^^ IMAGE EVALUATION TEST TARGET (MT-SJ // ^/ ^s i< i^ 11.25 " Vi 12.2 S KS 12.0 6" V Oy^' Hiotographic Sciences Corporation ^ s£>^ 23 WIST MAIN STRin WIBSTM.N.V. USM (7I6)«72-4S03 o"^ t CIHM/ICMH Microfiche Series. CIHIVI/ICIViH Collection de microfiches. Canadian Instituta for Historical Microroproductions / Institut Canadian da microraproductions hiatoriquas T«chnical and Bibliographic Notet/Notas tacliniquaa at bibliographiquaa Th to Tha Inatituta haa attamptad to obtain tha baat original copy avaiiabia for filming. Faaturaa of thia copy which may ba bibiiographically uniqua, which may altar any of tha imagaa in tha raproduction. or which may algnificantly changa tha uauai mathod of filming, ara chackad balow. D D D D D Colourad covara/ Couvartura da coulaur I I Covara damagad/ Couvartura andommagAa Covara raatorad and/or laminatad/ Couvartura raataurte at/ou palliculAa [~n Covar titia miaaing/ La titra da couvartura manqua r~n Coloured mapa/ Cartaa gAographiquaa an coulaur Colourad ink (i.a. othar than biua or blaei :/ Encra da coulaur (i.a. autra qua blaua ou noira) □ Colourad pifataa and/or illuatrationa/ Planchaa at/ou illuatrationa an coulaur Bound with othar matarial/ RallA avac d'autraa documanta Tight binding may cauaa ahadowa or diatortion along intarior margin/ La r« Ultra aarrAa paut cauaar da I'ombra ou da la diatortion la long da la marga IntArlaura Blank laavaa addad during raatoration may appaar within tha taxt. Whanavar poaaibia, thaaa hava baan omittad from filming/ II aa paut qua cartainaa pagaa blanchaa aJoutAaa lora d'una raatauration apparalaaant dana la taxta, mala, loraqua cata ttait poaaibia, caa pmg— n'ont paa «tA fllmiaa. Acfditlonal commanta:/ Commantairaa aupplAmantairaa; L'Inatitut a microfilm* la maillaur axamplaira qu'il lul a At* poaaibia da aa procurar. Laa dAtaiia da cat axamplaira qui sont paut-Atra uniquaa du point da vua bibliographiqua, qui pauvant modifiar una imaga raproduita, ou qui pauvant axigar una modification dana la m4thoda normala da filmaga aont indiqute ci-daaaoua. I I Colourad pagaa/ D D D D Pagaa da coulaur Pagaa damagad/ Pagaa andommagAaa Pagaa raatorad and/or laminatad/ Pagaa raataurAaa at/ou paiilculAaa Pagaa diacolourad, atainad or foxad/ Pagaa dAcolortea, tachatiaa ou piquiaa Th po of fill Oi ba th aU ot fir ai< or □ Pagaa datachad/ Pagaa d*tach*aa rri Showthrough/ Tranaparanca Quality of print variaa/ Qualit* InAgala da I'imprasalon Includaa aupplamantary matarial/ Comprand du material auppKmantaira Only adMon avaiiabia/ Saula MItion diaponlbia » Pagaa wholly or partially obacurad by arrata alipa, tiaauaa, ate, hava baan rafiimad to anaura tha baat poaaibia imaga/ Laa iMgaa totalamant ou partlallamant obacurclaa par un faulllat d'arrata, una palura, ate, ont *t* filmAaa A nouvaau da faqon A obtanir la maillaura imaga poaaibia. It ah Tl wl M di ar b( rll ra m ThIa itam la fllmad ct tha raduetion ratio chackad balow/ Ca documant aat film* au taux da reduction indiqu* cl-daaaoua. 10X 14X 18X 22X 26X 30X y 12X 18X 2DX 4«V 28X 32X The copy filmed hare has been raproduced thanks to tha ganaroslty of: D.B.WtldonUbrary UnivMriity of Wtsttm Ontario Tha imagas appearing hare ere the beet qur'Hy poseibie considering the condition end k«c r :ty of the originei copy end in Iceeping with t.:e fiiming contrect specificetions. L'exempieire fiim* f ut reproduit grice A ie gAnirositA de: D. B. WcMon Ubnry Univanity of WMtam Ontario Les imeges suiventes cnt AtA reprodultes evec Ie plus grend soln, compte tenu de Ie condition ef de la nettetA de l'exempieire film*, et en conformity evec les conditions du contret de fllmege. Originei copies in printed peper covers ere filmed beginning with the front cover end ending on the lest psge with e printed or lliustreted Impres- sion, or the beck cover when epproprlete. All other originei copies ere filmed beginning on the f iret pege with e printed or lliustreted Impree- sion, end ending on the i^st page with e printed or lliustreted impression. The lest recorded frema on eech microfiche shell contein the symbol — »• (meening "CON- TINUED"), or the symbol ▼ (meening "END"), whlch«!