND IMPRISONMENT FOR DEBT. VIII. The Writ of Ne exeat Frovinciu shall be called a Writ of Arrest, and no order shall be granted for a Writ of Arrest unless the party applying for the writ has a cause of suit to at least such an amount, and shews by affidavit such facts and circumstances, as this Act requires in the case of a special order for holding a party to bail under the fifth section of this Act. 22 V. c. 33, s. 1. (1859.) IX. In suits for alimony, instituted after this Act takes effect, the Court or a Judge thereof may, in a proper case, order a Writ of Arrest to issue at any time after the bill has been filed, and shall, in the order, fix the amount of bail to be given by the defendant, in order to procure his discharge. 20 V. c. 56, s. 3. X. In case an order is made for a Writ of Arrest, in a suit for alimony, the amount of the bail required shall not exceed what may be considered sufficient to cover the amount of future alimony for two years, besides arrears and costs, but may be for less at the discretion of the Court. 22 V. c. 33, s. 2. (1859.) i : > XI. The bail or security required to be taken under a " Writ of Arrest " shall not be that the person arrested will not go or attempt to go out of Upper Canada, but shall merely be to the effect that the person arrested will perform and abide by the orders and decrees made or to be made in the suit, or will personally appear for the purposes of the suit at such limes and places as the Court may from time to time order, and will, in case he becomes liable by law to be committed to close custody, render himself (if so ordered), into the custody of any • / ■ip" CON. STAT. U. C. CAP. XXIV. Sheriff the Court may from time to time direct, c. 33, s. 3. (1859.) 261 22 V. XIII. Process of contempt for non-payment of any sum of money, or for non-payment of any cost.«», charges or expenses, payable by any decree or order of ll»e Court of Chancery, or of a Judge thereof, or by any rule or order of the Court of Queen's Bench or Common Pleas or of a Judge thereof, or by any decree, order or rule of a County Court or of a Judge thereof, is abolished ; and no person shall be detained, arrested or held to bail for non-payment of money, unless a special order for the purpose be made on an affidavit or affidavits establishing the same facts and circumstances a^: are necessary for an order for a Writ of Capias ad Satisfaciendum, under this Act ; and in such cause the arrest when allowed shall be made by mean? of a Writ of Attachment corres- ponding as nearly as may be to a Writ of Capias ad Satisfaciendum. 22 V. c. 33, s. 4. (1859.) XIV. But in case a party be arrested under a Writ of Arrest, it shall not be necessary before suing out a writ under the preceding section of this Act to obtain a Judge's order therefor, or to file any further affidavit than the affidavits on which the order for the Writ of Arrest was obtained. 22 V. c. 33, s. 5. (1859.) - - XV. Every decree or order of the Court of Chancery, and every rule or order of the Court of Queen's Bench or Common Pleas, and every decree, order or rule of a County Court, directing payment of money or of costs, charges or expenses, shall, so far as it relates to such money, costs, charges or expenses, be detuned a judg- ment, and the person to receive payment a creditor, and the person to make payment a debtor, within the mean- ing of this Act ; and the said persons shall respectively have the same remedies, and the Courts and Judges and the officers of Justice shall in such cases have the same y I m. Ml mt. :i I :m 86^ CON. STAT. U. C. CAP. XZIT. If*, 1 HJt '^ ii( ij^%^ i:K)wers and duties, as in corresponding cases nndef this Act. 22 V. c. 33, s. 14. (1859.) XIX. For the purpose of enforcing payment of any . money or of any costs, charges or expenses payable by any decree or order of the Court of Chancery, or any rule or order of the Court of Queen's Bench or Common Pleas, or any decree, order or rule of a County Court, the ■ person to receive payment shall be entitled to Writs of Fieri Facias and Venditioni Exponas respectively, against the property of the person to pay, and shall also be entitled to attach and enforce payment of the debts of or accruing to the person to pay, in the same manner respectively and subject to the same rules, as nearly as may be, as in the case of a judgment at law in a civil action ; and such writs shall have the like effect as nearly as may be, and the Courts and Judges shall have the same powers and duties in respect to the same and in respect to the proceedings under the same, and the . parties and Sheriff respectively shall have the same • rights and remedies in respect thereof, and the writs shall be executed in the same manner and subject to the same conditions, as nearly as may be, as in the case of , like writs in other cases ; but subject to such general orders and rules varying or otherwise affecting the practice in regard to the said matters, as the Courts , respectively may from time to rime make under their authority in that behalf. 22 V. c. 33, s. 12. (1859.) XX. In case a decree or order in Chancery, or of a County Court in the exercise of the equitable jurisdiction of such County Court, directs the payment of money into Court or to the credit of any cause, or otherwise than to any person, the person having the carriage of the decree or order, so far as relates to such payment, shall be deemed the plaintiff within the meaning of this Act. 22 V. c. 33, 8. 16. (1859.) M> n ((JON. 8TAT. u. c. Cap. xxxn. 2ito XXI. The Court of Chancery may also issue Writs bf Sequestration as hitherto or in such cases as by general or other orders the Court may think expedient; and nothing in this Act shall be construed to take away the jurisdiction of the Court under or by means of such writs ; and no writ shall issue from Chancery against the lands of the person to pay, but if the decree or order be registered, the Court may enforce the charge thereby created upon real estate, according to the practice of the Court in the case of a charge on real estate created by other means. 22 V. c. 33, s. 13. (1859.) I f CON. STAT. U. C. CAP. XXXII.— AN ACT RE- SPECTING WITNESSES AND EVIDENCE. I. In any case, criminal or civil, in which an oath, declaration or affirmation is required by law, or upon any lawful occasion whatever on which the oath of any per- son is by law admissible, a Quaker, Menonist or Tun- ker, or a member of the church known as the "Unitas Fratrum," or the United Brethren, sometimes called the Moravian Church, having first made the following declar- ation or affirmation, viz : " I, A. B., do solemnly, sincere- ly and truly declare and affirm that I am one of the Society called Quakers, Menonists, Tunkers or Unitas Fratrum or Moravians," {as the case may be,) may make his affirmation or declaration in the form following, that is to say : " I, A. B., do solemnly, sincerely and truly declare and affirm, &c. ;" and such affirmation or declar- ation shall have the same force and effect to all intents and purposes in all courts of law and Equity and all other places, as an oath taken in the usual form. 49 6. 3, c. 6,-10 G. 4, c. 1. J II. Every person authorized or required to administer an oath for any purpose, may administer such affirma- 264 CON. STAT. U C. CAP. XXXII. \i I [•**• •l*%. 'ii te: ' i tion or declaration. 49 G. 3, c. 6, ss. 1, 2, 3, — 10 G. 4, c. 1,-22 V. c. 100, H. 101. III. No person offered as a witness .shall, by reason of incapacity from crime or interest, be excluded from giv- ing evidence, either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, officer or person having by law, or by consertt of parties, authority to hear, receive and examine evi- dence. 16 V. c. 19, s. 1. IV. Every person so offered shall be admitted and be compellable to give evidence on oath, or solemn affirma- tion where an affirmation is receivable, notwithstanding that such person has or may have an interest in the mat- ter in question or in the event of the trial of some issue, fatter, question of injury, or of the suit, action or pro- ceeding in which he is offered as a witness, and notwith- standing that such person so offered as a witness, had been previously convicted of a crime or offence. 16 V. c. 19, s. 1. V. This act shall not render competent or authorize or permit any party to any suit or proceeding, individually named in the record, or any claimant or tenant of pre- mises sought to be recovered in ejectment, or the land- lord or other person in whose right any defendant in replevin may make cognizance, or any person in whose immediate or individual behalf any action may be brought or defended either wholly or in part, or the hus- band or wife of any such party to be called as a witness on behalf of such party, but such party may in any civil proceeding be called and examined as a witness in any suit or action at the instance of the opposite party; provided always, that the wife of the party to CON. STAT. U. C. CAP. XXXII. 265 any suit or proceeding named in the record, shall not be liable to be examined as a witness by or at the in- stance of the opposite party. 16 V. c. 19, s. 1. VI. Whenever any book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, and no other statute exists which renders its contents proveable by means of a copy, a copy thereof or extract therefrom shall be admissible in evidence in any court of justice, or be- fore any person having by law or by consent of parties, authority to hear, receive and examine evidence, provided it be proved that it is an examined copy or extract, or that it purports to be signed and certified as a true copy or extract by the officer to whose custody the original has been entrusted, 16 V. c. 19, s. 9. VII. Such officer shall furnish sn; h cei-tified -^opy or extract to any person applying for the same at a reason- able lime upon his paying therefor a sum, not exceeding ten cents, for every folio of one hundred words. 16 V. VIII. If any officer authorized or required by this act, or by any law or usage in force in Upper Canada, to fur- nish any certified copies or extract, wilfully certifies any document to be a true copy or extract, knowing that the same is not a true copy or extract, he is guilty of a mis- demeanor, and shall upon conviction be imprisoned for any term not exceeding eighteen months. 16 V. c. 19, 8. 10. IX. In any action at law or suit in Equity where, ac- cording to the existing law exclusive of the provisions contained in this act, it would be necessary to produce and prove an original will in order to establish a devise or other testamentary disposition of or affecting real estate, the party intending to establish in proof such de- MB «0N. STAT. U. C. CAP. XXXH. i m m ^-j)]' '•";1^*'; •sac*" m: :if*r**-' '•;» ,'■ vise or Other testamentary disposition, may give notice to the opposite party ten days at least before the trial oi other proceeding in which the said proof is intended to be adduced, that he intends at the said trial or other pro- ceeding to give in evidence as proof of the devise or other testamentary disposition, the probate cf the will or letters of administration with the will annexed, or a copy there- of, stamped with the seal of the Surrogate Court grant- ing the same ; and in every such case probate or letters of administration or copy thereof, respectively stamped as aforesaid, shall be sufficient evidence of such will, and of its validity and contents notwithstanding the same may not have been proved in solemn form, or have been otherwise declared valid, in d, contentious cause or mat- ter, unless the party receiving such notice does within four days after such receipt, give notice that he disputes the validity of such devise or other testamentary disposi- tion. 22 V. c. 93, s. 33. X. In every case in which in any such action or suit the original will is produced and proved, the court or judge before whom such evidence is given may direct by which of the parties the costs thereof shall be paid. 22 V. c. 93, s. 36. : XL In case of the death of any person in any of Her Majesty's possessions out of Upper Canada, after having made a will sufficient to pass real estate in Upper Can- ada, and whereby any such estate has been devised, charged or affected, and in case such will be duly proved in any court having the proof and issuing probate of wills in any of such possessions, and remains filed in such court, then in case notice of the intention to use such pro- bate or certificate in the place of the original will, be ^ven to the opposite party in any such proceeding oiie month before the same is to be so used, the production of the probate of the will, or a certificate of the judge, r. ^"PTf I CON. STAT. U. C. CAP. LXIX. tS^ registiax or clerk of such court, that the original is 'filed and remains in the court, and purports to have been exe,- cuted before two witnesses, shall, in any proceeding in any court of law or Equity in Upper Canada concerning such real estate, be sufficient prima facie evidence of such will and the contents thereof, and of the same having been executed so as to pass real estate, without the pro- duction of the original will ; but such probate or certifi- cate shall not be used if, upon cause shewn before any such court, or any judge thereof, such court or judge finds any reason to doubt the sufficiency of the execution of such will to pass such real estate as aforesaid, and makes a rule or order disallowing the production of such probate. 16 V. c. 19, s. 5. XII. The production of the certificate, in the last pre- ceding section mentioned, shall be sufficient prima facie evidence of the facts therein stated, and of the authority of the judge, registrar or clerk, without any proof of h's appointment, authority or signature. 16 V. c. 19, s. 6. c. CON. STAT. U. C. Cx\P. LXIX.— AN ACT RE- SPECTING THE PROPERTY OF RELIGIOUS INSTITUTIONS IN UPPER CANADA. VIII. When land held by trustees for the use of a con- gregation or religious body, becomes unnecessary to be retained for such use, and it is deem^^d advantageous to sell the land, the trustees for the time being may give notice of an intended sale, specifying the premises to be sold and the time and terms of sale ; and after publica- tion of the notice for four successive weeks, in a weekly paper published in or near the place where the lands are situated, they may sell the land at public auction ac- cording to the notice, but the trustees shall not be obliged to complete or carry a saic into effect if in their judgment an adequate price is not offered for the land. M" 26S CON. STAT. U. C. CAP. LXIX. b i . n ri. "^o-c . IX. The trustees may thereafter sell the land either by public or private sale ; but a less sum shall not be ac-^ oepted at private sale than was offered at public sale. X. Before a deed is executed in pursuance of a public or private sale, the congregation or religious body for whose use the lands are held, shall be duly notified there- of, and the sanction of the court of chancery obtained for the execution of the deed. 18 V. c. 119, s. 6, — 12 V. c. 91, s. 2. -. t^ XI. Trustees selling or leasing land under the authority of this act shall, on the first Monday in July in every year, have ready and open for the inspection of the con- gregation or religious body which they represent, or of any member thereof, a detailed statement shewing all rents which accrued during the preceding year, and all sums of money whatever in their hands for the use and benefit of the congregation or religious body, which were in any manner derived from the lands under their control or subject to their management, and also shewing the application of any portion of the money, which has been expended on behalf of the congregation or body. 18 V. c. 119, s. 6. XII. The Court of Chancery may in a summary man- ner, on complaint upon oath by three members of a con- gregation or religious body, of any misfeasance or mis- conduct on the part of trustees in the performance of duties authorized by this act, call upon the trustees to give in an account ; and may enforce the rendering of such account, the discharge of any duties, and the pay- ment of any money^ so that the congregation or religious body may have the benefit thereof ; and the court may compel the trustees, in case of any misconduct, to pay the expense of the application, or may award costs to the trustees in case the application be made on gi'ounds which the court considers insuflicient or frivolous or vex- atious. 18 V. c. 119, s. 7. ,.., Ll.;,i -IW CON. STAT, U. C. CAP. LXXIV. 269 CON. STAT. U. C. CAP. LXXIV.— AN ACT RE- SPECTING CUSTODY OF INFANTS. VIII. Any of the Superior Courts of Law or Equity in Upper Canada, or any judge of any of such courts, upon hearing the petition of the mother of any infant, being in the sole custody or control of the father thereof, or of any person by his authority, or of any guardian after the death of the father, may, if such court or judge sees fit, make order for the access of the petitioner to such infant, at such times and subject to such regulations as such court or judge thinks convenient and just, and if such in- fant be within the age of twelve years, may make order for the delivery of such infant to the petitioner, to remain in the care and custody of the petitioner until such infant attains the age of twelve years, subject to such regula- tions as such court or judge may direct, and such court or judge may also make order for the maintenance of such infant by payment by the father thereof, or by pay- ment out of any estate to which such infant may be en- titled, of such sum or sums of money from time to time, as, according to the pecuniary circumstances of such father or the value of such estate, such court or judge thinks just and reasonable. 