«/er epplles. Meps, pistes, cherts, etc., mey be filmed et different reduction retios. Those too ierge to be entirely included in one exposure ere filmed beginning In the upper left hend corner, left to right end top to bottom, es meny fremes es required. The following diagrams illustrate the method: Les exempleires origineux dont Ie couverture en pepier est ImprimAe sont filmte en commenpant per Ie premier piet et en terminant soit par la dernlAre pege qui comporte une empreinte d'Impresslon ou d'lilustretion, soit per ie second piet, seion ie ces. Tous les autres exempleires origineux sont f llmAs en commen9ent per la premiere pege qui comporte une empreinte d'impresslon ou d'illustretion et en terminent per Ie derniAre pege qui comporte une telle empreinte. Un dee symboies suivsnts appsrattra sur la dernlAre imege de cheque microfiche, seion Ie ces: ie symbols — ► signifie "A SUIVRE". Ie symbols y signifie "FIN". Les certes, plenches, tebieeux, etc.. peuvent Atre filmte A des teux de reduction diff^rents. Lorsque Ie document est trop grend pour Atre reproduit en un seul clichA, ii est film* A pertir de i'engie supArieur geuche, de geuche * droite. et de heut en bes. en prenant ie nombre d'Imeges nicesseire. Les diegrammes suivsnts iiiustrent Ie m^thode. 1 2 3 1 2 3 4 5 6 iMB TH S( OF THE PRACTICE or THE COURT OF CHANCERY FOB ONTARIO. ,1 WITH ;' u'' I / / . SOME OBSERVATIONS ON THE PLEADINGS IN THAT COURT. i COMPILED BY ' WILLIAM LEGGO, OF OSGOODE HALL, BARRISTER-AT-LAW, LATE MASTER AT HAMILTOM. 12: PUBLISHED FOR THE SUBSCRIBERS. 1876. ■^^^ 7 t r i U k» « ( » r,< ' r ', \ I * : 1^ \ I I // / V .N ♦ " ( ( I I' SEP 3 1968 i t oT^o^r^vf (J /A ^ I) 7 n f 11 -• ! ? 'i ■ rt •nrt ^ .-I ivi a :a i: ■ * - * tj. J t i TO ^he ionorat.lt |(,h„ (Eoj,f„g ^^^^ >8«f, CHANCELLOR iJ F '» V r A R r o. ^^i fogiiliUii .'iikI of'th iK'ss in tl from fori: iin])ort{iu I'arliuine A suit, Ji petition (ho relief is called ji li' the f |»artnko oi li'c'tioi), .sii is offered I lie i)roi)ei itself or ot which the /nation. T instituting ' "Ancient a per Lord " Ld. Red. 82 THE PRACTICE OF THE COURT OF OlIANCKRY, FOR UrrEll CANADA. CI I A IT I :k I. THE ( D.MMKNCKMK.NT OF A SflT. The practice (^1" the Court of Cliiiiicerv, and (»r its various offices, is regulated by rules laid down in Acts of I'ai'lianicnl, in tlio (leiieral Orders of tlic Court, ])asscil oi* jtroniuli^atcd from lime to time, in the Ke^idati(»ns of the Judges Ibr the conduct of business in their chambers, and of the Reifistrars of the Court respecting the transaction of busi- ness in their office , and by custom or usage, to be ascertained generally from former decisions of the Court'; the decisions of the (vourt arc also important ij) determining the construction to be |)Ut upon the Acts of Parliament, (leneral Orders, ami IJegulations. A suit, on behalf of a subject, is ordinarily commenced by prelerrlng a petition, containing a statement of the [)laintill's case, and i>raying the relief which he considers liimself entitled to receive. This petition is called a JIKI. If the suit is institiited on behalf of the Crown, or of those who jiartako of its prerogative, or wJioso rights are under its jtarticular pro- tection, such as the objects of a pulilic charity, the matter of comjdaint is ofiercd to tlio Court, not by way of petition, but of information, by the proper otiicer, of the rights wliich the CroWn clainis on behalf of itself or others, and of the invasion or detention of tliose rights for which the suit is instituted. ^ This proceeding is then stj'led an Infor- iimtion. The rules of practice incidental to these two methods of instituting a suit in Equity ditter .so little from each othei* that, in the ' "Ancient and iinifonn practice constitutes the law of the Court, as much as a positive order," per Lord Etdou, 2 Mer. 'i. » Ld. Red. 22 ; Story Eq. PI. 8. 8. ■■A :i. 2 IHE rOMMENTEMKNT OF A SUIT. !l enduing Treatise, what i> nai Ituth. unless where a distinction is speritirally pointed out. Where, howevei-, the relief sought t<» he (ditained is th«' adiiiinistra tion ol' the (-state (tf a (h'ceased ])ers(»n, a summary and inexpensive practice has l>t'en established by uui" Orders, whi«'h will Ih< fully noticed hereafter. Again, undei an Act ot Parliament,' a very convenient lurm of application to the Court has been provided, ibr cases >vhere the parties, agreeing upon the facts that forni the foundation of their claims, are desirous of obtaining a judicial decision upon the constructioii of an instrument, or upon almost any point of law resulting from the ad mitted facts. In eases of this description, the parties are enabled, without going (hrough any tbrms of pleadings, at once to submit the case that thej' have agreed upon for the decision of the Court. The several forms of proceeding enumei'aled above relate to the original jurisdiction of the Court, and an^ different means by which the suitor may call into exercise some portion of that original Jurisdiction in his behalf. There are a great inimber of Acts of J'arliament — many of them of recent enactment — under which statutory powers are con- ferred U])on the Court. ALany oi' these Acts point out the particular mode by which relief (hereunder is to be sought from the Court; and it may be stated, as a general rule, that a person seeking the aid of the statutory jurisdiction must commence by presenting a petition, which differ.s in some important ]»articulars from the bil] above mentioned, and is not regai'de, 240, 244. * 11 Rep. m B. * The King y. Countess Boicager of Arimdel,Uoh.l(Bi Attorneij-Generalv. Vernon. 1 Vern Q?/, 370: 2 Ch. R. 863: 1 Eq. Cu. Ab. 75, pi. 1 ; 133, pi. 16 : and see the cases cited )r Beav. 2fc3, and the Judgment, p. 287. Pi P m ! ■jod- 4 PERHONS HY WHOM A SI'IT MAY UK INRTm'TKIt. to lu< int'oniMMl tli:il .iii iiilniNion lias li«n entei-lained ; hut in such eases, it' any (|iieHtion of hiw arises, th«> Conrl will put it in the course of trial hy ai'oiirt of \m\\\ and rt'tain the information till the residl of such trial is known.* In all ( a.-^es where the ritchts of tlu< (^ueen, or of those who parlak*! of her |>reroijative. uw the suhj«'ct of th«' suit, the nanu^ of the (/ueen is not made use of as tlu* party ('omplaininn: ; hut th(< matter of complaint is ottered t«) the I'ourl hy \\",)y ol information ,u;iven hy th(^ proper ollicer. That otlUer is the Attoriu\v (Joneral, or, if the ollice of Atlorney-(!(>n{"ral should happen to he vacant, the Solicit assii^ni-d to the (Jutrn, and may also he ji;ranted oi-assiujuod hy her to another person ; and, in the latter (ase, the s^rantet^ nuiy either stie for it in his own m»m(>, or in that of the (^ueiMi;" hut if he sues in his own name, he must make the Attornev-(ienerat a party to his suit. In lutli/i V. IVdsfd/l.* .1.. haviu!^ oullawi'd /)*., hrou^'ht a hill ai,Minst C., a trustee for /).. with rt'^neit loan annuitv. (<» suhiecl. this annuity t(> I a. •' V tlie plaiulilVs ilehl ; ami the Court lu'ld, that forasmuch as hy the out- lawrv all tlu' defendants inlei'csl, as well e(piilahK> as lei;al, was vested in lln> Crown, the plaintilV must not oidy ii^et a ^i-ant llu-reof troni the Crown, hut must make the Attoi-ney-CJcneral a party lo the suit."" In like manner, tlu' Atlorney-(«eneral may exhihit intormations on hehalf of individuals who are (H)nsidered lo he under the ])ro(ee.tioii of the Crown as ixurns patria- ; such as tlio ohjoets of ,ii;eneral charitioH, idiots, und lunatics. Moreover, this privileij;o of the Attorney-Cfcneral is not eontined to suits on hehalf of charities, strictly so eaUed ; hut lias hcen held, in many instances, to extend lo cases whore tuntls have boon made applicahle to le<,fal and f^eneral ])urposes.« In the case of the were ' Attornty-Otuerul to (lie Prince of fyaltn \. iSir ./. SI. Au(i!/ii,\\M\\v/. IfiT. niul Iho viwh 'hiTP citi'il ; (•< " al!,s" ciuf, 4 Bur. iViT. » Djor. 1 PI. 7.S: Koilw. IC.O; 5 Hac. Al). til. I'lvrog. !•'. .! ; MiUn v. mUiamf, 1 1'. Wins. 249, 23J; Earl 0/ iitt{fon/ v. liuckUy, 'i Vok. S. 170. Isi. « 1 P. Wm». 445. * Haifward v. Fru, ibiil. 44(5 ; coo also Htx v. Foirhr, Bimb. .3S. • Attorney- General v. Broini, 1 Swanst. 