18. V. c. 126, s. 1. IX. The court or judge as aforesaid may enforce the attendance of any person before such court or judge, to testify on oath respecting the matter of such petition by order or rule made for that purpose, and on the service of a copy thereof and the payment of expenses as a wit- ness, in the same manner as in a suit or action in the said courts respectively, or may receive affidavits res- pecting the matters in such petition. 18 V. c. 126, s. 2. X. All orders made by the court or a judge by virtue of this act, shall be enforceable by process of contempt by the court or judge by which or by whom such order has been made. 18 V. c. 126, s. 3. ' 270 CQ])r« STAT. U. C. CAP.. LXXIY. 1 ■ »■■ , 'NfctJ ^samD'oii ' XI. No order directing that the mother shall have the custody of or access to an infant shall be made by virtu©; of this act, in favour of a mother, against whom adultery has been established by judgment in an action for crimi- nal conversation, at the suit of her husband against any person. 18. V. c. 126. s. 4. As to the objects contemplated by the English Act 2 <& 8 Vio. e. 04 upon which this statute is founded, see Lord Oottenham's judgment in Warde v. Warde, 2 Phill. 181. As to where jurisdiction will be exercised by the court, see Ee Finn, 2 DeG. <& S. 457 ; such jurisdiction extends both to foreign infants in the country and native infants out of the jurisdiction, Hope v. Hope, 4 DeG- M. A G. 846. Under this statute a married woman may petition in her own name with- out naming next friend, He Groom, 1 Hare 88 ; and the order may be made ex parte, if the necessity of the case requires it, Re Taylor, 11 Sim. 178. The courts in England have refused to interfere where the wife has un» justifiably deserted her husband, He Tat/lor, 11 Sim. 178; where the mother has contracted extravngant habits, is without means of contributing to the cliild's support, and had married a second time, concealing the fact from the child's guardians, Shilleto v. Collett, 8 W. R. 683 ; or where there had been prior immorality on her part and there was want of bona fides ia the application, where there was an alleged object in view and a probable, chance of contamination, Re Moore, 11 Irish Com. Law Reports, 1. They have removed the children from the father on the grounds of notor- ious immorality, Wellealey v. Duke of Beaufort, 2 Russ. 1 ; Thomas v. Roberts, 3 DeO &, Sim. 758 ; avowed infidelity, Shelley v. Westbrooke, Jac. 266 ; infamous criminality though not followed by judicial conviction, Anon, 2 Sim. N. S. 54 ; cruelty and removal out of jurisdiction, DeManne- ville V. BeManneville, 10 Ves. 52 ; but have refused to do so on the ground of poverty, or of peculiar religious views, Curtis v. Curtis, 5 Jur. N. S. 114. On the other hand, where the father had abandoned the care of the child- ren to their aunt the guardian of their fortunes, and was himself in embar- rassed circumstances, his application to have them returned to him was refused, Lyons v. Blenkin, Jac. 245. The courts have refused to exercise jurisdiction in removing children from father and mother merely because it might be for the children's benefit, Re Finn, supra ; Curtis v. Curtis, supra. \ Where natural children had been provided for by the father and were under the care of a guardian appointed by him, the court did not debar the mother from access to the children, but referred to the master to ascertain what might reasonably be allowed, Courtois v. Vincent, Jao. 268. For other oaaes on the subject see those referred to in the cases oitod above. x ■ '■ \\\ CON. STAT. n. C. CAP. LXXXYIII. 271 CON. STAT. U. C. CAP. LXXXVIIL— AN ACT RE- SPECTING THE LIMITATION OF ACTIONS AND SUITS RELATING TO REAL PRO- PERTY. XXXI. No person claiming any land or rent in equity shall bring any suit to recover the same but within the period during which by virtue of the provisions herein- before contained he might have made an entry or distress, or brought an action to recover the same, respectively, if he had been entitled at law to such estate, interest or right, in or to the same as he shall claim therein in equity. 4 W. 4, c. l,s. 32. XXXII. When any land or rent shall be vested in a trustee upon any express trusi, the right of the Cestui que trust, or any person claiming through him, to bring a suit against the trustee, or any person claiming through him, to recover such land or rent, shall be deemed to have first accrued, according to the meaning of this act, at, and not before, the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him. 4. W. 4, c. 1, s. 33. XXXIII. In every case of a concealed fraud, the right of any person to bring a suit in equity for the recovery of any land or rent of which he, or any person through whom he claims, may have been deprived by such fraud, shall be deemed to have first accrued at, and not before the time at which such fraud shall, or with reasonable diligence might have been first known or discovered. 4. W. 4,c. 1,8. 34. XXXIV. Nothing in the last preceding clause con- tained shall enable any owner of lands or rents to have a %n CON. ITAT. U. C. CAP. IXXXYtn. suit in equity for the recovery of such lands or rents, or for setting aside any conveyance of such lands or rents,, on account of fraud against any bona fide purchaser for valuable consideration, who has not assisted in the com- mission of such fraud, and who, at the time that he made the purchase did not know and had no reason to believe that any such fraud had been committed. 4 W. 4, c. 1^ 8.34. XXXV. Nothing in this act contained shall be deemed to interfere with any rule or jurisdiction of courts of Equity in refusing relief on the ground of acquiescence, or otherwise, to any person whose right to bring a suit may not be barred by virtue of this act. 4 W. 4, c» s. 35. *■> V. ■;/.:■:, :.f-r^-"' > ■*>■•,.«■ ' t. ■:"> 'A ^^^T APPENDIX OF FORMS. S7& APPENDIX OF FORMS. I. — Bills. Address. 1. To the nondurable the Judges of the Coutt of Chaneeiy. Commencement of informations and bUls. 2. Informing sheweth unto your Lordships, the Honourable Joha Sanfield Macdonald, Her Majesty's Attorney General for Upper Canada, on behalf of Her Majesty. 3. Informing sheweth unto your Lordships, the Hon. J. S. M., Her Majesty's Attorney General for U. C, at and by the relation of A. B. of the City of Toronto, in the County of York, Esquire. 4. The Bill of Complaint of A. B., of the Township of Scarboro', in the Couuty of York, yeoman, Sheweth. 5. Humbly complaining sheweth unto your Lordships, your com< plainant S. T. of the City of Toronto, in the County of York, merchant. 6. The Bill of Complaint of the Corporation of the Township of South Norwich, a corporation situate in the County of Oxford and Province of Canada, Humbly complaining sheweth unto your Lord- ships, your complainants the Corporation of South Norwich, as follows. 7. The Bill of Complaint of A. B., an infant within the age- of twenty-one years by his next friend C D., of the City of Toronto, in the County of York, merchant. 8. The Bill of Complaint of A. B., wife of C. B., of the City of Toronto, Esq., by her next friend X. Y., of the City of Toronto, Esq. 274 APPENDIX OF FORMS. 9. Foreclosure. IN CHANCERY, Between A. B., Plaintiff, and C. D., Defendant. City op Toronto, To the Honourable the Judges of the Court of Chancery. The Bill of Complaint of A. B. of the City of Toronto, in the County of York, merchant. Sheweth, 1. Under and by virtue of an Indenture of Bargain and Sale by way of Mortgage bearing date ' • ( ' and accounts taken, and that your \ ^ . complainant may have such further V and other relief as may seem pro- . .> ...•.• > ,' .. I . per. ,.. i • And your complainant will evec pray. X^-' V^ «S^')i- ■■.;.\ •i *- 1.'.*E 476 APPENDIX or roRiis. !f"< ^ is- 11. Foredosufe against purchaser of equity of redemption — Dcjaul in payment of interest. (Styleof cause, dc.) 1. Under and by virtue of an Indenture of mortgage bearing date •(Arc, and made between one X. Y. of the tuwnship (fee, of the first part, S. Y. hia wife (who became a party thereto for the purpose of barring her dower only) of the second part, and your complainant of the third part ; your complainant is a mortgagee of certain free- hold property therein comprised and described as (insert description) for securing payment of the sum of ■ and interest there- on payable half yearly on the — .— — — days of January and -July in each and every year. 2. Default has been made in payment of the instalment of inter- •«Bt due on the ■ day of July, 186 — , by reason whereof your complainant submits he is entitled to call in and have paid to him the whole of the money secured by the said mortgage and ia default to a foreclosure. 3. No sum has been paid on account of the principal money, a^d there is due for principal money the sum of and for interest the sum of . 4. Your complainant has not been in occupation of the mortgaged premises or of any part thereof. 6. By Indenture of Bargain and Sale bearing date &o., the said X. Y. conveyed absolutely to the defendant C. D. the said mortga- ged premises and the said C. D. is now entitled to the equity of re- demption in the said lands. Your complainant therefore prays that he may be let in to redeem ^.„ ,, the said mortgaged property, and j.^ . . , • . that the same may be re-conveyed to him upon payment of the prin* W' V3 "■ ', ':i 178 ▲PFCNDIX or FORMS. cipal money and interest and coats dne and owing upon the said mort- gage. That for the purposes afore- said all proper directions may be given and acounts taken. And that your complainant may have such further and other relief as under the circumstances seem proper. And your complainant will ever pray. .1. ^.it*^ 14, For an accotmt of the dealings of a partnership expired, (Style of Cause, dc.) 1. From the day of down to the day of your complainant and the defendant C. D. car- ried on the business of in partnership under certain articles of CO partnership dated, i •'.■*' w?»r « '*^,-'i'i ')' \ ■^VK^'n 16. Specific Performance — Written agreement. (Style of cause, die. ) 1. By an agreement dated the • day of Itnd signed by the defendant C . D. the said defendant contracted to ■m APPSNDIX OF FORMS. hvkf of your complainant (or to aell to him) certain freehold (orleoMp Jwld) property therein described or referred to, for the sum of 2. Your complainant has made or caused to be made to the said C. D. application specifically to perform the said agreement on his part, but he has not done so. Your complaiaant therefore prays that the said agreement may be specifically performed, and for that purpose that all proper direc* tions may be given, your complain- ant hereby offering to perform th9 said agreement on his part. And, (be. 17. Specific Pe*formance — parol agreement and part performance* (Style of cause, d'C.) 1. The defendant C . D. being or pretending to be seised in fee simple in possession of lot No. — , in «bc. , your complainant and tha said C. D. on or about the day of ^— entered into a verbal agreemeut for the purchase by your complainant of the said lot of land at or for the price or sum of payable Your complainant made and caused to be made frequent appli« cations to tho said C . P. for the purpose of obtaining a specific exe« cution of the said agreement, but without effect. Your complainant therefore prays i ? that tho said contract may be specifically performed by the said CD., your complainant being L , '/\j ready and willing and hereby offer- r .. ^ :,, , / ing to perform the same in all re»» APPENDIX OF FORMS. 961 pects upon his part, and that your complainant may have such fur- ther and other relief as may seem proper. And "»; J • ■ demnify him against the costs of such action. 21 . Bill by a person entitled to have a new trustee appointed in a case where there is no power in the instrument c eating the trust to ^ appoint new trustees, or where the power cannot he exercised^ and seeking to appoint a new trustee. (Style of cause, dx.) 1. Under an Indenture dated, luintiff» bill of complaint contained to be true in such manner and form as the saujo are therein act forth and alleged doth demur to the said bill ; and for cause of demurrer eheweth that it appears by the said bill that there are not proper S84 APPENDIX OF FORMS. parties thereto, inasmuch as it appears upon the face of the said bill that the creditors of the said F. C. other than the said plaintiff, who executed the instrument or document in the bill mentioned, are necessary parties to the said bill by name, but yet the plaintiff, lias not made the said creditors parties to the said bill by name, "Whereupon, and for divers other good causes of demurrer appearing in the said bill, the defendant doth demur thereto and humbly de- mands the judgment of this lionourable court whether he shall be compelled to make any further or other answer to the said bill, and prays to be dismissed with his costs and charges in tliis behalf most wrongfully sustained. "■^'mr. ?I If 23. For want of Equity. ,1 (Style of cause.) This defendant by protestation, . Certificate of cout^el thereon. We conceive this cause is proper to be re-heard touching tht matter mentioned in this petition, if the court shall think fit. A. B. C. D. Consent of Petitioner. I agree for the purpose of obtaining a re-hearing of this cause to deposit ten pounds with the registrar, and to pay such costs, if any, as this court may award in respect of any proceedings had upon the decree made herein. Witness. i i Fiat of Judge. Upon the petitioner depositing ten pounds with the registrar, and consenting to pay such costs as this court may award in respect of any proceedings had upon the decree in this cause, let the registrar set this cause down for re-hearing next after the cauaes already appointed. , It would be almost useless in cases of petitions tinder 12 Vic. c. 72, and of lunacy, to give a form of petition, seeing that the facta vary so much in eacii case. The two following forms are inserted, by request, more to show the general frame and requirements of such petitioua than as forms. 34, Petition under 12 Vic. Cap. 72, to have guardian assigned and land sold by private sale. In Chancery, In the matter of A. L. an infant within the age of twenty-one years. And in the matter of an act pass- ed in the twelfth year of the reign of Her Majesty Victoria, and chaptered seventy-two. To the honourable, APPEITDIX OF FORMS- 299 if • ■ • ■ . ■ b^^Ai* l-< 2 . Tliat tho interest of your petition - er ill (the said landa may be sold in such manner and on such terms aa this honourable court may think fit. 3. That the moneys realiised by such sale may be invested for the bone- tit of your petitioner in such man- ner as this honourable court shall think fit to order. 4. That for the purposes aforesaid all proper directions may be giveu and accounts taken or that thia honourable court may make aucb other orders in the premises 09 may seem meet. And your petitiotner will ever laray. ,'^f^ 3)5. Petition to have a person declared a lunatic and a commiUet appointed over hia person and property. In Chancery. In the matter of B. B., of the City j,, .. ,^,. ,., of Toronto, in the County of York, baker. And in the matter of an Act passed ., in the ninth year of the reign of ' , Her Majesty, Queen Victoria, and , chaptered ten. ; ', , And in the matter of an Act passed in the twentieth year of the reign ; . of Her Majesty, Queen Victoria, and chaptered fifty-six. To the honourable, ':i r Co still is seised of or entitled to certain real estate, consisting of 4. The said R. B. was not possessed of any perso.ial property except the household furniture in his dwelling house on Street, and the same is still in the said house and used by his wife and the other members of the family. 5. The said R. B. was not indebted to any person in any amount whatever, and there is no charge or incumbrance upon his real estate or any part thereof. 6. The rents of the said houses amounting to the sum of , per annum, have since the said d^y of , been applied in payment of the sum of £ , charged for maintenance of the said R. B. in the said Asylum, and the remainder has been expended in the maintenance of his wife, and in the maintenance «nd education of his infant children. 7. The family of the said R. B. consists of his wife H. B., and his children, your petit:.oner, &c. 8. The said R. B. is whtUy incapable of transacting any business or of managing his affairs > \nd property, and your petitioner, and the other members of the fa» lily, are desirous that a commission of Lunacy should issue out of th s honourable court, to enquire as to the alleged lunacy of the said Iv B., or that he may be declared by the order of this honourable court to bo a lunatic, and that some fit and proper person may be appointed committee of the person and estate of the said R. 6. 9. Your petitioner therefore prays : — 1. That a commission of lunacy may iasue under the seal of this honourable court to enquire as to the alleged lunacy of the said R. B., or 2. That the said R. B. may be declared by the order of this honourable court to be a lunatic. 3. That some proper person may be appointed committee of the person and estate of the said R. B. 4. That such other order may be made as may to this honourable court seem proper. And your orator will ever pray :— KoTK. — It has been thought best to pray for an an order or a commis> APPENDIX OF FORMS. 295 and eion in the alternntive. The petition on an application for an order has -'/ to be supported by affidavita et.iting fuels, from which the Judge may draw his own conclusion. Affidavits by medical men ougl(t to show the present condition of the patient, how long he lins been nfflioted, and how long, judging from the nature of ihe cuae, it will probably be, before he will be restored to health, or what the issue of the disease will be; mere opinions by tli :-m that the patient ia a lunatic, however numerous aud re- spectable, are useless. The Committee is appointed in the usual way, see notes on Committee and Receivers. VI. — Notices. 36. Of filing answer or demurrer. (Short style of cause.) Take notice that the answer (or demurrer) of the defendant C. D. has this day been filed. Dated, ar (or deputy registrar.) Dated, &c. 39. To inspect papers produced. (Short style of cause.) Take notice that I will attend at the registrar's office on — — — nextj at o'clock, to examine the books and papers produced by the defendant (or plaintiff. ) Dated, -iund to the said R. S. , his executors, administra- eaid still remains justly due and owing to me under and by virtue of the said bond. " , \^ Sworn, &c. , t * 64. To prove bond debt, h]i personal representatives oj bond creditor. (Style of cause.) We A. B. of (fee, and C. B. of >' tors, or i a .,...-.. ill the sum of , conditioned for the pay- ment of the sum of with interest thereon on the day of vrhicl, ""'i bond is now produced and shown to us and marked as exhiDit A 3. We have not, iior hath either of us, to the knowledge or belief of the other, nor hath or have any other person by our order or the order of either of us, or to our knowledge or belief for our use or the use of either of us received, nor to our knowledge or belief did the said R. S. during his lifetime receive the said princi- pal sum of , or any part thereof, or the interest which has accrued thereon, since the said day of or any part thereof, or any security or satisfaction for the same or for any part thereof, save and except the said bond. 4. The whole o' the said principal sum of together with interest thereon from the day of as afore- said, still remains justly due and owing to us as such executors as aforesaid, under and by virtue of the said bond. Sworn, ',':. our ' 56. To prove debt for goods sold and delivered. (Style of cause.) ' * 1. R. S. late of , in the County of , the intes- tate in this cause named, was in his life time, and at the time of liia death, and his estate still is justly and truly indebted to me in the sum of , for goods sold and delivered by me to the said R. S. in his lifetime, and for the prices marked and set forth in the paper writing hereunto annexed marked A, 2. The prices therein charged are fair and reasonable, and such as are usual or customary in the same trade or business. 3. I have not, nor hath or have any other person or persons by my order or to my knowledge or belief for my use received the said sum of or any part thereof, or any security or satis- faction for the same or for any part thereof, but the whole of the said sum of still remains justly du'> and owing to me upon the account aforesaid. Sworn &c. 57. To prove mortyage debt. (Style of cause.) 1. Under and by virtue of an indenture hearing date « when the names of the persons from whom, and on what account the same has been received, and also a like account of the disbursements, allowances, and payments made by us, or any or either of us in respect of or on account of the said testator's funeral expenses, debts and personal estate, together with the times when, the names of the persons to whom, and the purposes for which, the same were disbursed, allowed, or paid. 5. And we each speaking positively for himself, and to the best of his knowledge and belief as to other persons, further say, that save and except as appears in the said account marked A, we have not, nor hath any or either of us, nor have nor hatli any other person or persons by our or any or either of our order, or for our of any or either of our use, possessed, received or got in any part of hi i 1 • I! I -.! ; . r .! : I m ATPSSTDIX or FORMS. the said testators' personal estate, nor any money in respect thereof^ and that the said account marked A. does not contain any item of disbursement, allowance, or payment, other than such as has actually been disbursed, allowed or paid on the account aforesaid. 6. We further say, that to the best of our knowledge, informa- tion and belief, the personal estate of the said testator now ( ut- standing or undispooed of consists of the particulars set forth in tha second schedule hereunder written. 7. Save what is set forth in the said second schedxile there is not^ to the best of our knowledge, information or belief, any part of the aaid testator's personal estate now outstanding or undisposed of. Sworn &G. .-i The first schedule above referred to. £25 cash in the house. £110 in the Bank of Toronto. £80 debt due from R. O'Brien. £80 promissory note of John Smith. £400 due from B. Moore on bond. £22 10s. debt due from David Kerr. ,r^. The second schedule above referred to (set out particulars in tame manner as above.) [For aeeount tte oppoiit* page."} . s, i V ■ %• •• \S I , / t'i-: 'h im I I \ / eoty 1 of has d. ma- (iit- 1 tho not, : the irs in \> ■I CO APPBKDTZ OF FOHMS. e a cq © o © © o 1 .a 1 o }Z5 I C4 CO © 1 I s I CO © ft 1 905 i ^ o I t-3 © ■» 4> til IS O ft M a ft <5 • ft O 00 iH 1 »* '* O ■8 t-J t-s O lO !t.i ■t ■'I * -i ! ■ 306 APPENDIX OF FORMS. t-\ 23K;:: ''^ i ^r GO. Verifying account of Heal Estate. (Style of cause, dv.) 1. Wo have, according to the best of our knowledge, remem- brance and belief, so*: forth in the schedule hereunder written, the particiil.'us of all the real estate which the testator in the decree, dated &c., made in this cause named or referred to, and who died on the day of was seised of or entitled to at the date of his will and at the time of his death. 2. Save wliat is said forth in the said schedule the testator was not to the best of our knowledge, information or belief, at the date of his will or at the time of his death seised of or entitled to any real estate in possession, remainder or reversion absolutely, contin- gently or otherwise howsoever. 3. We have according to the best of our knowledge, information and belief, set forth in the schedide hereunder written, the particu- lars of all the incumbrances aflxjcting the said testator's re.al estate and what part thereof such incumbrances respectively affect. 4. We have in the accoimt marked B., now produced and shown to us, according to the best of our knowledge, information and be- lief, sot forth a full, true and particular account of all the rents and profits of the said testator's real estate which have come to our hands or to the hands of any or cither of us, or to the hands of any person or i)orsons by our or any or either of our order, or for our or any or either of our use, and the times when, the names of the per- sons from whom, on what account, in respect of what part of such estate the same have been received, and the times when the same be- came due, and also a like account of the disbursements, allowances, and payments made by us or any or either of us in respect of the said testator's real e-tate, or the rents and profits thereof, and the times when, the names of the persons to whom, and the purposes for which the same were made. 5. We each speaking jjositively for himself, and to the best of his knowledge and belief as to other persons, say ^hat save and except appears in the said account marked B. , we have not or hath any or either of us, nor hath nor have any other person or persons by our or any ur either of our order or for our or any or either of our use, possessed, received or got in any rents or profits of the said testa, tor's real estate nor any money in respect thereof, and that the said accoinit marked B. does not contain any item of disbursement, payment or allowance other than such as has actually been disbursed, paid or allowed as above stated. Sworn &c. ^ II V V APPENDIX OF t^ORMS. 307 61. Verifijintj Receiver*s Accuunt. -of tho Receiver uppointeil in this cuuso make oath and say 1. I say that the account now produced and shown to me marked with the lettur A., purporting to be my account of (the rcnt» and profits of the real estate and of the ovtstaiuliiuj personal estate of A. B. the testator in this ca^ise) from the day of 186 ' to the day of 180 . both inclusive, contains a true account of all and every sum and sums of money received by me or by any other person or persons by my order, or to my knowledge and belief to my use, on account or in respect of (the said rents and profits accrued due on or hrfore the said last mentioned day or on acconyit or inrespect of the 2ie-rsonal estate) other than and except whit is included as received in my former accounts sworn to by niu. 2. Tho several suras mentioned in the said accoimt hereby veri- fied to have been paid and allowed, have been actually and truly so paid and allowed in the manner and for the purposes specified in the said accoxint. 3. And 1 say that to the best of my knowledge and belief, the said account is just and true in all and every the items and par- ticulars therein contained. 62. Of publication of advertisement. (Style of cause, dx. ) 1. The advertisement hereunto annexed marked A., appeared in tho issues of the newspaper called the Globe published in tho City of Toronto of the days of the month of last and of the days of the present month, being once in each week of the four weeks preceding the day of . (If the affidavit is made by the printer and publisher (this adver- tisement ought to be preceded by a claiise stating that fact) if by another person by a clause stating that lie has searched the files of the paper. ) 63. Of Auctioneer — sale under decree. (Style of cause, dbc.) 1. At the time and place mentioned and under the conditions of sale specified in the annexed particulars and conditions of sale in this cause, I offered for sale by public auction the lands and pre- mises described in the said annexed particulars of sale. f^^m AiVBNDIX 09 F<»M». 2. At the said sale, J. A. bid for the said Ifuids ti^j ^am of- and being the highest bidder therefor, became and was declared to be the purchaser thereof at the price or sum of . 3. The said sale was conducted by me in a fair open and candid spanner and according to the best of my skill and judgment. 4. The paper hereunto annexed marked exhibit B. is the contract of s«^e signed by the said J. A> 64. For Chmrd^an. 1 . I knew the late J. U. of the city of Toronto, carpenter, in the bill of complaint in this cause named. 2. The said J. U. departed this life some time in the month of — , 186 — , leaving him surviving the above named defendant M. U., his widow, and the defendants J. U., L. U., and S. U., his children and heirs-at-law. 3. The said J. U. , L. U. , and S. U. , are all infants within the age of 21 years, and of the ages of six, four, and one years respectively, and are at present residing with and under the care of theL' mother, the said defendant M. U. at . 65. For Commission. 1. I am the plaintiff in this cause. 2. A. B. now residing at the city of Glasgow in that part of the United Kingdom of Great Britain and Ireland called Scotland, is a necessary and material witness for me in this cause, and it would be unsafe for me to go down to hearing without his evidence. 3. This application for a commission to take the evidence of the said A. B. is made in good faith and not for the purpose of delay. H n 1. C. D. of 66. For Writ of Arrest is justly and truly indebted to me in the sum of (at least $100) for (state shortly upon what the equitable claim is founded. 2. I believe the said C. D. intends to quit Upper Canada with in- tent to defraud me in the said just debt, and I ground my said be- lief on the following facts (here state shortly all the facts in the ap- *pUcant's knowledge justifying the application). 8. No action at law nor any snii; in this honourabla court has been brought or instituted for the recovery of the said debt. 7 n i APPENDIX OF FOAMS. M^ 67. Of plaintiff for final order of Foreclosure. L I have not nor hath nor have any person or persons by my order, or to the best of my knowledge, information and belief for my ute, received the sum of , being the amount found due to me by the report of the master at in this cause, oi* any part thereof, or any security or satisfaction for the same or for any part thereof, but the whole of the sum of $ remains justly due and owing to me imder the mortgage security in question in this cause. 2. I am not now, and since the date of the said mortgage, never have been, nor hath nor have any person or persons by my order at for my use, been in possession of the lands and premises comprised in the said mortgage, or of any part thereof, nor in receipt of the rents, issues and profits of the same or of any part thereof. 1. On the 68. Of Execution. day of I was present and did see A. B., manager of the Branch or Agency of the Bi»n the certificate hereunto annexed at - - Bank at , -, in the county of 2. The name "A. B." subscribed thereto is the proper hand writ- ting of the said A. B., and the name " C. D." subscribed as witness is my handwriting. ,' ■ , ' ■ ' • ^ '''< 69. Of justification by sureties. We, A. B. of the City of Toronto, in tlie County of York, hotel- keeper, and C. D. of the same place, accountant, severally make oath and say : — 1. And first, I, the said A. B. , for myself say that I am worth the sum of £ after all my debts are paid. 2. And I, the said C. D. , for myself say that I am worth the sum of £ after all my debts are paid. VIII. — Jurats. 7^. To Answer. The defendant C. D., on the day of A.D. -, in the County of ■ appeared before me at my chambers in — and signed the foregoing answer in my presence, and thereupon was sworn before me that he had read the said answer and knew the contents thereof, and that the same was true of his own knowledee^ except as to matters which are therein stated to be upon his infor- mation and belief, and as to those matters he believed it to be true. •!;.i .''f? h' P» " !i I 310 r APPENDIX OF FORMS. 71. To Answer, in the case of an illiterate person. The defendant C. D. not being able to read or write, E. F., soli- citor (or clerk to the solicitor) for the said defendant, was sworn be- fore mo at my chambers in , in the County of , on the ■ day of , A. D. , that he had truly and faithfully read the contents of this answer to the said C. D. , and that he ap- peared perfectly to understand the same ; and the said C. D. was thereupon sworn that he heard the said answer subscribed by him with his mark read over to him by the said E. F. , and that he knew the contents thereof, and that the same was true of his own know- ledge, except as to matters which are therein stated to be on his in- formation, and as to those matters he believed it to be true. 72. To affidavit. Sworn before me at , in the county of ■ , on the day of , having been first read over to the deponent C. D. whom I informed that he was liable to cross-examination as to its contents, and at liberty to add to or vary the same. 73. To affidavit in case of illiterate person. Sworn before me at in the County of on the — ^ — day of , having been first read over to the deponent C. D. who seemed perfectly to understand the same, and who made his mark thereto in my presence, and whom I informed that ha was liable to cross-examination as to its contents and at liberty to add to or vary the same. . 74. Short form of Jurat. Sworn before me at , in the county of day of A. D. on the IX. — Notices of Motion. , 75. For Decree. In Chancery, Between A. B Plaintiff. \ i i :' , and C. D '. Defendant. Take notice that this honourable court will be moved on behalf of the plaintiff on , the day of , at ten o'clock in the forenoon, or so soon thereafter as Counsel can be heard for a decree or decretal order, in accordance with the prayer of the plaintiff's bill, or that such other decree or order may be made as to. I APPENDIX OF FORMS. 311 this honourable court shall seem meet. And take notice that in support of such motion will be read the plaiutiflf'a bill, (the answer of the said defendant, or such part thereof as the plaintiif shall be advised to read) and the affidavits mentioned below, this day filed, and the exhibits therein referred to. Dated this daj of , 1861. To Yours, (fee, E.P., X. Y., Deft's Sol. Plffs Sol The following affidavits will be read : Affidavit of ;,^.* Y , Affidavit of i' .ii the 76, For Injunction. '--' (Style of cause. ) Take notice (Style of cause.) Take notice, (as in No. 75) for an order that one of the solicitors of this honourable court may be assigned as guardian to the above named defendant C. D., by whom he may answer the plaintifiTs bill of complaint, and defend this suit. And take notice that upon such motion will be read the plaintiff's bill of complaint and affidavit of service thereof, and the affidavits of A. B. and C. D. tliis day filed. Dated, <&c. , n An^iTDix or Fosnn. S18 82. To diitnisa for toant of proaecutwi^. (Style of cause.) T»ke notice, (as in No. 75) on behalf of the defendant E. F., for «n order that the plaintiff's bill may be diunissed out of thk court, as against the above defendant E. F., for want of prosecution, witli eosts to be taxed by the master of this court. And take notice that upon such motion will be read the notice of filing the answer of the said defendant, an admission of the s^moe thereof, and the registrar's certificate of the state of the cause. Dated, &c. 83. For leave to amend, (Style of cause.) *? Take notice, &c., (as in No. 75) for an order that the plaintiff may be at liberty to amend his bill of complaint in this cause by (set out proposed amendments or refer to them as annexed. ) And take notice that Vipon and in support of such motion will be read the bill of complaint in this cause, the proposed amendment and the affidavit of A. B. this day filed. Dated, «fec. 84. For a commission to examine ivitnesses. (Style of cause.) Take notice (as in No. 75) on behalf of the plaintiff, for an order that a commission may issue in this cause for the examination of A. B. and C. D. at in , as witnesses in this cause on behalf of the above named plaintiff. And take notice that in support of such motion will be read the affidavits of E. F. and G. H., this day filed. Dated, &c. k!i.ii; ili 85. For leave to examine de bene esse. (Style of cause.) Take notice, (as in No. 75) on behalf of the plaintiff', for an order for the examination de bene esse of A. B. of , as witness in this cause, on the ground that he is a material and necessary wit- ness for the , and that he is about to leave the Province, (or over 70 years of age.) And take notice that in support of such motion will be read the affidavit of 0. D. and E. F. this day filed. Dated, (Style of cause.) v > *'' . Take notice &c. , (as in No. 76), for an order that tho defendant C. D. may deliver up possession of the lands and premises in question in this cause, being '■ :* I hereby appoint — — — the day to proceed (^ie nature of business for which appointment was made) when all parties are to attend at chambers in Osgoode Hall, in the City of Toronto, at the hour of . (Signature of Judge. ) Note. — If you do not attend either in person or by your solicitor, at the time and place above mentioned, such order will be made and proceedings taken in your absence, as the judge may think just and expedient. G. H. Solicitor for — — . 