2»55; Attorney- Gtneral v. Cormralioii of Shrtwsbvry, Bcav. aao, «7; Evan v. Voriwation of Axon, ait Beav. 144 : Jur. N. S. 1361. TlIK til KKN s ATTOUNKV-OKNKUAI.. A(tonu'i/-(i«'iu'r«'lliii^ tin- I'fstiliilioii <»r nmiH-y all<';^<'<| t<» liavi* Imtii irn properly upjdird out of I'mids raised lor llic ndifl'df the poor, l>y inraiis ol' ralrs and asst'ssiiH'iits, Sir .1. I;. I\ni;^lit IJnicr, N'.C.said that In- apj)rrlii'iid<'d tlj«' ruU' was, ''tlial wlicrc property, allecti'd It}- a trust fur piildie pur- pose >H, \H in the hands of those who hold it devoted lo that, trust, it is the privih^j^e <»l' tlie pidilie that lln' ( Vown shoidtl he entith'd t<» intervene I)}' its otlie«'i', lor the purpose ol'ussertin^, nn liehali'oi' the pnMie ;^ene lO rally, that piihlie interest and that pnhlic ri^hl, which prohalil_^- i individual could he fuuntl willliii^ cllcctually loasserl. even il'lhe interest were such as to ;dl))ly to cases of idiots, because in contemplation of law they never can acquire their senses; they are, therefore, not considered necessary parties to jtrocecdings on their behalf 2 In all cases of informations which immediatel}' concern the rights of the Crown, its officers proceed upon their own authority, without the intervention of any other person ;3 but where the informations do not imnr diately concern the rights of the Crown, they generally depend upon the relation of some person whose name is inserted in the informa- tion, and who is termed the Relator.* This person in reality sustains and directs the suit, and he is considered as answerable to the Court and the jnirtles for the propriety of the proceedings, and the conduct of theni ;^ but he cannot taUe any step in the cause in his'own name, and independent of the Attorney-Geneial. Where, therefore, in the case of the Attorney-deneral v. Wn'ylit," notice of motion was given on behalf of a relator, and an objection was maorafc(i with, the informa- tion ii;iven to the Court l»y the othcer of the Crown, they form toj^ethe; an information and hill, and aiv so termed. In some i-espects, however, the}' are considered as distinct proceed i n i;s ; and the Court will treat them as sucli, by dismissini^ tlie hill antl retaining the information, even though the relief to be granted is dit!erent from that prayed. Thus, in Attorneij-Genend v. l7/vVf«,' where the record was both an infoiination for a charity and a bill, and the whole of the relief specitieall}' ])rayed was in resjicct of an alle*or in the trust |)ro|)erty, which he did not sueceed in establishing, Lord (Jitloid. .M. K., althoui^h lie dismissed the bill with costs, retained the information for the [)urpos«' of regulating the charity. It is, moreover, necessary that the ju'rson Joined as plaiutiti' should have some individual interest in the relief sought to bo obtained by the suit : for in the case of the Attonwy-Ueneral V. The East India Company,''^ Sir Lancelot Hhadwell, \ . C.. allowed a demurrei" to the whole record, because pei'sons were made plaintitls who asked nothing for themselves, and did not show that they were indi- vidually entitled to anything; as, however, there a])peared a case for relief, he gave leave to amend for tlio purpo.se of converting the record into an information only, and directed that the plaiutitfs should remain on the record in the charactei* of relators, in order that they might be answerable for costs. But although it is the general practice, where the suit immediately concerns the rights of the Crown, to proceed without u .elator, yet instances have sometimes occurred where relators have been named. In such cases, however, it has been done thi'ough the tenderness of the officers towards the defendant, in order that the Court might award costs against the relator if the suit should appear to have been impro- perly conducted : it being a |>rerogative of the Crown not to pay costs to a subject.-' It ha.s been said, that as the Queen, by reason of her ))rerogative,does not pay costs to a subject, so it is beneath her dignity to receive thorn; but many instances occur, in the cour.->e of practice, in which tho Attorney -General receives costs. Thus, when collusion is suspected between the defendants and the relators, the Attorney-General attends by a distinct solicitor, and always receives his costs. In Attorney-General V. Lord Ashburnham,* Sir John Leach, V. C, said, in reference to the ' 1 Rugs. 226, 233, 2:i'>. ■' n Sim. 380, 380. ' Sec 3 Bl. Com. 400. But by Pro. Sta. c. 91. Con. Sta, U. C. « fi and 7, tho Cmwn pays. a« well as recovers, costs. M 9. & S. 394, 307. f IjP H I'K.HSdNS HV WIIhM A SlIT MAY IlK INSTITI TKI>. si^sfi'li'd |>riiui|>lo that tlir Crown can ni'illu'i- |»ay nor rrceivo costs, " I find no such principU) in (*(»urts ol' Mqiiity. 