94. Special Examiner's or Deputy Master's appointment for exami- nation of witnesses. (Short style of cause. ) I hereby appoint the day of - , at the hour of , for the examination of witnesses herein at my office in . Dated &c. i^ \ dA. BL I hereby appoint AYPBKDIX OF FORBSSi. 95. To setUe minutes. (Short style of cause. ) the day of ■ sn to settle the minutes of decree in this cause at my office in Osgoode Hall, Dated (be, I hereby appoint 96. To pass Decree. (Short style of cause. ) the day of to paas the da^ cree in this cause at my office in Osgoode Hall. Dated, &c. ■ ^ ■ 97. Masker's Warrant, , '. (Shoti style of cause..) By virtue of an Order of Reference, I do appoint to consider of the matters thereby fco me referred, on next, at of the cluck in the noon, at my Chambers in , at which time and place all parties concerned are to attend. Dated the day of , A. D. 186—. « , ■( 98. Master's general Warrant. (Skoit style of cause.} By virtnc of an order or decree of reference, I do appoint the geveral days and times hereimder written for the several purposes also hereunder written, at my chambers in , at which time and place all parties concerned are to attend. Dated the ■ day of A. D. •; 'J, 99. Master^ 3 notice, A. (Style of cause. ) Whereas a suit haa been instituted by the within named com- plainant for the foreclosure (or .tcde) of certain lands, being (insert description of lands) and I have been directed to enquire whether any other person other than the plaintiff, has any charge, lien, or incumbrance upon the said estate. And whereas it has been made to appear before me that you have each some lien, charge, or incum- brance upon the said estate, and I have therefore caused you each to be made a party to this suit, and appointed the day of , at o'clock in the noon, for you to appear before me, either in person or by your solicitor, to prove your claims; i^ii': m tMi' S18 APPE.N'DIX OF FORMS. ^^ Now you are hereby required to take notice : 1st. That if you wish to apply to discharge luy order making you a party, or to add to or vary the within decree, you must do so within fourteen days from the service hereof ; and if you fail to do so, you will be bound by the decree nnd the fnr.her proceedings in this cause as if you wore originally mad ;. party to the suit. 2nd. That if you fail to attend at my chambers at , in , at the time appointed. you will be treated as disclaiming all interest in the property in question, and it will be disposed of in the same way as if you had no claim thereon, and your claim will be in fact foreclosed by such non- attendance. Master. To . 100. Master* s notice, B. ( Style of cause. ) f^ ^^. Having been directed by the decree in this cause, to enquire whether any person other than the plaintiff has any lien, charge, or incumbrance upon the lands in the pleadings mentioned, being (insert description of land.) I do hereby appoint the day of next, at chambers at o'clock, in the noon, at my in , to proceed with the said enquiries. And you are hereby required to take notice : That if you fail to attend at the time and place appointed, you will be treated as disclaiming all interest in the land in question, and it will be dealt with as if you had no claim thereon, and your claim will be in fact foreclosed. , , -, ^, .. (Signed) ''^ Master. 101. Bond on appeal to Court of Error and Appeal — Given in Orders. ' Know all men by these presents that we, A. B. of , C. D. of , and E. F. of , are jointly and severally held and firmly bound unto G. H. of , in the penal sum of .aw- ful money of Canac'a, for which payment well and truly to be made, we bind ourselves, and each of us by himself, oiir, and each of our heirs, executors and administrators respectively, firmly by these presents. '/ . • , •< . .,*- Witness our hands and seals respectively, the day of , in the year of our Lord . Whereas the (appellant) alleges and complains that in the giving of judgment in a certain suit in Her Majesty's Court of Queen's 'W APPENDIX OF FORMS. 319 Bench (or the Court of Common Pleas, as the case may be), in Upper Canada, betvejTi (the reapondent) and (the appellant) in a plea of , manifest error hath intervened, wherefore the said (appellant) desires to appeal from the sjvid judgment to the Court of Error and Appeal. Now the condition of this obligation is such, that if the said (ap- pellant) do and shall etfectually prosecute such appeal, and pay such costs and damages as shall be awarded, in caso tho judgment afore- said to be appealed from shall be attlrined or in part affirmed, then this obligation shall be void, otherwise it shall remain in full force. Signed, sealed and delivered in the presence of .♦i 102. Affidavit of justification — Form given in Orders. In the (style of court), , A. B., Plaintiff. '■m: vs. C. D., Defendant. E. F. of , and G. H. of , severally make oath and say:— 1st. Tliis deponent E. F. for himself saith, that he is a resident inhabitant of Upper Canada, and is a householder in (or a freeholder in), , and that he is worth the sum of (the sum in which ho stands bound by the penalty) over and above what will pay all his debts. 2nd. And the deponent €r. H. , for himself saith, that he is a resi- dent inhabitant of Upper Canada, and is a householder in (or free- holder in), , and that he is worth the siim of (as the case may be) over and above what will pay all his debts. Sworn by the above named deponents, ) (Signed) E. F. tjt this day of before me. ) G. H, X. Y., A Commissioner, ^ 1 1 ^ tS d II . ^s rH ^1 i*-i H M S505 M 1 H « as4 ▲BPsarDix ov. rosMii. V. / ■g 1 ■■.-.., ■» . II st ■ ^o. n § -i -i f pen hom •llow >?", ' 1 1 •9 si |& 1^1 4a g o 1 . g ■» ^ ft <§ % a,g 4>43 1^ 1 |ii t ^» above named plaintiff.) o mi *»w^'' '*-■ , •-^• i ':^,r^ ' ■ if*-**' ! > i if^ '^ , ^^^ '■' |- 110. Endorsement on office copy Bill for foreclosure or sale. "notice to the defendant within named. ** Your answer is to be filed at the ofiice of the registrar. at in the of You are to answer or demur within weeks from the service hereof. " If you fail to answer or demur within the time above limited, you are to be subject to have a decrae or order made against you forthwith thereafter ; and if this notice is served upon you person- ally, you will not be entitled to any further notice of the future proceedings in the cause. " Note. — This bill is filed by , of , in the county of solicitors for the above named plaintift'. " And take notice, that the plaintiff claims that there is now due by you, for principal money and interest, the sum of — — — , and that you are liable to be charged with this sum, with subsequent interest and costs, in and by the decree to be drawn up ; and that in default of payment thereof within six calendar mouths from the time of drawing up the decree, your interest in the property may be foreclosed (or sold) unless, before the time allowed you as by this notice for answering, you file in the office above named, a memor- andum in writing, signed by yourself or your solicitor to the fol- lowing effect : • dispute the amount claimed by the plaintiff in this cause, in which case you will be notified of the time fixed for settling the amount due by you, at least four days before the time to be BO fixed." 111. Endorsement on order directing publication of advertisement tr^:^..- for absent defendant. • ' « C. D. , take notice that if you do not answer or demur to the bUl pursuant to the above order, the plaintiff may obtain an order to take the bill as confessed against you, and the court may grant the plaintiff such relief as he may be entitled to on his own shewing, lM( APPENDIX OF FORMS. 827 and you will not receive any further notice of the future proceed- ings in the cause. To Mr. directed. 112. Endorsement on office copy decree. , the person upon whom service has been (Set out the order.) If you w ■- ih to apply to discharge the foregoing order, or to add to or vary tJie decree, you must do so within fourteen days from the service hereof. (When the order fixes a time for the further proceedings, add) And if you fail to attend at the time and place appointed, either in person or by your solicitor, such order will be made and proceedings taken in yo\ir absence, as the judge may think just and expedient ; and you will be bound by the decree and the further proceedings in the cause in the same manner as if you had been originally made a party to the suit, without any further notice. . . .., .. ,,. 113. Endorsement on answer. This answer is filed by Messrs. A. B. and C. D., of the city of Toronto, in the county of York, solicitors for the above named de- fendants, (and where the party who tilec! the answer is agent, say, agents of Messrs. E. F. and G. H., of , solicitors for tho above named defendants.) 114. Conditions of sale. 1st. No person shall advance less than £2 at anv bidding under £100, nor less than £5 at any bidding over £] 00 ; and no person shall retract hie bidding. 2nd. The highest bidder shall be the purchaser ; and if any dis- pute arise as to the last or highest bidder, the property shall be put up at a former bidding. 3rd. The parties to the suit, with the excaption of the vendor, are to be at liberty to bid. 4th. The purchaser shall, at the time of sale, pay down a deposit in the proportion of £10 for every £100 of his purchase money to the vendor or his solicitors, and shall pay the remainder of the purchase money on the — ■■— day of ■ next ; and upon such payment, the purchaser shall be entitled to the conveyance, and to be let into possession ; the purchaser, at the time of such sale, to sign an agreement for the completion of the purchase. 5th. The purchaser shall have the conveyance prepared at his own expense, and tender the same for execution. I'W ! ;! :;V ^ S£8 APPflNDIX OF FORMS. M i Smi 6th. If the purchaser shall fail to comply with the conditions aforesaid, or any of them, the deposit and all other payments made thereon shall be forfeited, and the premises may be re-spld, and the deficiency, if any, by such re-sale, together with all charges attend- ing the same or occasioned by the defatdter, shall be made gbod by the defaulter. [These are the staDding conditions provided by the Court : but thoy ure subject to modification when settling the conditions of sale before the master, upon sufficient reason therefor being shewn.] 115. Decree directing accounts. The court doth order that the following accounts and enquizies be taken and made, that is to say : 1st. An account of the personal estate not specifically bequeathed of A. B. deceased, the testator in the pleadings mentioned, coma to the hand of, &c. ; 2nd. An accoimt of the said testator's debte. 3rd. An account of the said testator's funeral expenses. 4th. An account of the said testator's legacies. 5th. An enquiry, what parts, if any, of the said testator's per- sonal estate are outstanding or undisposed of. And it is ordered that the said testator's personal estate, not' specifically bequeathed, be applied in payment of his debts and funeral expenses in a due course of administration, and then, in payment of his legacies. And it is ordered that the following further accounts and enquir* ies be taken and made, that is to say : 6th. An enquiry what real estate the ;:>aid testator was seised of or entitled to at the time of his death. 7th. An enquiry what incumbrances afiect the testator's real estate. 8th. An account of the rents and profits of the said testator's real estate received by, &:c. And it is ordered that the said testator's real estate be sold. And it is ordered that the further consideration of this case be ad- journed, and any of the parties are to be at liberty to apply. * • 116. J cceptance of service of bill by solicitor. i " 1 (Full style of cause.) ^'i- In Chancery. ! hereby accept service of an office copy of the bill of complaint in this cause, with the usual notices for — — — endorsed thereon as A9PBNDIZ OF FOMCS. 329 solicitor for the dofendant A. B., and I undertake to answer or demur thereto, within the time limited in the said endorsement, or in default of my so doing that the plaintiff may proceed to take the bill pro eonfeato, (or obtain a decree^ against the said A. B. without further notice. Dated, ••I f,r*- 330 APPENDIX OF FORMS. Lot No. 1. Lot No. 2 Correct descriptions of the property, stating in each case the nature of the premises, whether wild land or otherwise. State whether lands sold subject to any incumbrance, whethor title deeds will be produced, or any point in which the conditions of sale dififers from the standing conditions of the court. (In other respects) the conditions of sale are the standing condi- tions of the Court of Chancery. Particulars may be had at the offices of the master, &c. 120. Bank manager^s certificate of non-payment of money. (Style of cause.) In Chancery. I , manager of the branch (or agency) of the bank of — — — , at , do hereby certify that no sum of money was on the day of , or before or since that day paid into this bank to the joint credit of , and of the registrar of this court, or to the credit of the said alone, by ■ or by one one on his behalf. Dated, &c. » Affidavits of the witness and the plaintiff to support the certifi- cate given an, ;■» r'r::-r,., „,; , . ;;; (Style of cause.) ■/: ^ .;.:•.{, • In Chancery. 4^ • -'. ;-i"'/v This is the account marked A. referred to in the affidavit of , sworn the ■ day of — — — , before me, G. H.) a com- missioner, . ; attending to file original, la. 8d Paid 4d. PlaintifiTs affidavit of non-payment, 8 folios, 8s. Attending to swear, Is. 8d. ; paid Is. 8d. Baulc Manager's certificate, 28. Attending execution, Is. 8 J. ; affidavit of. Is. 8d. ' Execution 2 fols. Is. ; oatb Is. 2d. Attending to move for final order, 6b. Attending registrar. Is Sd.; attending for. Is. 3d. ; paid 3s. 4. Fee on, Ss. ; attending to bespeak, 6s. Certificate, Is. Sd. ; paid 6s. £18 1 In cases where the registrar of deed's certificate would be unneoefl'iurily long and expensive, the master will receive an abstract prepared by the solicitor, accompanied by his affidavit, stating the probable length aud ex- pense of the registrar's abstract, the unnecessary nature of a great part of its contents, that be has searched in the registrar's books, and the abstract exhibited to him contains a full and true statement of all the entries affecting the lot in question. In chancery only one bill of costs is allowed, this is filed on obtaining the warrant to tax, the opposite party inspects the copy filed, or if he desires a oopy obtains it from the master. A commissioner is entitled to Is. for every oath, Id. per folio for reading over every affidavit except answers, and Is. for every exhibit marked. On going into the master's office the plaintiff brings in the decree and oopy, registrar of deeds abstract, and the sheriff's certificate as to writs of execution in his bands. The master compares the oopy with the decree and files the former. If, as is assumed in the above bill, there are no sub- sequent incumbrances or writs of execution in the sheriff's hands, the master issues his warrant, " to hear and determine, tax costs and settle report,** which is served on the defendant. On the return day the plain- tiff's solicitor brings in the plaintiff's affidavit, page 801, his account, page 880, and bill of costs. The master finds what is due on the mort- gage at that date, computes interest for six calendar monttis in advance, taxes the plaintiff's costs as far as the line, adds the sums of Tnoney together, and in his report, appoints the defendant to pay the amouut at some bank fixed by the plaintiff, and approved by him according to order LXXIV. page 206. On default the plaintiff makes his affidavit, p. 809, on pimluction of which, the bank manager's certificate p. 880, with affidavit of execution p. 809 annexed, decree and copy of the master's report, (the original having been filed and confirmed under order LXXIX. p. 210,) in chambers, the final order is granted. It ought to be noted that in foreclosure luits, an abstract of ineombranees APPENDIX OF PORMS. 598 aubtequent to tb« plaintiff's mortgage is only required, but in thoae for a sale the master eaquires as to all incumbrances affecting the property. After no order for sale is obtained the plaintiff brings in his draft adver- tisement, for outline see form on page 829, takes out a warrant to settle advertisement and proceeds according to the directions fully laid down in the orders regarding sale. After sale the vendor obtains the master's warrant " to settle report on sale," and on the return brings in afSdavit of publioatioD, p. 307, an affidavit of duly sticking up posters where they have been ordered, the auctioneer's affidavit, p. 807, and an affidavit of the signature by the purchaser of the contract, p. 212, The master's report is filed and confirmed in the usual way. If the purchaser demands it, au abstract ha!