'Vhr Attorncy-CJcncrul constantly roccivt's costs, where he is niay the Attorney (ieneral. costs has I' I'cen rre(|iienlly awai'ded him in interlocutory nialtiM's, independently of the relator.""^ And in tlu' case (d'lhe Attonivii-dcncnil V. T/u: CorponitiDit of Ar^y/*/.;/*,:' I^ord Cotlenhani said, "Tlu^ pi'inciph' that the Altorney-tJeneral never reci'ives nor pays costs, may he moditied in this way. nanudy, that the Att, however, ]»ro- vision is made tor the payment ol'costs l»y or to the Crown, in |>roceed- iui^s instituted, at'toi' the passiiii>- of llu' Act, on its hidialf, in matters relatiui;- to the I'oveniie.' Our statute, however, extends to every descri|»tion of case. 'i'he pi'o|iriely of namini;' a ielat(U' for the, pur|)ost^ of his> hein^' answerahle for costs, and the oppression arisini; Iron) a contrary prav'tiee, wert' pai'ticularly noticed hy Huron I'errot.in a cause in the Kxehecjuer, Attoruti/d'ciKriil v. hh.i\-' \\\ which easi' no I'dator was named; and thou!;h the d«'fendanls tinally pr«'vailed, they W(>re put to an expense almost e«[ual to the value ot tlu' pro|iiM(y in dispute. The introduction of a relator, howevei*. in ca>-es in which thi' information is merely concerning" the ri_::;hts ol the Crown, is a mere act of favoi- on the part of the Crown and its utlici-rs ; and it appears to have Ik'oii tlu^ opinion of Ijoi'd KIdon that, even in infoi-mations concei-nini;; charities, tlu' introduclicui of a relator was an indul^TUce on the part of the (-rown. which, thoUi;l» usual, mii^ht he withheld. Thus, in The Mat hr of the Ik'dford Charitij^' in speakinji; of informations concorninii^ charities, his Lordshij) said, ''there is no douht that, thou_ii;h a relator is coinmonly i'e(^uired for the j)urpose of securing- costs, the Attoi-ney-tJeneral may, if he pleases, ])roceed witlnuit a relator." This (lirtuiii a)>))eurs to he at variance with the opinion of Lord Thurlow. in the AttonH'ij-di'neral v. > Mocjffrhlge v. Thackwell, 7 Vfs. .'JCi. SS; A/lornfy-Oi'inral v. J.i'iri-i, S IJfav. ITO. ■•■ Soo. however, Itniiteij v. Macdoinild, l.*> Sim. (!, 1(1. s i M'N & (J. 817, 2> iMiint, S. C. bcforo tlip M. If., 1-2 Hoiiv. 171, and i>n deuiurriT boforo House of Lords, 1 II. L. Cus. 471, and Ld. C'otlcnhiims coninu'nfs on flit- fuso, aM'N. & (1.271; Attorney- (ient'mt v. JJrain-rn' Co., 4 Ueav. itCKi ; Ware v. (himberletjf, at Beav. .'JlO; Kane v. Jfaiile, 2 S. & (J. :v.n ; S. t;., on appeal, noni. Kane v. Reynolds, 4 DeO. M. & U. 505, 5«!t : 1 Jnr. N. S. 148. « Attorney-General v. Hanmer, i I)e G. * J. 2<)5: ,'> Jur. N. S. COT; and see Baver v. Mitford, 9 W. R. 135 ; See also 24 and 25 Vic. c. !I2, h. 1, in cases as to aucccsslou duty ; and 93 and 24 Vii. c. .'M, 89. 11. 12, in proceed Injjs by petition of right. » Ld. Red. 23, n. (g). « 2 Swanst. 680. TIIK (^1 KKN S ATToHNKV (iKNKil Al !) Oi/liwitr,* in wliicli cjiHi) his Ijoi'dsliip is iT)i(»rU'<| to luivc cxpiVMscd liin liflift' tlint iiii iniuniiiilion willioiit ii rciator would not do; :iiid llic ii|)ini()ii of Lord 'riiiii'low upon lliis poiiit ii|)|>oai's to liuvt! Iktii adopted l»y liord H('d('sdal('.=' I'poii the whole, tlierelore, it, seems liial aillioilifli ill eases of inroniiat ions lor eliarilies, the ^«'iieral and alinosl universal practice is (o liav(^ a relator lor the |Uii'pose of answering the costs, yet llii'riile is not imperative; and the A(toriiey-<«<'neral, as the ollieer of the Crown, may, in the exercise of his discretion, exhihil hiicIi an iiiDirniation without a relator, in coiilirmalion of this ii is lo \nt uls'rved, that in inrormatioiiH under th<^ lormer statutes,'' lor j^ivin^ additional liieilities in ap|)licat ions to Courts (»!' JVjuity rei^ardin*^ tin* iiiaiia,L''emenl of estates or funds IK-Ionniiii^ to charities, it was not tluf practice to have u relator. .vll ]»ei'sons who are not under any of the h'tjal disahilities alter inen- tioiied, may he relators in informations; hut a written authority, si/^neil hy them, permitting;" their names to luf used, must he lile<| with the iiilormation.' There is no hucIi rule, iiowevi-r, in this Province. It has not hecn deemed necessaiy that relators should he interest«!d ill the charities eoncerninj^ wjiich they institute proceedings;' and the Court was in tlie hahit, in the times when a much .strictt;!" system of practice |irevailed than at present, of ndaxin;^ several of its i-ules on liehalf of l>i' filed tho day alXer llio inlormtition, Attorney -General v. Murray, lU W. \(. (15. V. C. K. Where the solicitor had given the relator an tiulcninity a<.,i'. V. I'oop. 7. '• Atforney-Oeneral v. Vivian, 1 Kuss. 220, 23(i. See, however, Attorney-(Jentral v. Bucknall, i Atk. 328; Corporation, ajt iSouth Molt(m v. Attorney- General, 5 II. .'L. Ca. 1. " Attorney-General v. Bucknall, 2 Atk. 828 ; Attorney-General v. Wliiteley, 11 Veu. 241, 247 ; Attor- ney-General V. Oqlender, 1 Ves. J.246; Attorney-General v. Middlefon, ^\e». 8.327; Attorney- General V. Brerelon, ib. 425 ; Attorney- General v. Mayor of Utamford, 8 Swanst. (591 ; Attorney- General V. Parker, 1 Ves. 8. 43. ■ )Mler V. Hanger, 2 Bulst. 134; LU. Red, 100. 10 PERSONS BY WHOM A SUIT MAY BE INSTITITED. die, or if there in hut one, and that ivhitor (liojs, the suit is not abated. It is, howcvci^ in'CguUu' for the solicitors of a rehitor to proceed in a charity inlbrmation after the death of the reUUor ; and the Court will not permit any furtlier proceedings till an order has been obtained for liberty to insert the name of the ncNV relator, and such name is inserted accordingly ; otherwise there would be no person to ])ay the costs of the suit, in case the information should be deemed improper, oi* for any other reason should be dismisssd." Where, however, a relator dies, the ai)plication for leave to name a new relator must be made by the Attorney-General, or with his consent, and not by the defendant; othei- wise the defendant might choose his own prosecutor.^ With respect to informations on behalf of idiots and lunatics, it seems that it is not only necessary that the lunatic should be a party, but also that there should be a relator who may be resjionsibleto the defendant for the costs of the suit. Thus, in the ease of the Attorney-General v. Tyler, mentioned in the note to Lord Redesdale's Treatise, ^ it appears that the lunatic had been made the relator ; but that on a motion being made that a responsible relator[should be appointed, Lord Northingtou directed that all further proceedings in the -ause should be suspended, until a proper person should be named as relator in his stead. This appears to be the same cause which has been before referred to as reported in Mr. Dickens' Reports.* in which, upon the hearing, it was objected that the lunatic was not a part}* to the suit, although he was named as relator; and the cause was consequently ordered to stand over, with liberty to amend by adding parties, and, if so advised, to change the information into a bill. The object in requiring that there should be a relator, in informations exhibited on the part of the Attorney-General, is, as we have seen,* that there may be some person answerable for the costs, in case the}- should have been improperly filed. Thus, in th(? case of Attorney-Gaieral v. Smart,^ before referred to, where the information was held to have been unnecessary, and in contradiction to lIi. \A, Lhe costs wero ordered to be paid by the relator. But in the f:;>iv AicGrney-General v. Oglender," before referred to, where the relator "r ,cd upon a particular construction of the will of the person by whom the charity was founded and in which there was ^considerable ambiguity, although he failed in » Ld. Red. 100; Attorney- Oeneral v. The Haberdashers' Company, 15 Beav. 397. 2 Ld. Red. 100, n. (e). Attorney- Otneral v. Harvey, 1 lur N. 9. 1062; Attorney- General v. Pluh tree, 5 Mad. 452. 3 Ld. Red. 29; 2 Eden, 9.%. < Ante. * Ante. « 1 Ves, S. 72 ; Attorney- Oeneral v. Parker, S Atk. 576, 579 1 1 Vos. 9. 43. ■ 1 Ves. J. 9i&, satisfying ill form at i liable to costs to h an inform jiroper to is shown tlic relato And in their cond costs; 2 aiK ta.xed as 1 people woi cases they the costs o sanction o preparing out of poc informatioi In the c instance m charges, an the cau.se, j of St. Thon funds belon made ; first extra costs, cause, prop( be charged on the prop dale, M. R., appears thai to impeach justify a sj: entitled to h ' Attorney Get ' Beames on C( ' Attorney -Get General v. Ves. 36, 88; ^ Attorney-Ger ' Attorney- Gen ° A.ttorney-Oen ■ 4 Beav. 897, 8 THE QUEEN S ATTORNEV-flENERAT,. 