- to be furnished. It would overetep the limits of this work to attempt to give anything like a clear idea of the "intents of the abstract and requisitions, the author feels that any short statement would only mis- lead and would refer to Sugden «b Dart's works on vendors and purchasera. After the report is confirmed the vendor moves upon notice to the purchaser as well as the parties to the suit, to have the purchase money paid out of court, page 316. If default is made in payment by purchaser, the vendor movei for re-sale — page 816. Id the following bills the charges are not carried out. as a great many of the items depend upon the length of the pleading, and are only given as specimens bi the proper charges in such a suit. 123. Fktintij^'s cottiy, bill pro confesso agaitifttwo defendants, cmd parties added in master's office. Instructions IDs. ; letters of notice. 6s. Draft bill, 208. ; atteading counsel with and for, 2s. 6d.; paid IDs. Copy to file 24 fols. 128. Attending to file, Is. 8d. ; paid 168. 2 copies to serve, 208. Aitending examining, Is. 8d. r paid 4s. Attending for two certificates. Is. 3d.; paid 7s. 6d. 2 common endorsements, 4s. Attending to serve A. Is. 8d ; affidavit 28. . '. Attending to stamp, Is. 8d.; oath, Is. Affidavit for B. 2s. ; letters to sheriff Wentworth with, 2s. 6d.; post Is. 6d. Received letter from sheriff post, 4d. Fees 9s. 9d. ; post and registration of letters with, 4d. Attending to bespeak and for order pro con against A., 2s. 6d. ; paid 3s. 4d. Attending to bespeak and for order pro eon against B-, 28. 6d. ; paid 3s. 4d. Precipe and attending to set down, Is. 8d. ; paid 23. 6d. . Instructions for brief, 6s.; brief 24 fols. 12s. Attending counsel with and lor, 2s. /- ll. ■ I 4 •<::: *iftirtiii^ t ■* if 50 ? Attending to searob for avv'^wer of mother, Is. Si.; paid Is. Attending for order pro ouufesso, 1b. 3d.; paid Ss. 4d. ; fee Ss. Draft affi'iaTJt of H 3 iblB. Ss. ; engrosaing, la. 6d. Attending to swear, la. ^d.; oath and exhibit, 28. Draft affid ivii of S 3 fuls. Sa. ; eugrosaini^, 28. Drttft affidavit of plaintiff, 4 foh. 48. ; «ngro33iDg 28. Attending to swear, la. 3d. ; oath, is. Instructions for brief, os. Brief, 23 fois. Ua, 6d. Attending setting down, Is. 3d.; paiJ lOa. .1 Attendin>^ filing 8 aiRdavits, la. 3d. ; paid Is. \ ^ ■■'■'*! Notice of motiun for decree copy and aervi -e, 28. 9d. Having recived demand of affidavit filed copy of plaintiflf's affidavit, 2b. Copy of affidavit, Is. 6d. Copy of affi lavit, Is. 6d. ; attending serving, Is. 3d. Attending counsel. Is. Sd. • . Fee on hearing, 703.; attending registrar, la. 8d. Draft minutes, 2s. , < • Notice to settle copy and service, 28. 9d. Attending settling minutes, 63, : . t Attending for appointment to pass, la. 3d. Copy, 6d. ; atten ling to serve, la 3d. Attending passing decree, 5s. .V., ..... Attending for decree. Is. 3d. ; paid 148.; fee, 58. Attending bes. certificate of iucuinbrauces. Is. Sd, Attending for, Is. 8d. ; paid 8j. 9d. Attending Hheriff bes. certificate of writs, Is. 3d. Paid for certificate of writs as to mother, 8a. 6d. Attending for, la. 3d. ; paid 38. Copy ot decree for master, 28. 6d. Attending considering, 68. Attending for warrant, Is. 3d. Copy and Si-rvice of warrrant Is. 9d. ' Attending hearing and determining, 6s. Atten ling settling renort, 68. , Atiendinij for report, Is 8d. ' Taxing infant's costs, 5s. Bill of costs, 5s. Paid maater't '.\-.e», £1 128. lid. Paid infant's costs. \ 126. Plaintiff ^s ct tts for not proceeding to examination and hearing. Attending to set tlown Is. 3d. ; paid. Noiice of examination and hearing, copy and service 28. 9d. Attending for aub^ounu la. 8d. ; paid 5s. Copies Is. each, ; ■\ IRflKRF APPKNDix' of' viiiLii^. S9T Instructions for brief Ss. ; brief fola. Attending counsel with Is. 3d. : paid bia fee. Paid wiliiess fees. Attending for order to tax costs Is. 3d. Paid 38. : fee ou 5s. Copy for master Is. Bill of costs 59. Copy warrant 6d. ; attending to serve Is. 3d. Attending to bes. certificate Is. 3d. Paid master. 127. Costs of the day at a hearing or a court motion are, in ordinary cases, £2 10s. The writ of subpcBoa hju been decided by the taxing officers, to stand on a different footing to the other writs and orders of court, and they refuse to tax a fee on them to the solicitor, notwitiistaciding the order. The court seems to countenance this view, by allowing the sheriff a fee of 28. 6d. on '^'c return of all process and writs, except t^ubpoeuas. 128. Defendant's costs. — Bill dismissed for want of prosecution. Instructions, lOs ; draft answer, 16 fols. 168. Attending counsel with and for, 2s. 6d. ; piiid 10s. Engrossing answer, 78 6d.; atteadiug defendant, reading over 5i. ^ Attending to swear. Is. 8d. ;^. Pad Is ; attending to file, Is. 3d. ; paid Ss. Notice of filing copy and service, 28. 9d. Having received demand, copy auMwer, 6s. 3d. Attending to make offine copy, la. 3d. ; paid Is 3d. Attending to fci ve. Is 3d. Draft notice of motion to dismiss, 2s. Copy, Is. ; attending to serve. Is. 3d. Attending to bespeak acd for certificate, 2s. 6d. ; paid 28. 6d. Attending in chambers, 5s. ; ntteudini^ regislrai, Is. 3d. Attending for order. Is. 3d.; paid Is. 6d.; IVe, 5.S. Copy (or- inastei, ed. Bill of costs, 58. Attending for uppoininient, Is. 3d. ; paid Is. 3d.; copy, Od. Attentling to serve. Is. 3d. Paid master, 93. fid. Attending to bespeak and for certificate, Is. 3d. 129. Infant defendants costs. Instructions lOs. Having received order appointing guardian, demand of office copy bill copy and servjce, 2e. 9d. Letter to infants mother 28. 6d. il Ml 'm ml 338 APPENDIX OF FORMb. ^V- 'J f Drawing answer 3s. Attending counsel 2s. 6d. ; fee 10s. Engrossing answer 1b. 6d. Drawing consent to file without oath or signature, Is. ; Atg. Is. 3df. Attending filing Is. Sd. ; paid 8i3. Notice of filing copy and service, 28. 9d. Engrossing office copy Is. 4d. Attending examining Is. 3d. ; paid 2d.; serving la. 8d. Having received notice of motion fur decree, attending to search if af- fidavits filed Is. 3d. ; paid Is. Instructions for brief 5s. Brief 98. ,. ' Copy of affidavits 6d. Attending cuuusel with brief Is. 8d. ; fee SOs. Attending settling minutes 58. ... Attending pasaiiig decree 5s. Attending at masters office heaiing and dutermiuiug, 5b. Attending on taxn and Attending to file Is. 3d. ; paid Ss. Having received demand, drawing copy 28. 6d. Attending to examine Is. 3(J. ; paid 6d. Attending to serve la. 3d. Attending to bespeak and for order to produce 28. 6d. Paid 38. ; fee 5 ; copy la. Attending to serve la. 8d. After production, nof'.ce of examining papers, copy and service Ss. da. Attending examinirig 5s. Attending counsel with and for papers, to advise on evidence 23. 6d. Paid fee 26b. Attend ini; for subpoena Is. 3. Paid 5s, Copy 28. ; attending to serve Is. 3d. Instructions for brief 5s. Brief for 1st counsel 30 folio 16s. Brief for 2ud counsel 1 09. ' Attending senior counsel with brief Is. 3d. • ' "' " Paid his fee. Attending junior counsel with brief Is, 3d; paid his fee Attending registrar with exhibits Is. 3d. Schedule of 2 folios Is. ; copy 6d. ■ • .: ■ -vi''- Attendiii!,' for judgment 5°. Attending registrar for exhibits la. 3d. .^: Attending for appointment to settle minutes Is. 3d. ,: ^ < Copy 6d. ; attending to serve Is. 3d. Attending for appointment to pass decree Is. 3d, „^ , Copy 6d. ; attending to serve 1 3. 3d. , i ,. Attending to pass 59. .... Attending for decree 1 9. 3d. paid. Fee on Ss. ; copy decree, folios Bill of costs 5b. Attending for warrant Is. 3d. ; copy 6d. Attending to serve Is. 3d. Paid witness fees. Paid master's fees. Atteuding for certificate of taxation Is. 3d. Hi '>y-.i i. 6d.; idering when 131. Costs of proving claim in master's office by party added. Instructions lO.s. Draft affidavit of defendant 5 folios 58. Copy 2s. rfd. Draft account and copy 3s. Attending to swear Is. 3d. Paid and marking exliibits 2s. 5d. Bill of costs 5a. '• ■■ ■mil y?' ■■■kt- I' I p 1- 340 APPENDIX OF FORMS. m- ^'m r^ Attending ia master's office hearing and determiciag, 6s. Attending to settle report 68_ Paid master's fees The Registrar has strictly, no right to allow a party to examine the papers proiiuced by the opposite side, unless he produces a notice of his intention to examine such papers at that hour with admission or affidavit of service. It is deemed unnecessary to furnish to the practitioner further forms of bills of cost. A glance at the foregoing forma will show that many of the items are mere repetition. But it Is to be noticed th:it while the skeleton of each bill is the same, almost every charge varies according as the SHits vary. In Common Law the prescribed tariff CDVers^ almost every case and printed forms of bills framed therefrom, are consequently in common use. In Chancery, however, every pleading depends for its length on the facts of the case, hence only the constantly recurring items can be noted in a form of a bill of cobts to the exclusion of the special charges of the suit which constitute the larger part of the bill. Nor has any attempt been made to give a form of bill between solicitor and client; to the tyro such a form, if given, would be no guide to the principle of the charges, he would only see some of the same items as in other bills repeated a little oftener. The judges have decided that bills between solicitor ard client are to ex- ceed as little as possible thoee between party and party f a retainer is to be taxed when actually paid, counsel fees of the same amount as paid, and necessary letters and disbursements untaxable between parties. Costa between solicitor and client are allowed in infancy and lunacy matters, administration and partition suits, to next friends when the pro- ceedings are proper, and in oases where extraordinary circumstances war- rant in the opinion of the court, such adjudication of costs. In alimony suits, the wife gets her qohU between solicitor and client and that de die in diem upon application therefor, and the guardian ad litem as- signed to infant defendants always receives his costs. Costs are disallowed, in the discretion of the court, where there appears to be fair grounds for litigation on both sid«8, and the merits of the case are doubtful ; also in cases where the court considers one party entitled to succeed, but is yet constrained owing to some technical rule to give judg- ment against him. No costs) will be allowed to the plaintiff even when successful if he has charged, and failed to t rove fi .ad. ' ' "* ^ ' While these pages are passing through the press, two bills are before tlie Legislature, one cr the other, or peihape, both of which will in all pro- bability inateriaPy effect the subject of costs, and this fact affords a reason for witbholdiug a larger supply of forms in this place. The design of the bill introduced by Solicitor General Wilson, is to make all court fees pay- I r ! >t\ Jmmuhhi APPENDIX OF FORMS. 341 able in stamps and to rf adjust the tariff by a slight increase of the fees, so that it may conform to the decimril system of th«i currency. Mr. Scatcherd'p bill aims at a general reduction of all eounscl fees and attorney's and solicitor's charges with a proportionate lowering of the fees payable to the different courts. Am matters stand, disbursements in chancery are twice as heavy, the amount o.* charges allowed by tariff one- half less, and the returns from clients as much more slowly realized, as suits in Equity are, of necessity, less expeditiously determined, than actions in Common Law Courts. But the mere loss of fees is the least evil ; too cheap law is one of the great- est Aurses that can afflict a countiy, and all expedience shows the wisdom of that maxim which hitherto has been the foundation of our system of jurisprudeDce. " Interest republicse ut sit finis litium." i! •■ I'M po- f-v*; •I 1 ■-.! ■ ;( mvit 342 INDEX. INDEX. Ire A. A — notice, when to be seryed and on whom, 197 ; form of 817. Abandoned— motion, 129. Abatemknt — amendment on, 218. • : No, in Court of Error and Appeal, 242, 243. " '^. Absent-— defendant proceedings against, 82, 57, 69, 222 ; order pro eon. against 1*1 1 form of notice to, 284. Absbnoe— judge may dispense with service on account of, 116. ABSCONOiNG^defendant, when service of bill on, dispensed with, 69, 60^ 205 ; advertisement for, 60 ; form of, 283. :,v :,;:.. affidavit for, 61 ; decree against, when absolute, 79, 80. Abbtbagt— of documents to be furnished to judge, 116 ; or maeler. 140. delivery of, 121 ; how proceeded on, 121; insufficiency of, 121; rule nm on, 121. ■ " proceeding on, in pro con. cases, 883. Aooeptanoe — of service of bill by solicitor, 57, 73, 75 ; form of 828. i • of master's appointment office copy decree, dec. 329. Access — of mother to children, 270. AocoDNTANTs — assistance of, by court, 114. Account— forms of bills for, 227, 228, 278, 279. AccoDWTS — how taken in Chambers, 116 ; in what form, 116 ; how verified* 116 ; notice to surcharge to be served, 117. proceedings on, in master's office, 137, 188, 139 ; in what form in mas. ter'B office, 140 ; how verified, 140 ; notice of surcharge, 140 ; form of account on mortgage debt for master's office, 820; of affidavit supporting, 801. when directed by decree to be numbered, 170 ; proceedings where state ol, chausrtd, 209 ; notic, on, 2C9. form of affidavit, verifying, of personal estate, 803 ; form of aCCOun^ 805 ; of affidavit verifying of real estate, 806. form of receiver's, 328, 324 ; affidavit verifyiug, 807. Actions — limitation of, 24, 26, 271, 272 ; cases decided on, 24, 26. at law, when stayed, 83. AcQUiEBOKNOfi— Oourt of Chancery to have jurisdiction whore, nothwith* standing statute, 272. ■■Pll INDEX. S4:: it- Addrrss — for service when necessary to be given, 167. of 8olicitor'<< apent to be entered in rcgibtrar'a book, 166; and deputjy regintiarV, 17ft. of bills, 55, 222. forms of, 273. AwoCBNMBNT — from court to obaiuhers, «t vice verna, 114. Administuation - decree. wiihout bill filed, 82 ; notice of motion for 82,83; length of notice, 82 •, on whom to be served, 82, 83 ; special dirt-ctions in decree, 83 ; in ciines of separ.ite applications, 83 ; evidence in, 88. when bill must be filed, 83, 84. how far executors chargeable, 83. action at law stayed on, 83. appointment of receiver and injunction ordered on, 83. executors may obtain, 84; in what cases generally grantt^d, 84. costs to be boine by estate, 84, 85; to what extent, 86. form of notice of motion for, 235, 816 ; form of accounts decreed on. 238, 828 ; applioations for, tu be in chambers, 113. Administrator— see executor. Ai>MiS8ioNS'- of service on solicitor need not be verified, 131. Advertisement — for absconding debtor, 6U. for defendant in ioieclosiure and specific performance suits, 60; requi- sites for a6[idavit to obtain, 61 ; of notice of motion for order pro con. 75; form of, 235. 312. for creditors by master, 141, 168 ; form of, 829 ; for next of kin, 168. on sale, draft 117 ; contents of, 1 18 ; how settitd, 118 ; form of, 380. ArriDAViTS — to be expregsed in first person, 132; read over to deponent, 182; general directions as to, 182; must contain address and ■ .► addition of deponent, 132; except parties, 132; when irregular affidavits allowed, 182. ' to be divided into paragraphs, 202; to show sources of knowledge, ,': 211; to be taken off the file when scandalous, 195; costs of, when disallowed, 195, 2u2; taxation of, when too long, 196. croBS'exami nation on 94, 95, 134 ; jurats to, rule as to forms of, 183 ; forms of, 309,310; when sworn out of jurisdiction, 182,223; when oiiginals to be used. 131, 208; and office copies to be fur- , nished, 181. of service of bill, 56, 223 ; reqnifiites for advertisement of absent defendant, 61. on order to produce, 92 ; by whom made, 92. hearing cause on by consent, 93. OH motion for special injunction, 103, must set forth all the facts, 104; on iuteiiin injunction, 132; on motion for pro con. foreclosure decee, 112. on notice of motion muft be filed, 129, 181, 208; and mentioned in notice, 129; rules as to reading, 129, 181; in reply, 129, 181; yi i ? : f 11 \h I f SM INDEX. |«> M ^^; 1 1 ^ ^ ;_ 1 Affidavits — ( Concal Masters and deputy Registrars, 5 ; additional clerks, 7. committee in lunacy. 16 ; guardian of infant &o., 76, 128, 186. receiver, 83, 114, 124. ^, on order for sale, 117. in master's office, see master's office, service of, 207. . form of, in schedule, 237 ; in appendix, 297. Arrest — writ of, 26o ; how obtained, 12, 260 ; bail on, 260 ; extent of secu- rity required, 260 ; wheu to issue for non-payment, 261 ; form of affidavit for, 308. Articles to disobbdit — abolished, 192. Assignee — of moitguge, form of bill by, 275. Assistance — writ of, when to issue, 184. Attachment — wheu to issue, 182; to person not party to suit, 184; for delivery of possession not necessary, 183 ; order ni.si for to be personally served 182; in master's office, 192; with proclama- tions abolished, 183. Attorney General order pro, con. against, how obtained, 73 ; dismissal of infoimatioD against, 102. AccTioNEKa — to make uffiJavit, 119 ; form of, C07. Notice, when lo be served and on whom, 196 ; form of, 318. Bank Manage bs — Certificateof non-payment, 206; form of, 830; practical directions, 832. •21- •au 346 INDEX. '■ if '."-''* ?!