11 satisfyiiifT the Court that his constniction was tho rii^ht oiu' and tlie information was consequently disnnssed. tlie Court did not nialvc him liable to the costs of the defendant, althoiiixh it refused to permit the costs to be paid oiit of the funds of the charity. And in general, where an information prays a relief which is not granted, but the Court thinks l»ro])er to make a decree according to the merits, so that the iid'ormation is shown to have had a foundation, although the relief is not such as the relator prayed, the relator will not be ordered to pay the costs.' And in general, where relators conduct themselves ])roperly, and their conduct has been beneficial to the charity, they are allowed their costs ;2 and it seems that, in some cases, the costs of relators will be taxed as between solicitor and client, on the principle that otherwise people would not come forward to file informations ;3 and in special cases ihey will be allowed their charges and expenses, in addition to the costs of the suit.* But where they incurred expenses without the sanction of the Master, in obtaining information lor the purpose of preparing a scheme, the}' were only allowed their expenses actually' out of pocket; 5 and where a petition would have done instead of an information, the relators were refused their costs. « In the case of Attorney-General v. Kerr,'' an order was in the first instance made to refer it to the Master to tax and settle the costs, charges, and expenses of the relator, of, incidental, and preparatory to the cause, properly incurred ; to be paid by the trustees of the hospital of St. Thomas for the time being, or the treasurer thereof, out of the funds belonging to the hospital. To this order two objections were made ; first, that the decree was wrong, so far as it gave the relator the exti'a costs, charges, and expenses incidental and preparatory to the cause, properly incurred ; secondly, that these extra costs ought not to be charged on the whole property of the hospital generall}', but only on the property which was the subject of the information. Lord Lang- dale, M. E., said, "on considexing the cases which have occurred, it appears that the relator in a charity information, where there is nothing to impeach the propriety of the suit, and no special circumstances to justify a special order, is, upon obtaining a decree for the charity, entitled to his costs as between solicitor and client, and to be paid the ' Attorney General V. Bolton, SAneX.SSlO. ^ Beames on Costs, 14 ; Attorney- General v. The Brewera' Company, 1 P. Wms. 376. ^ Attorney- Generals. Taylor, cited in 0«6or??c v. ZJennc, 7 Ves. 424 ; sec also ib. 425: Attorney- General v. Carte, 1 Diclt. 113; Beameflon Costs, App. No. X,, 229; Moggridge v. Thackwell, 7 Ves. 36, 88; affirmed by H. L., see 13 Yes. 416 ; Attorney- General v. K(rr, 4 Beav. 297, 303. * Attorney-General v. Kerr, vbi sup. ' Attorney- General v. The Ironmongers'' Company, 10 Beav. 194, 196. ' Attorney-General v. Berry, 11 Jur. 114. " 4 Beav. 297, 801-2. 12 I'KHSO.VS HV WHOM A SlIT MAY BK INSTITITEU. If^ diffbrenc'c Ijctwccn the amount of such costH unci tlu' amount of the cost^ which ho may recovei* irom the deriiKhints, out ol' tlie charity ostalf There may he H{)cial cases in which the rehitur may be entitled li charges and iixpenses, in addition lo his costs of the suit as between solicitor and client; but it a]i|)ears to me that such cases must depend upon their peculiar circumstances, to be hroni^ht forward and establishci by evidence on proper occasions. Upon the second point, J tind that there are several cases in which the costs to be j>aid by the trustees ot a charity have lieen ordered to l»e paid out of the funds of the charit\ generally; but the trustees objecting, it ap|)ears to me more regular and proper, in the first instance at least, to charge the costs which fall upon the charity estate on the fund recovered by the information, or on the estate which is the sui)Ject of the suit." The decree was accordingly varied, and the relator, instead of being allowed his