^*J'?; ii^i. ^ Bab of suit— when diamissil, 194. BiDDiNas — need not be in writing, 119 ; judge or master may fix reseryed' 119 ; certificate of, 119. opening biddingn, when motion for, 119; to be made in Ohambers, 114; form of notice of motion for, 814. Bill of Complaint — form of, 54 ; to whom to be addressed, 222 ; to be divided into paragraphs, 202 ; parties to, 68, 64. filing of, 65 ; effect of, 56, 6tf ; with registrar, 66 ; deputy registrar, 174. endorsement of, 166, 167 ; form of, in ordinary suits, 282 ; in bills for foreclosure and sale, 221. service of, 66 ; substitutional service, 68 ; on abi^onding defendant, 69 ; absent defendant out of jurisdiction, 222. on corporations, 187, 188. acceptance of service of, by solicitors, 67 ; form of, 828. may be talcen off the file for scandal, 194, not to be excepted to, 194 ; unnecessary matter taxable, 196. for discovery in what cases, 67. decrees on billR for foreclosure redemption and sale, 221. certain kinds abolished, 64, 66, 66, 218. dismissal of, for want of prosecution, 88, 89, 99 ; how time computed, 100, 101 ; if party refuse to be examined, 98, , when set down for, and at hearing, 194; not dismissed for misjoinder only, 107, 108 ; in alimony suits, 13 ; in foreclosure suits, 110, 111. forms of in schedule ^.26, to 282 ; in appendix, 274 to 288. Bill and answer — when cause to be set down on, 88, 89 ; exhibits may be proved by afiidavit on, 93; when heard, 213. Bond— for security for costs, 38 ; to be to registrar, 169; deputy master may order, 175 ; form of, 820. from receiver, to be to master, 125 ; to be settled by judge or master, 125; form of, 321. for costs ia court of Error and Appeal, 247 ; conditions of, 247, 248 » 249 ; where execution stayed, 248 ; sureties of 249 ; affidavit of ^ 249 ; allowance of, 249 ; filing pf, 252 ; form of, 318. in appeal to Privy Council, 25S; form of, 819. ■ ,';. in appeal from County Court, 25, 26, 257 ; form of, 319. in appeal from Surrogate Court, 259. ' '? BooEB — Appeal, 250 ; to be delivered four days before argument, 265. public, extracts from, 265. ■ ,, ,, i „ of trustees of religious institutions, 268. \ ' ", ■> t- jc. ■ ": r ' master's, 139. Registrar to keep Solicitoi- and agents, 1 65 ; deputy registrars to keep such book, 175. , . >> , i : production of, on order, 90, 91, 92. of account to be prima facie evidence before jndge, 116; or master 137 ; may be disputed, 116, 137. ; t' • f\ INDEX. 847 OABRUOK^f decree in master's office, 141. Cask — iu appeal, how settled, 255. OAfSES— Registrar to prepare lists of 191, 218, 218 ; for examination, wbea to be set dowu, 191. in hearing 213, 218. in court of Error and Appeal, 244, 266. rehearing of, 214. reading depositions in other, 215. what days heard on, 213. vacation not to count iu time for setting dowu, 87. Ckbtifioate — of proceedings before master, 141. of wills filed in foreign countries, 266. Oektifikd — copies, when receivable, 265, 266. Chambkbs — to be lield daily, 113 ; business in 113 ; judges to have power of ' court at, 114 ; may adjourn to or from chambers and court, 114; whi5n such cusc^s heard in court, 114,215; when appeals from, heard, 215; course of proceedings in, 115; noticeof motion in, 115, 128; appuinlmeiit in, 115; form of, 237, 316; services for, may be dispensed with, 115, 184; parties may be added in, 116; Bucb parties may move to discharge, 116; judge may abridge or enlarge time, 184; amount of account may be fixed at, 209, 210. Commission — to examine witnesses, 11, 190; costs of, 190; form of affidavit for, 808 ; of notice of motions for, 313. to take answer 69. .•: . OoMMiTTEE — of lunatic, see lunatic. OoMFOSiTiox — of dower, 22. Computation — of time, 36, 87. v Condition — effect of non-compliance with in order, 102. Conditions— of sale, 122 ; forms of, 287, 327. Conduct — of suit, 141. Confidential — communications 90, 92. , CoNFiaMATiON — of Sale, 120, 212. - Contempt — for non-production, 90, 91. of master's warrant, 139. for non-payment aboUshed, 261. taking office copies waiver of, 168. CoNVEYANOKS — masters to settle, 163. by religious bodies, 268. Copies — of what may be brought into judge's chambers, 116, 117 ; masters office, 140. certified when receivable, 265, 266. office, decree iu master's office, 164, 173, 203 ; in judge's chambers^ 115; endorsement of, 287. office, to be made by solicitor, 167 ; how to be written 168. efi'ect of demanding, 168. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 1^ IIIM IIM 112 12.2 1^ IIIIIm iiiii ^ 1^ illi ^ li£ nil 2.0 11= 1.4 Illi 1.6 V]

^ "fy'^'w o 7 Photographic Sciences Pomnratinn 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-450T %^. / & ^ 348 iHiiiix. -i-^ OoRPOBATiOMS— serrioe on, 187, 188 ; parties to saiti, 48, 44 ; orierp^eM^ against 188 ; when to apply, 189. Costs— security for, when ordered, 88, 30, 46 ; bonds for to be to registfaf*,'^ 169 ; deputy registrar may issue order for, T75 ; in court of error and appeal. 241, 818 ; in privy counoil, 246, 819 ; in coUnty coni't, 26, 26, 267, 819; in aurro£;ate court, 268. may be ordered iu gross, 176 ; rules as to giving costs of taxation of, 176, 177 ; re-taxation of, 216; c -sts of, 216. master to tax without, reference, 206; between party and party, 177. of re-liearing, 66 ;, of motion to clisraiflp, 89 ; party not entitled to by merely attending to aslc, 130; of improper pleadings, 196, 201. in appeal, 241 : privy council, 246; county court, 267; of producing orijrinKl wilU, 266 ; of proceeding at law and in equity, 198 ; of admiili8^.ration 84, 86 ; of proving olaim:^ in master's oflSce, 142. of refusing to vlmit, 138; of postponement of examination, 192; of affidavr-B. iGr;, 208; of solicitors neglect, 200; in lunacy, 18. tariff of, 17V to ''^' ; sheriff's, 201, 6. fa rer. ex. and sequestration for, 262, 263. cubpoBoa for, n' olisbed 188 ; no contempt for, 261. forms of 881 , direction as to 882, OouNoiL PaiTT — a|)pop.l8 to, 244 ; in what cases allowed, 244. security for 246, 253, 319; approval of. 246. execution when stayed, 245 ; costs iu, 246. CouNSKi. — fees, 180. OoONTT O'URr — equity aide. 254; jurisdiction in what cases, 264, 266, in- junctions in, 265 ; removal to court of chancery, 266 : judges of &c , to frame rules, 4&0., 256 ; costs of, and appeal to court of chancery, 257. CoDRT OF Chanckry — Seal of, 1 ; judges of, 1 ; appointment of, 1 ; tenure of office, 2 ; salaries. 2; retiring aiinuities of, 8 ; oath of, 4. registrar, raastm-, acoountaiit and sorgeunl-at-arms of, 4 ; registrar and niastt'r's clei ks, 4 ; not allowed fees, 4 ; to render quarterly ac- counts, 6. local masters, deputy registrar, comtni.^sioners and usher of, 6 ; their duties, 6. master and registrar paid salaries. 6. local master's, Ac., receive fees, 7. governor may app'>int clerks, 7. oath of olBoers, 8; who to adminl-ter, 8. v sheriffs gaolers, Ac, officers of court, 8. surrogate oletk, officer of court, 269. to sit at Toronto, 8; judges to sit tojfether, 8; may sit sfparately, 9; ' all oases hea'd before single jinlge, in firBt instance, 9; order of hearing, 9, 213; U) take circuits, 9; division iuto, 10; venue in, 10; hearing on, 10; transnjission of pleaduigs to, 10, 220. witnesses exinuned viva voce, 10 ; interrogatories when allowed 10, 11. INDXX. SW OoVBT or Cbanoi»t—( (?iistration order, 88. advertisement for, 141, 163, form of, 829; claims of, how proved, 142. costs of, 142 ; sea forma. Cross-examination — of pHitiesor witnesses on aflSdavits, 94, 138, 134. Crimr — not to exclude witnesses, 264. Grown — party to suits, 41. • :1 Decision— rules* of, in Court of Chancery, 11. Deolaratort — decree, when ordered, 1 04. Decrees— registration of, 29, 173; enrolmpnt of, 171, 17?. minutes of, 172 ; rectification of, 172 ; good till discharged, 178. . \-\ ¥ 360 INDEX. 5* , i:'m DiOSSBB — ( Oontintted.) service of, 173, 181 ; endorsement on, 183; how enforced, 173, 181. ofl5co copieB of, by registrars, 165, 172; served on parties in judge's chambers, 116; endorsement, 287. pro eon. when set down for, 203 ; hearing of, 78, 218 ; defendant may appear, 78; on what terms, 78; when absolute, 79; to be passed and entered, 79, proceediug3 before, irregular, 79 ; if not absolute, Jiow made so, 79, 80 ; when vacated on defendant's appearance, 80; on what terms.Sl ; rehearing of, 81 ; on what terms, 31 ; receiver may be ordered in, 81 ; or sequesti'ation, 81 y binding on representativt's, 82. administration, motion for, 82 ; only in simple cases, 83 ; action at law stayed by, 83 ; in what cases generally granted, 88, 84 ; costs paid out of estate, 85: form of, 238, 316 ; see administralion. motion for, after time fur uusweriiii^. 85 ; notice of, 85 ; form of, 310. setting down, 86, 186 ; to what cases cuufiued, 2U3 ; when iieard, 213; affidavits to be filed, 85 ; declaration of right in, 87 ; plaintitf can- not abandon notice, 87, 194. leave for short notice may be granted, 136. mo"' for, before time for answering has expired, 87 ; on what terms, 87. on hearing, when defendant does not appear, 198. declaratory, 104; extent of order, 104; decisions ou, 104. partial, 104, 105. in aL>3ence of pernonal representative, 106 ; decisions on, 106, 107. foreclosure, 41, 196, 221 ; stay of, by payment, lU ; proceeding in mas- ter's office on, 195; when sale ordered, 112. consent, 171 ; how far binding, 171. rehearing, petition for, 65 ; form of. 291 : deposit on, 169. ' on further directions, 195, 196, 296, 334. ' when to be brought into muster's office, 135 et aequ.; prosecution of in, 136. when binding on persons not parties, 116, 164; such parties may move to vary, 116, 165; time and place of payment fixed in, 112; accounts and euquiriop in, to be umnbored, 170; not to contain evidence, Ac, 170 ; whaj^dfl^^ed a judgment. 261. Deeds — delivery of, may be ordered, 163,^^r Dkfsnceb — by answer and demurrer only, 67. DxPENDANT — absent, service on, 32, 221. > V absconding, service on, 69, 60, 205. / , ' may be examined as witness, 96, 97. V . DcLiVKaT — of deede, 163; in mortgage suits, 108, 204. , of infant to mother, 269. . > n . IlXMUBBER — to be filed within one mouth, 67, 176 ; long vacation not reck* oned in time for, 86 ; two days' notice of. to be given before netting down for argument, 67 ; for what day to be set down, 67, INDEX. 351 Dbkubbkb— ( Continued.) 213; two days' notice of hearing, 67; for what proper defence, 6*7 ; allowance of, partial, 68; effect of overruliug, 68; of filing on motion for injunction Ac, 68 ; forme of, 283, 284. DEPrsiT — sale onlered on defendant making, 110, 119, 207. on rehearing, 66, 169( 291. Depositions — of wltnessea to be in first person, 192, 208. reading in other causes, 215. Deputy Registbar — appointment of, 6; duties of, 174; bill may be filed -with, 174 ; to draw up certain orders, 176 ; keep book, 176 ; make office copy decrees, 203; returns, 203; fee to, on hearing, 220 ; see Registrar. Dkputt Mastkb — powers of, 17^^, 174, 176 ; see Master. Desertion — ground for alimony, IC ; of children, 269, 270. DiLiGKNOE — when required in moving to amend, 64, 66. DiBCLAiHEB — form of, 285. DisooTEBT— when bill for, to be filed, 67. Dismiss — when defendant may move to, 88, 89. answer to motion to, 61, 89. if plaintiff refuse to be examined, 98. for want of prosecution, 99 ; how time computed, 100, 101 ; who may move, 99, 101. where conditional order not complied with, 102. In alimony suits, 18. in foreclosure suits, 110, 111. in informations, 102. not allowed to, for misjoinder of plaintiffs only, 107, 108. effect of dismissal after notice of hearing, 193 : nt other times, 194. Documents — see production — sent by post or messenger, 168, 220. Dobmant — equities, enactment regarding, 24, 25 . Ejeotment — amount of bond in appeal in actions of, 248. Endorsement— of pleadings by solicilor, 166 ; by party, 167. in lieu of subpoena to appear and answer, 56 ; form of, 232. in forcclusiiroati^its, 221. to compel obedieB'^ll^p^gess, 181, 188. of petitions, 217. ^^ ^p> of decree served on parties in judge's chambers, 116 ; form of, 237 ; in ' master's office, 165 ; form of, 287. notices A. «fe K. in master's office, 198 ; forms', 817, 318. form of answers, 284 ; see index of forms, 325. Enrolment — of decrees, 171, 173. Equities — donn.int, euactmeat regarding, 24, 26. Evidence — act respecting, 263; who may give, 264. certified copies when, 265 ; of wills, 265 ; in fureign countries, 266, 267. upon petitions substitutetl for certain bills, 66, 66. ssz INSBX. nn ;,;:.fc, Etidinob — (Continued.) at heariog in foreclosure suits, 111 . at hearing, to be entered by registrar, 1*70 ; wbht to be used, 90, 220 ; effect of using part of, 98 ; rules as to reading and reception o^ 170; on affidavits by consent, 98. on motions, petitions and interlocutory proceedings, 131 ; servico on solicitor need not be verified, 131; affidavits must be uied, 181 ; when notice of reading given, cannot be withdrawu, 131 ; when originals to be used, 131 ; when office copies, to be for- nished, 182. when defendant appears after decree nut, 78. by affidavit of certain facts, 93. of scientific persons, 113. books of account prima /a«t>, 116, 137. to have guardian appointed, 185. order to produce, 90, 176. EzAifiNATioN — before examiner, 186 ; out of term, 188. of witnesses, 189 ; where to be held, 189, 220. may be changed, 190. out of jurisdiction, 11, 190. terms, 190, 220; after issue joined, 190 ; who may set down for, 191 ; how set down, 191 ; registrar to prepare list, 191. notice of, to be served, 191 ; all witnesses to be eicamined, 191 ; trans- mission of papers on, 168, 220 ; hearing to follow, 220. power of judge at, 192 ; witnesses may b« re-called, 192 ; no artioles to discredit, 192. depositions to be in first person, 192 . Court may order, 192, 193; deputy master may postpone, 17&; or judge in chambers, 118. cross, on affidavits, 94, 95, 138; notice of, 184, 186. 4«^ v'i of parties, 95, 96, 97, 216 ; rules on, 96, 163, 164. of infant under 12 Vic, 124. EzoEFTiMa— for scandal abolished, 194. ^^^ ExKouTOB — may obtain administration decree, 84 ; costs of, 84, 86 ; see administration. EzBODTiON — of conveyance by master, 168. when stayed by Court of Error and Appeal, 241, 261. how stayed, 242 ; conditions of bond double, 248 ; of judgment of, 261; when appeal supersedeas of, 260, 261, 252. in appeals to Privy Oouncil, 246. ; i, writ of, abolished, 181 ; see Process. Exhibits— how to be proved, 98 ; what meant by, 93. schedules of, to be made, 200. ExTBN8ioK~of time granted in chambers, 113; by deputy master, 17B. for payment of mortgage money, 207. .) , 90, 220 ; leption 0^ ; seirice tbe iiied, awu, 181 ; for, 191 ; ■CI' 1- 91; trans- 10 artioles Wft; or I, 86 } B«e it of, 261', 4> , 176. INDKX. d5a Fxxs— master and registrar not to take, 4 ; to make quarterly returaa d^ 5 ; local masters and deputy registrars may retain, i. on filing, H3. counsel, 180. eberiff's, 201 . on setting down for causes, 199, 220. See Costs . FiUNQ — bond by traverser in lunacy, 16; inventory by committee io, 16; further inventory. Id. bill, 66; effect of, 66, 66 ; with deputy registrar, ^74. answer, 69 ; notice of, 69 ; effect of not eerviog, 70. pleading, 89 ; notice of, 89 ; effect of not serving, 89. affidavits, 86, 131, 208. master's report, 210, 211, 882. receiver's bond, 126. examination and petition of infant, 124. FoBBOiosuBK — suite, 108 ; endorsement of bill, 221 ; form of, 826 , parties to, 197; order for possession in, 108,204; when granted, 108; sale in, when ordered, 108, 109, 112, 207 ; conditions of, 109, 110, 207; form of, 237,274. answer in, 221 ; forms of, 221, 286. personal order in, 110 ; against surety, 110. when defendant may move to dismiss, 110, 111. decree in, stay of, by payment. 111 ; what to be produced at hearings V 111, 112; order obselete, 112; directions on order for sale, 112. reference to master, 112, 221 ; proceeding in master's office, 196, 197 882 ; when prioi mortgagee necessary party in, 197 . delivery of possession after final, 204. forms of, notices in, see index of forms, 274, 286, 801, 809, 880. FoBEiGN governments parties to suits, 42, 48 . oorporations parties to suits, 44. commission, to take answer, 69 ; to issue on miuter's certificate, 162. FoBMS— see index of forms. Fbaud— limititation where, concealed, 271. rests ordered in cases of, 161. Fbiind— next, see Parties to suits, 40-48. not necessary in alimony suits, 64 ; or petitions by mother for Otre of children, 270. FcBTHER — directions, hearing on, 196, 196 ; bill of costs on, 884. answer to amended bill, 88, 199. Gaols — prisons of Court of Chancery, 84 . Gaolkrs — officers of Court of Chancery, 8 . QoVEBNOB — may appoint clerks, 7 . QVABOiAN — ad littm to infant. notice of application, 76 ; how and on whom served, 76 ; how q)point- . •d,76. \\ I h !■ S54 INDEX. SuABDiAN — CotUinued. ) after decree, 18*7. on abatement of suit, 219. on petition under 12 Vic. 21. 123. may be appointed in cbambeiR, 118; by deputy master, 176; bowap- pointed, 128. on infant's request, 185 ; affidavit on, 185. to lunatic, 16 . wbere children will be left in care of, 270. recoguizance of, 826. Habeas Ooepus — writ of, may be granted in chambers, 114. Hkabinq — before single judge in first instance, 9. order of, 9 ; when causes set down for, 218, 218. notice of, to be given to registrar, 218. pro con. defendant may appear on, 78 ; on what terms, 78. by consent on affidavits, 93 . in pro con. foreclosure suits, 111, 112, 221. none in suits for foreclosure redemption and sale, 221 . when defendant may set down for, 193 . effect of default of defendant at, 193. dismissal by plaintiff after notice of, 194. on further directions when to be set down for, 195. solicitor to attend at, 199 ; to bear costs of default, 200. to follow examination, 220 ; evidence to be used at, 220 ; schedule of ;^ exhibits at, to be made, 2U0; pleadings, how transmitted to, 168, 220; fees on, 220. forms of notices of, see index of forms, 295, 296. notice of, in Error and Appeal, 260. HouDAY — effect of, as regards time, 37 . /i Impebtinenoe— exceptions fur, abolished, 194 ; pleadings and affidavits taken off the files for, 195. when motion to be made, 195. Income — husband's, guide in alimony, 13. f/r^ parent's, when taken into account in determining custody of children, 270. ]no0mbbancbs — priority of, need not be determined before sale, 108, prior, when to be made parties, 197. subsc (juent, to be added by master, 197, 198. evideuce on which made parties, 196, 198, 832; to be served with office copy of decree, 197 ; effect of failing to appear, 198 ; form of notices to, 317, 318 ; bill of costs of, 831 . Infants— custody of, 19, 20, 269, 270. sale of, estate may be ordered, 20, 122 ; mode of proceedure, 21, 122; none contrary to devise, 21 ; how application for, to be made, 21, 122; petition to be presented, 122; contents of, 122, 123; form , ► ; bowap- 'J chedule of naitted to, affidavits .3 ur. children, 08. rved with 198 ; form >, 21, 122; made, 21, 123; form INDEX. SSfi IVTANTS — (Continued.) of, 291 ; guardian may be appointed on, 21, 124; infiint must be produced, 124 ; examined, if above seven, 124 ; petition to be verified, 124 ; master may examine, 124. Court may order execution of conveyances for, 21 ; e£feot of, 22; iii< what oases proper, 123; master to eettle, 168. money raised to be applied as Court directs, 22 ; quality of moneye raised, 22 ; composition for dower allowed, 22 . parties to suits, 46, 47, 48. order pro con/easo against, 18, 76. guardian ad litem to, 76 ; notice of application for, 76 ; how appoint-- ment made, 76 ; after decree, 187 ; on abatement of suit, 210. guardian, how appointed, 128 ; by master, 176 ; at infant's request, 18S. where, left in care of, 270. to have day to f>how cause, 171 . custody of, 269 ; delivered to mothers oo petition, 269 ; how order en*^ forced, 269 ; exceptions, 270 . form of foreclosure bill against, 276 . ImroBMATioNS— see Parties to suits, 4 1 . form of address of, 273. cannot be dismissed for want of prosecution, when filed by Attorney- General, 102 ; contra by relator, 102. Injunotion— jurisdiction of court to grant, 12. effect of demurrer on motion for, 68. does not prevent motion to dismiss, 102. to stay proceedings at law, 103 ; how obtained, 103 ; motion for, 108; evidence on, 108 ; affidavits must set forth all the facts, 104, 182 • continued after bill dismissed in special cases, 262. on default of answer abolished, 103. granted in administration suits, 83; in pro eon. suits, 81 ; in Oonnty Courts, 256 . form of motion for, 811. IifSTaoMENTs — executed under Chancery act valid, 18. Intkbkst — not to exclude witness, 264. form of bill on default of payment of, 276. Inteelocutobt— ordei'S not to be enrolled, 171. See Evidence . Ihtbrpbktation— of words in orders, 36 . iNTBRBOOATORiBa — written, not to bo administered without leave, 11, 96; in bills abolished, 66 . for examination of witnesses abolished, 96. used in foreign commissions, 11 . Intkntobt — to be filed by lunatic's committee, 16. iRBBOntARiTY moved against must be specified in notice, 218. lB8nEB->trial of, 29, SO, 81 . how joined, 87 . m itmmi. 13 -5-f JBKom—(Continued) "^ tUtnination after, t89. df ftet, how tried, 102. trial of, in administratioD eaite, t08. new tria:l of, 15, 102 . in lunacy, 14. JoDQMEMT — when decree deemed a, 261 . of Court of Error and Appeal, when final, 244 ; how entered, 240. JuDon — appointment of, 1 ; to sit together, 8, 218. may rit leparately, 9, 218 ; to frame rules Ac, of County Court, 258. dhttnbers, 118 ; to be held daily, 118 ; eame power as in court, 114; raf^^ adjourn to and from chambers and court, 114; when such matters beard in court, 114 ; course of proceedings in chambers, 116 ; appointment at, 116 ; form of, 287, 816 ; notice of motion in, 115, 128: see index of forms; may be dispensed with, 115; parties may be added in, 115 ; who may move to disoharge, 116. amount of account fixed at, in certain cases, 209, 210. time may be enlarged or abridged by, in, 184. appeals from orders in, by, 216. JVBAT-HTule when long or short form to be used, 183. forms of, 234, 809, 810. JoaiSDiOTiON — of court, 11, 12; over trustees of religious bodies, 26t; infants, 270. service out of, 6*7, 222 ; how order for obtained, 58 ; time within which service to be effected, 222. examination out of, 11, 190. of Court of Error and Appeal, 239 . ' i of County Court, equity side, 254, 256. id limitation of actions, 24, 26, 271 . Knowledge — sources of, to be given in affidavits, 211. Legal — rights may be determined by court, 102 . Legatee — in what cases, may obtain decree for administration, 49, 83. -ni Length — unnecessary, of pleadings, Ac, taxable, 196. Ldcitation— of action in equity, 24, 25, 271, 272; period within whtdi action to be brought, 271; in cases of express trust, 271; C0D> cealed fraud, 271 ; acquiescence, 272. Lie Pkndbns — effect of registration of, 29 . \ where necessary, 29 ; how discharged, 66. Long Vacation — when to commence and end, 86. •, •• t '^•" in what cases time of, not to reckon, 87, 199 . . ^ . v /< > Lunatics— jurisdiction over, 13. signification of, 14. commission of lunacy may be dispeused with, 14 ; may be granted it chambers, 114. INMBX. 867 1,240. turt, 268. Durt, 114; when 8uoh ohambera, of motion with, 116; urge, 116. LniATios — ( Ocntinued. ) traTene of, 14 ; within what time, 14 ; where tried, 14 ; when tra. Terser to file security, 16 ; when barred, 16 ; mode of treyene when no oommiBaion, 16 ; new trial in, 16. care of property of, 16; committee to give sureties, 18 ; to file iuTen- tories, 16; verified on oath, 16; how oommitteea appointed, 16, 128. when estate insufficient to pay debts, 16 ; oommittee to petition for leave to mortgage, sell, kc, 16 ; contents of petition, 16 ; how enquired into, 1*7. if personal estate insufficient, real estate niay be mortgaged, dcci 17 ; debts paid out of proceeds, 17 ; money to be applied equally, 17 ; if personal estate insufficient to maintain, real estate to be applied, 17 ; how far committee may act, 18; and see, 126, 126, 127, 128. ',^1 : instruments executed for, when valid, 18. speoifio performance of lunatic's contract, how enforced, 18. costs of proceedings, how paid, 18. committee to apply to be appointed guardian ad litem for, 76. form of petition to have person declared, and for committee, 298. dies, 267; thin wbidi 9, 88. n hin whitA 271; coQ- granted ill Marbird Women — parties to suits, 46, 46, 64, 207 . order jt>ro con. against, 73 ; how obtained, 78. not examinable by party opposed to her husband, 266 . may have care of children, 269. ii^ij* exceptions, 270. .r* . petition for, 270. 'i-~- need not name next friend in alimony suit, 64. Mastbb — appointment of, see Court of Chancery . reference to, may be dispensed with, 112 ; plaintiff's right to reference oVi to master where bill filed, 113; reference to, in foreclosure cases, when dispensed with, 112, but see 221 . to tax costs without express reference, 206 ; examine under 12 Via o. 72, without reference, 124. to keep master's book, 189 . may have assistance of accountants, &c., 113. „^ when decree to be brought before, 135 ; manner of prosecution of de- cree before, 136; to give directions as to, 136, 137; to give cer- tificate of proceedings, 141 ; may transfer prosecution. 141 . power of, in taking accounts, 143 ; extent of order, 143 ; as to rests, 144 ; rests as against executors, 144, 146 ; in cases of neglect, 146, 146; where accumulation directed, 146, 147; where trustee em- ploys funds in trade, &c., 147, 148, 149, 160, 161 ; in cases of fraud, 161 ; against mortgagees in possession, 161, 162, 168 ; in cases of rents and profits received c&c.,, or which, but for wilful neglect Mabteb's Refobt— how settled, 164. no document to be recited in, 148. ^,- in foreclosure suits, 198. ' on sales, 211. how confirmed, 164, 210 ; filing of, 210. duplicate of, 211. appeals from, 210; when heard, 213. KiNUTES OF Decbee — how prepared, 172 ; settled, 172 ; passed, 172 ; yaried, 172, 173. MiSfOiNDEB OF Plaintiffs — no dismissal for, 107, 108. Monet in Coubt — how controuled, 82 ; how paid out, 32 ; to be paid into Commercial Bank, 169. , MoRTGAQE — to be paid into a bank, 206 ; to whose credit, 206 ; order on default of, 206. INDBX. M If OBTOAOK — ( Continued. ) extension of time of payment of, 207 ; what to be sbewD, 207 ; change of state of accouni of, 209 , MoMTB— means lunar month, 87. UoRTOAOKS — special provisions regarding, 28 . MoETGAQEES— prior, where necessary party, 197. not allowed costs at law and in equity, 198. accounts with rests when taken against, 161, 162, 16S. Mother — when ontirt will deliver infants to, 269. Motion — for leave to amend, 64 ; see 62, 63 . for leave to petition for second re-hearing, 66 . leave to file supplemental answer, 71 . for order pro con.^ 72, 78 ; against married women, 78 ; to have guar- dians ad litem appointed, 76. for administration decree, 82. for decree after time to answer expired, 86 ; to wha'. nes limited, 86. for decree before time to answer expired, 87 . to dismiss for want of prosecution, 99, 100 ; evidence oc, 89, 102. for injimction, 108 ; to dissolve injunction, 108 . to discharge or vary decree by parties added, II u, 198, 1\9- orm of, to vary minutes of decree, 172. to set aside sale, 119. for examination substituted pro interretse mo, 185. to chang<^ venue, 10, 189. to take pleadings off the file, 196. for examination, 189 . See Appendix of forms. !l" Viw TaiAT.— in lunacy, 16. to be applied for in court where trial had, 102. NizT OF Kin — one of, may have administration decree, 49, 82 . advertisement for, by master, 168. Konoi or Motion— when it may be given, 128; when void, 128, 180 ; leave for short, 128, 186; two days notice of, 128, 129 ; style of cause necessary, 128; costs of, 128; affidavits must be filed, 129, 181; and mentioned in notice, 129; rules as to reading, 129, 131. affidavits in reply, 129 ; when to be filed, 129 ; oral evidence on, 129. when petition should be filed instead of, 180; fiat on copies of, 180. when amendment allowed, 180. for ordetpro con. 72 ; against married woman, 73. administration order, 82; see Administration order. of motions for decree, see Decree, 86, 87 . of filing pleadings, 89 . of eross-examination on affidavits, 94. of motion to dismiss, 99 . 990 HfRBZ. it > S' I Ua \M' \' ' SI/" fc5 if in n cz It' r ml NonoK OF Motion — (Continued.) . ., ^ t!«*'; of motion in chatafbers, 115; eervioe of, may be dispensed ^th, 116 . of surcharge, 11*7, 140. of objections to sa'io, 119 . of appeal from master's report, 210. of examination, 220. of hearing, 213, 218 ; in a{^eal, 260. of re-hearing, 218. to set apide for irregularity, 218. And see Index of forms. ' Notice " A." — when to be served, 197 ; form cf, 817 . — — " B."— when to be served, 198 ; form of, 818. Oath— of judges, 4. of officers of court, 8 . whom to administer, 8, 26S. See Jurats 809, 810. Omcs Copies— of decree, when to be served, 60, 79, 116, 164, 17**, 197. to be demamJed, 181, 167 ; to be delivered within forty-eight hours, 181, 168. effect of demanding, 181, 168; when office copies of affidavits not taxable, 208. to be prepared by solicitors, 167 ; how to be written, 168. decree made by deputy registrars, 203. forms of endorsement of; see Index of Forms, 188, 237, 817, 827. Opinions — of scientific persons may be obtained, 113. Obders — general, continued, S3 ; Court may make, 33. Introductory, 35 ; abrogation of, 86. certain orders of 1853 ; when to come in force, 185. of the Court of Error and Appeal, 246 ; how to be tested and dateff, 251. of the County Court in appeal, 2o, 26, 254. r^^Vf Obdeb— of hearing in Court of Chancery, 9, 218, 214, 216, 217, 219. for service out of jurisdiction, how obtained, 68 ; for BitbekitntiQliil^ service, 68. to amend bill, 61 ; service of, 61 ; taay be dispensed witii, 61. . .i to amend clerical errors, 61 . . one order of course to amend, 62 ; when void, 63 . ^ ibsterd of supplemental bill, 64. • ^ instead of bill of revivor, <&c., 218 . to rehear, 214. ♦ ,, to take bill pro. ton., 72 ; et. teq. ; and see page 222. administration, 82. to produce, 90 ; effect of disobedience,of 91; what must be produced on, 91, 92, 93 ; how enforced, 90 ; affidavit on, 92 ; by whom to b« made, 92. ith^llS. * ?5j» m tis ' HTDBX. 991 OM.i>m^{Continued.) ho distniM, 09, et»eg. conditional, effect of non-compliance with condition, 102. when binding on estates of deceased persons, 106. chamber, force of, 114. of course, to be drawn up by Registrar, 169 ; by deputy regifltrars, 176. for possession of mortgaged premises, 108, 204. for security for coets, 88,66, 169; in Error and Appeal, 241, 24T ; in County Courts, 25, 26 ; in Surrogate Courts, 269. interlocutory not to be enrolled, 171 . ~1% 191. ;ht hours, i lavita not ,827. id dstea, 19. ititaUgilfk luoed on, >mto be ^iitlniis — to suits, 40 ; crown, 41 ; foreign governments, 42, 43 ; corpora- tions, 43, 44; married women, 46, 46 ; infants, 46, 47, 48. setting down for want of, abolished, 48. who are necessary in certain suits, 48, 49, 64, 82, 270. rules as to, in certain cases, legatees, 49 ; devisees, 49 ; ceatuis qwt trust, 49; executors, 60; principal and sureties, 62. what, may obtain administration order, 82. examination of, 96, 96, 97, 186, 216. when, maybe examined, 98, 133; notice of, 183, 134; rules on, 96, 163, 164; to produce documeuts on, 97, 162 ; by master, 162. not to give evidence in their own favour, 264 ; may for other side, 264; wives of, not examinable against husband's interest 266. maybe added in Judge's Chambers, 114; master's office, 164; in- terested in equity of redemption added in master's office, 196 204. suing or defending in person, to give address for service, 167. may servo pleadings, 202 . PiKtiTlON— jurisdiction of Court, to order, 19; effect of decree for, 19; over estates of married women, infants, dec. , 19 ; office copy de* cree to be evidence of, 19. PABTNEusHtp — bills for account of, and to dissolve, 227 ; and see Index of Forms . Pbrbonal bgfresentative — decree in absence of, 1 05 . PcTiTiON — when proper instead of notice of motion, 130. fiat on copies of, 130, 217 ; to whom addressed, 217 ; to be divided into paragraphs, 201 ; taxed when unnecessarily long, 195 ; or scandal- ous, 196; amendment of, 130; must be filed before order issue, 180; costs on, 130. ' evidc.ice on, see Evidence. when committee of lunatic to, 16. for rehearing, 66 . for second rehearing, 66 . instead of bill of review, 66 ; heard in Court, 66 ; must be rerified, 66. 362 INDBX. J> * ^ \ n n\. Pbtition — Continued.) when beard, 217; endursoinent on, 21*7; setting down, 217; notice of, 217. to discharge order of revivor, 219. to be filed on appeal 243 ; fnrm, 248. not to be answered, 243 ; filing of, 252. by mother for custody of infant children, 269. for sale of infant's estate, 122. Plaobs sbleoted — for examination of witnesses, 190. Plkadings — to be filed in same o£3ce as bill, 65. notice of filing to be given, 89 ; scandalous to be taken off the file, 194 ; or taxed, 196 ; when unnecessarily long to be taxed, 196 ; to be divided into paragraphs and numbered, 201 ; to be addroM- ed to judges, 222. may be served by parties, 202. pLBAS-^abolished, 67. Power — of master, 148 to 162 ; to grant time, 17 o. Court or Judge to enlarge or abridge time, 118, 184. PaiNTED— cases in appeal, 263. 266. Pbooerdings — in local master's and deputy registrar's offices, 61, 74. Pbooess— service of, 181 ; to bo endorsed, 181, 183 ; to state time of per- formance, 183. attachment, when to issue, 182. sequestration when to issue, 182 ; to whom directed, 183. attachment with proclamation abolished, 188. writ of assistance, 184; to issue to person not pavty, 184 ; against whom, 184, 204. Pbo. Oonfbsso — preliminary proceedings, 72. order, how obtained, 72 ; within two months, 72 ; between two and six months, 72 ; after six months, 78. against infant, 73, 76; married women, 78. Attorney General, 73 ; Corporations, 188. when service accepted by solicitor, 73, 75. not necessary in suits for foreclosure, redemption, and sale, 78, 221 . en service out of jurisdiction, 74, 222. where service not personal, 74, 75, 77. advertisement for, 75 • not to be served, 77. after six years, 77. \ amendment without prejudice to, 78. Decree when to be set down for, 78, 218 ; when heard, 78 ; defendant may appear on, 78. when absolute, 79. to be passed and entered, 79. when not absolute how made so, 79, 80. when party refuses to be examined, 98. mmdt INDEX. 363 17 ; notice r the file, ced, 196 ; ! addreu- Pbo CovrK90—{Continiud.) when Taoated on defendants appearing, 80, 81 . evidence for, in foreclosure suits, 112. receiver may be order in, 81 ; or sequestmtion, 81 . binding on represetitativea, 82. Peodootion — order for, when obtained, 90 ; service of, 184 ; effect of dis- obedience to, 91 ; what must be produced, 91, 92, 98 ; bow en- forced, 90, 184; affidavit on, 92. may be postponed by deputy master, 176. by party on examination, 97 ; effect of refusal, 98 . service of rule nisi for, 184 ; when to be personal, 184. Pbo 1NTEBE8SE 8U0— examination, abolished, 184. practice instead of, 185. Peotbotion — of property, pending litigation, 50. Publication — rule lo pass abolished, 190; when it passes, 190. I i e of per- against two and 221. V fendant QuABTCRLY — accouuts, registrar and master to render, 5 ; deputy regis- trars to render, 203. Receiveb — how appointed, 124; his duties, rights, accounts, and sureties, 125, 126, 127, 128. may be appointed by pro. con. decree, 81. in administration suits, 83 . in Chambers, 114, 124. Bond to be to master, 125 ; to be settled by judge or master, 126. form of recognizance and accounts, see Index of Forms, 821, 823. RBrEBENOX — to master may be dispensed with, 112. Rkdemption— suits, decree obtained on precipe, 221 ; endorsement of bill in, 221 . Reoisteae — appointment of, 4, 5 . to keep solicitor and agents book, 166; to examine and certify office copies, 167; how pleadings transmitted to and from, 168,220; bonds for security for costs to be to, 169. to sign cheques, 169. draw up orders of course, 169. to enter evidence in book, 170, 200. affidavits to bo filed with, 131 . cause for exmninatiou to be set down with, 191 . to prepare lists of causes, 191, 213, 218 : party to give notice to, 218, 218 ; exhibits to be deposited with, 200; to sign schedule of, 200 fees allowed to, 180, 199, 220. RiiQi8TB.ATion—oi lis pendens, 29 ; decrees, 29 ; 178. RsHBAaiNQ — instead of bill of review, 65. one of course ou petition, 66 . no second, without leave on special motion, 66. must be within six mouths, 66 ; 219. ' kP<«l $»4 IXDBX. Rbhbarino — {Continued.) deposit on, 66 ; 169. costs of, 66 . petition on, form of 290. pro eon decree, 81 ; on wbat terms, 81 ; within what time, 81 • terms, 214. applications in the nature of rehearing, 214. settiug down, 21*7. BsLATOB — when necessary, 41 ; 42. dismissal of information by» 102. Reliqious Institctioms— act respecting, 26*7 . sale of land belonging to, 267 : notice of, 267 ; how sold, 267 ; ese«a* tion of deeil, 268 ; approbation of court required, 268 . trustees to exhibit books of, at certain times, 268. court has summary jurisdiction over, 268. RsNTs — and profits received, or which but for wilful neglect, &o., might have been received, master to take account of, 143; revi«ii; c;! decisions on the clause, 164 to 168. occupation, master has power to set, 148. in what casM power exercised, 168 ; 169. Rbfjobs— improvements and costs, power of mMter to take aoeouni of^ 148 ; decisions on, 169, 160, 161 . BxTKAL—ot prior orders, 86 ; certain ordera of 18^^, 189 ; 211 ; 218. 1 of 1867. 218. Rkpi4QATI0N=— long vaoatioa not to be reckoned in time for, 86 ; 8f ; 'i ^ne to be filed, 88 ; when, 88 ; in what cases, 88 ; form of, 289. RsPoaT, Mastbb'b — not to recite documeDts, 142. *? to set out names of all parties added, 198 ; eettUiig of, IM ; wImb absolute, 164 ; who may file, 164, 210. change in state of account after, 209 ; how confirmed, 210; appM]» from, 210, 211 ; on sale, 211 ; when appeals heard, 218. Rbpkemmtatives — bound by pro con. decree, 82. by decree in absence of personal, 106. RsBALK— where ordered, 120. Rests — power of master 'o order, 148 ; against executors, 144 ; in oases of neglect, 146; where accumulation directed, 146; where trustee employs funds in trade, tbo., 147 to 161 ; in cases of fraud 161 ; against mortgagees in possession, 161 to 163. j^AZATioM— by moster, 216. RsvuEW— petitions instead of bill of, 66 ; 66 ; when set down to be heard, 217 ; endorsement en petitions, 217 . Rktiyor— bills of, abolished, 218 ; ameudment instead of, 218. Rules— of decision, 1 1 . as to parties, 49 to 63 ; legateep, 49 ; deviaeep, 49 ; ctttuii qv§ trurt, 49; executors, 60; trusteeiv 61 • principal and smetie?, 52. > ' > u ; * INDEX. 365 ' t, ; enm* I., might Bvi««! qf ount 0^ appMb oases of trustee id 161; i beard, t /fttif* SlLB— order for, in foreclosure suits, 108; how obtained, 108, 109; in what cases, 109; coDdition on which granted, 110; personal order on, 110; direction in decree for, 112; judge or master to settle condi tions, 112. under decree how conducted, 117; original decree to be used, 117; varied by prnotioe, 117; appointment to be served, 117; draft advertisement to be carried in, 117 ; what to contain, 118 ; how settled, 118; how published, 118. upset prico or reserved bidding may be fixed, 118, 119; agreement to be signed by purchaser, 119, 212. master to settle mode of, in his office, 168. proceedings in suits for, in master's office, 196. conduct of, 118, 207. how objected to, 119; what necessary to set aside, 120. how confirmed, 120, 211. *A master's report on, 21 1 . resale, terms of, 120. enquiry into titles on, 121. standing conditions of, 122, 287, 827. endorsement on bills in suits for, 221 ; decree on, obtained on preoipe» 221. prayer for, in mortgage bills, 276. SOANOAi/— excepting for, abolished, 194 ; scandalous port struck out^ 194, 196 ; or pleading taken off the file, 196. SoasDDLE— of exhibits to be made iu duplicate, 200. to orders of 1868, 226. SoRMTirio — persons, assistance of, 113. SKOuarrr voa Costs — when ordered, 38, 89,40; bonds for, to be to re(^. trar, 179 ; deputy registrar may issue order for, 176. in Court of Error and Appeal, 241, 818. in Privy Oounoil, 246, 819. in County Court, 26, 267, 819. in Surrogate Court, 268. SsQOBSTBATioN — may be ordered by pro con. decree, 81; writ of, 182, SflS* to whom directed, 188. SxKvicK— of process in foreclosure suits, 31. on absent defendants, 82, 222. of bill, 66; out of jurisdiction, 67, 222; evidence required for order for 68, 222 ; affidavits of, how sworn, 228. ■ substitutional ; how obtained, 68, 69. on absconding defendant, when dispensed with, 69. absent defendant in specific performance and foreclosure suits, 80. where accepted by solicitor, 61, 78, 76; form of, 328. '-^ on infants, 76. on corporations, 187 ; foreign corporations, 188; order pro con. againat^ 188, 189. 366 INDEX. Il" Skktiue — (Continued.) of proceedings ob solicitor when admitted not to be verified, 181. of papei'a by leaving in Registrars office, 166, 207. of decree, 207 . of order of revivor, 218. of petition in place of bill uf review', 21*7. SxTTiNO DOWN— on motion for 'iecree, 85, 203. for examination and bearing, 220. if plaintiff neglects defendant may, 198. effect of plaintiff's dismissing after, 194. on further directions, 195, 196. for rehearing, 217. Sheriffs — officers of court, 8 . what proceedings obliged to serve, 202 ; how compelled to return 202. fees, 201, 202. Signification — of lunatic, 14. SoLioixoKS AND Agrnts — book to be kept by Registrar, 166 ; by deputy registrar, 175. , \^ Souorroa — acceptance of service of bill by, 57, 73, 76. to enter name in registrar's book, 166, 176. to endorse name and address on pleadings, 166. service on, 78, 166, 207 ; of rule nisi, 139. striking off the roll, 186. change of, 167 ; death of, 167. , to attend at hearing, 199. to bear costs of default, 200. Solicitor and Cx.ient— costs when allowed as between, 340. Sfeoifio performance— service in suit for 60. of lunatic's contract, 18. ,;i State of facts, charqks and discharges. ; not to be brought into judges chambers, 115. or master's office, 189. Statute of Limitations— effect of filing bill in saving, 56 ; period within which actions to be brought, 271 ; in cases of express trust, 271. concealed fraud, 271 ; acquiescence, 271. Stay — of proceedings, till security for costs given, 38 ; in foreclosure suits by payment nft«r decree. 111. SuBF(ENA — to appear and answer abolished, 58 . to rejoin abolished, 87 . for costs abolislied, 183. no fee taxed on by master, 837. Substitutional service, order for how obtaiued, 68. Suits — parties to, 40 to 48 . proceedings in, when costs the only question, 194. Sundat as regards time, 37 . INDKZ. S67 led, 131. led to return 6 ; by deputy \ )eriod within )8 trust, 271. eclosure suits SuraBsaDKAS—of execution in error and appeal, 250, 251, SoFruoDENTAL — bUIs aboliflbed, 64. answer may be filed on terma, 70. leaye on motion naoeeBary, 70 ; bow supported, 71 •, to wbat extent allowed, 72. SoaoHAaoi — notice of to be given in judges dhambets, 119. is master's office, 140. 8uBmis-H>ne or more may be proceeded against, 62 ; may be made party to foreclosure suit, 110. a£Bidavit of, in appeal bond, 249. SoasoOAn OouaTS — appeals from, 258. bow removed, .258, 269 ; costs in appeal, 269. clerk of, officer of Oourt of Ohancevy, 269. TAUrr—- fees to solicitor, 177, fees to counsel, 180. fees to masters and deputy masters, 180, 199. fees to registrar and deputy registrars, 180, 199, 220. fees to Sheriff, 201 . and see costs. Taxation— of costs, 176. by master without express reference, 206. retaxation, 216. petitions for, 286 ; not in any suit not taxable, 290. TiEXs— examination, 190, 220 ; venue may be changed, 190; what places held at, 190. registrar to prepare lists of cases at, 191 ; all witnesses to be ex* ammed at, 161 ; power of judge at, 192 ; witness may be recalled at, 192. hearing to follow or examination at, 220. rehearing, 214, 217 . Tiki — computation of, 37. month means lunar month, 87. when of vacation not reckoned, 37, 199. for amendment, 63 . for filing demurrer, 67. for filing answer, 70 ; to amended bill, 70. obttuning order pro con., 72. for hearing pro eon., 78, 203, 218. for motion for decree, 85, 203. filing affidavits on motion for decree, 86. filing replication, &c., 88. examining parties, 94, 96, 184. moving to dismiss, 99 . extension of to answer or demur, 113, 176. deputy registrar may enlarge, 176 . -•JET 'W^ \ ni 368 INDBX. Taa—iContinued.) between service of notice and hearing of motion, 129. within which decree to be carried into master's office, 86. when report becomes absolute, 210. f»r delivering office copies, 181, 168. for enrolling decree, 171. for setting down for examination, 191, 220. for hearing, 218, 220. for rehearing, 214, 217, 219. for traversing in lunacy, 14. extension of, for payment of mortgage money, 207. for service out of jurisdiotion; 222 . TrrLB — enquiries into, 121 ; how preceded with, 121 ; delivery of abstract, 121 ; insufficiency of, 121 ; order niti for, 121 . Travbbsb — time to, commission <»f lunacy, 14. where tried, 14. when no commission, 16. when traverser to find security, 15 ; when barred, 16. i Tbespass — in nature of waste. i who may file bill to stay, 60. forms of bills, 230, 282 ; see Index of Forms, Trial— of issues, 29, 30, 81 . new, in lunacy, 16 ; to be applied for in Courtwhere first had, 102. Trust-— limita< ons in cases of, 24, 26, 271 . Trdstkes — to represent oestuis que trust, 61. rests ordered against by master, 147. of religious bodies, 267; may sell lands, 268, to famish detailed statement twice a year, 268 ; summary jurisdiction of Oourt of Chancery over, 268. Upset price— on sale, how obtained, 119. IJmobrwritino — master's warrants, 139 . Vacation — long. when to begin and end, 86 . in what proceedings time of, not reckoned, 87, 199. Venue— to be laid, 10, 189 ; may be changed, 190. Vesting— order effect of, 28. . Warrant — master's to consider, 136, 206; service of, 137, 207; under* writing, 139, 181. see master's office, Wastb — parties to bills to stay, 60; form of bills, 230, 280. Widow — of mortgagor, form of bill against, 276. WiFB— of party not to be examined by other side, 266. INDCX. 369 r of abatraot, lad, 102. ish detailed of Oourt of Wife — ( Oontinued.) may petition for custody of infant children, 269, 270 ■, in her own name, 2*70. may file alimony bill without naming next friend, 54 ; gets costs io de die in diem, between solicitor and client, 840* WnFUL— neglect and default injunction granted on, 88. master to take account of, 148, 164. Wills— jurisdiction of Oourt In cases of, 12. probate may be used, 266. ' costs of producing, 266. proving, when filed out of jurisdiotioa, 266, 26*7 ; certificate of filing, 267. WiTNissES— to be examined viva voce, 10. examination of, out of jurisdiction, 11 ; before master and examiner* 183, 163, 186 ; appointment for, 188 ; notice of, 188, 184. croes-examination, 184. rules on, 96, 188, 184. examination of, out of term, 188 ; in term, 189, 220 ; out of jurisdic- tion, 190. may be recalled on examination, 192; no articles to discredit, 192. depositions to be in first person, 192 ; court may order examination of 192, 198. act respecting, 268. affirmations when allowed, 268 ; who may administer, 263, 264. no exclusion for crime or interest, 264. no party witness for himself, 264. Woken— married, parties to suits, 46, 46. Writs — authentication of, 222. of arrest, 12, 260. of Fieri Facias and Yen. Ex., 262. of sequestration, 268. 207; under- APPENDIX OF FORMS. I..— Bills. 1 Address of, 273. 2 Oommenoement of, and of informations, 273. 9 Foreclosure, 274, 10 Foreclosure by assignee— prayer for sale, 275. 11 Foreclosure agaiust purchaser of equity of redemption, default in payment of interest, 276. 12 Foreclosure against widow and infant heirs of mortgagor, 276. 18 Redemption, 277. 14 For an account of the dealings of a partnership expired, 278. -n 4 ( (■ -V. 870 IHDKX. Bau— ( Conf jnumi) 16 For diflsolution of partoerahip, 278. 16 Speoifie performanee, written agreem«Dt, 279. 17 Speoifio performance, parol afpreement and part performance, 280. 18 To stay waste, 281. 19 To stay trespass in nature of waste, 282. 20 By person entitled to an equitable estate or interest and olaiming to use the name of his trustee in proseouting an action for bis lole benefit, 282. 21 By a person entitled to have a new trustee appointed in a case where there is no power in the instrument creating the trust to appoint a new trustee, or where the power cannot be exercised, and seeking to appoint a nenr trustee, 288. IL — Demubbebs. 22 For want of parties, 288. 28 For want of equity, 284. 24 For want of equity and want of parties, 284. » III. — Amswebs. 25 Form given in order XII., 285. 26 Of infants, 285. . 27 Disclaimer, 286. rV". — Repuoatiok. 28 Form prescribed by order XVIII., 286. V*— Petitions. Judges fiat on, 286. Notice of reading evidence, 286. 29 By solicitors for taxation of bill of costs, 286. 80 For delivery and taxation of solicitor's bill, 287. 81 For taxation of costs not in any suit, 289. 82 To change solicitor, 290. 88 For rehearing, 290. Oertificate of counsel on, 201. Consent of petitioner, 291. Fiat of Judge, 291. 84 Under 12 Vic. cap. 72, to haTe guardian assigned and li&di sold by private sale, 291. 86 To have a person declared a lunatic and a committee aj^pbinUd orer his person Mid property, 298. Note on, 294, 296. TI.— Nonon. 86 Of filing answer, 296. 87 Of filing replication, 296. X. % -^■ IHDBZ. m \ perforaiAnce, 280. Brest and olaiming D action fbr big m>I« ^pointed in a oaae sating the trust to onot be exercised, ud labdf Bold ittee a^poi&Ud Nonoc — ( Contimud) 88 Of production, 296. 89 To inspect papers produced, 296. 40 Of examination, 296. 41 Of hearing, 296. 42 of examination and hearing, 296. 48 of hearing on further directions, 296. 44 of settling minutes, 296. 46 of passing decree, 296. Vn . — AwiDAvrrs . 46 of service of office copy bill, 29'* . 4*7 notioe of motion, 29? . 48 decree, 298. 49 injunction, 298 . 60 subpoena, 298. SI petition, 299. 62 of having been served with notice of hearing, 299. 68 to prove bond debt, 299. 64 to prove bond debt, by personal representatives of bond er«ditor» 800. 66 to prove debt on a promiseary note, 800. 66 to prove debt for goods sold and delivered, 801 . 6*7 to prove mortgage debt, 801 . 68 on production, 802. 69 verifying account of personal estate, 808. form of account, 806. 60 verifying account of real estate, 806. 61 verifying receiver's account, 807 . form of, 328, 824. 62 of publication of advertisement, 807 . 68 of auctioneer, sale under decree, 807. 64 for guardian, 808 . 66 tot commission, 808. 66 for writ of arrest, 808 . 67 of plaintiff for final ordier of foreclorare, 809. 68 of execution, 809. 69 of justification by sureties, 809, 819. ▼m.— JUBAn. fO to answer, 809. *l\ to answer in the ease of an illiterate person, 810. 73 to affidavit, 810. 78 to affidavit, in case of illiterate person, 810. 74 short form of, 810. L J W ') irt' 872 INDKX. IX • — NoTioBS or Motion. 76 for decree, 810. 76 for injunction, 811. 77 to dittsolve injunction, 311. 78 for receiver, 811. 79 appeal from Master's Report, 312. 80 for order pro oonfesso, 312. 81 for guardian ad litem, 812. 82 to dismiss for want of prosecution, 818. 83 for leave to amend, 818. ■ < 84 for a commission to examine witnesses, 818. 86 for leave to examine de bene ete, 318. 86 to open biddings, 814. 87 for vesting order, 814. 88 to substitute sub purchaser, 314.< 89 for delivery of possession, 814. 90 to compel payment of purchase money Into court by purohattr, under decree and resale on default, 316. 91 for payment of money out of court, 316 . ' 92 for administration order, 816. X. — Appointmekts. 93 Judges, 816. 94 special examirters or deputy masters for examination of witnesses, 816. 86 to settle minuteH, 317. 96 to pass decree, 317. 97 master's warrant, 317. 98 " general warrant, 317. 99 " notice A., 817. 100 " notice B., 818. XI . —Miscellaneous . Bonds. 101 Bond on appeal tu Court of Error and Appeal, 818. 102 affidavit of justification, 319. 108 Bond on appeal to Privy Council, 319. 104 recital and condition of bond on appeal from county court, 320. 105 bond for security for costs, 320. 106 receiver's recognizance, 321 . 107 ." account?, 323. 324. 108 condition of recognizance by the guardian of the persons and pro- perty of male and female infants, 326 . Endorsements . 109 of office copy bill, 326. 110 " " for foreclosure and sale, 826. INDEX. S78 urt by purohaatr, itioD of wituesses, MiNOKLLANXODB — ( Oonttnued) 111 OD office copy decree, 827. 112 on answer, 827. 118 conditions of sale, 327. 114 decree directing accounts in administration suits, 328. ;16 acceptance of service of bill by solicitor, 828. 116 acceptance by solicitor for party added in the master's office, 82», 117 advertisement for creditors, 329. 118 " on sale, 880. 119 Bank manager^s certificate of non-payment, 380. 120 account for master's office of mortgage debt^ 380. XII. — BiLts OF Costs. 121 Plaintiff's costs of pro confess© mortgage suit, no parties added in master's office, 331. 122 Plaintiff's costs bill pro con. against two defendants, and parties added in master's office, 833. 128 Plaintiff's costs on further directions, 884. 124 Plaintiff's costs, against mother and infant, motion for decree, 886. 126 Plaintiff's costs for not proceeding to examination and hearing, 886. 126 Costs of the day at hearing or a court motion, 837. 127 Defendants' costs, bill dismissed for want of prosecution, 887. 1 28 Infant defendants' costs, 887. 129 Defendants* costs, bill dismissed at the hearing, 888. liSO Costs of proving claim in master's office by party added, 889. 18. ity court, 320.. \ ! persons and pro- A TOaONT* " PRINTBB BT LOTKLL AND GIBSON, TONQB STBEBT. J 1.