costs, charges, and exjjenses of, incidental, and ])reparatory to the cause, pro])erly incurred, was only allowed his costs as between solicitor and client; and the cosl- and sums which were to be paid by the defendants the trustees, instead of being directed to be paid out of the funds of the hos])ital, were mudf a charge on the property which was the subject of the suit, and ordered to be raised by sale or mortgage thereof.' As the principal object in liaving a relator is, that he may bo answer able for the costs of the proceedings, in case the information shall appear to have been improperly instituted or conducted, it follows, as a matter of course, that such relator must be a person of substance, and if it i:^ made to appear to the Court that the relator is not a responsible person. all further proceedings in the information will bo stayed, till a proper person shall be named as relator.^ It is to be observed, that an information b}' the Attorney-CTcneral without a relator cannot be dismissed for want of prosecution ; it is his . privilege to proceed in what way he thinks proper ; but an information in his name by a relator is subject to be dismissed for want of prosecu- tion with costs. " This was the practice before the Charitable Trusts Act, 1853, IG & IV Vic. c. 137. Under that Act. no proceeding can be taken witliout ihe conaeut of the Charity CommissiODcra, except by the Attorney-Generatl actiujf ex officio, or by adverse claimants; sec s. 17. " Attm-ney-Oemral v. Tyler, 2 Eden, 230; sec also Attorney -General v. Kniqht, 3 M. & C. IW It is presumed, that the same rules for determining wlio is a "person of substance," applv here as in the ease of next friends of married women : as to wliom, see post. There is a reported case in which a relator was required to give security for costs : sec Attortify- General v. Skin ners' Co., C. P. Coop. 1, 5 ; and see Attorney-General v. Knight, 3 M. & C. IM. It seer point, wh pal court! not matte has now behalf of (Ion, clain tlefendanti al'ogcd wi denuii-i*er contended was not cr least, that of alleged demurrer uamelv, tl as co-plain after the another bi before, am overruled firmed by that occasi eases that sovereign for it is ( remedy: 1 own behal of a foreig eonfined t ' Bar day v. 1 Ves. J. = The. King also Citi Dolde.r i :»1, 3.38 ; ^ KingqfSj * Ibldsm: t Wheatlei ' 2 Bligh, N post, on 1 GOVERNMENTS OF FOREIGN STATES. 18 Section II. — Govcmments of Foreign Staffs. It seems to have l)een considered by Lord Thiirlow as a doubtful j)oinl, whether the sovcrcif^n of a foreign state could Hue in the munici- |):d courts of Eui^land, or whether (he claims of >uch a person were not matter of appiifiit ion from state to slate' Tlu point, however, has now been determined in the altirmative.^ Thus, a bill was filed on behalf of the King of Spain, and of two other persons resident in Lon- don, daimincj some property which had been received by one of the defendants, under a treaty between France and Spain, and which it was alleged was the property of the King- of Spain. To this bill a general rk-nuirrer was put in ; and amongst other grounds of demurrer, it was contended, that the King of Spain being a foreign absolute sovereign, was not capable of maintaining a suit in a Court of Equity here, or at least, that he was not i-ai)able of maintaining a suit for the enforcement of alleged rights belonging to him only in his royal cluiractcr. This demurrer was allowed byLord Lyndhurst, but upon a ditVerent ground, namely, that the parties who had been joined with the King of Spain as co-plaintiffs had no interest in the subject-matter of the suit ;' and after the allowance of the demurrer, the King of Spain alone filed another bill against the samt' defendants, for the same purposes as iiofore, and the defendants demurred again; but the demurrer was overruled by Lord Lyndhurst,* and his Lordship's judgment was con- tirmed by the House of Lords on appeal.^ In giving judgment upon that occasion. Lord Kedesdale observed, '' This is one of the clearest cases that can be stated. 1 conceive that there can be no doubt that a sovereign may sue. If he cannot, there is a right without a remedy ; ibr it is oidy by suit in Court that the respondent can obtain his remedy: he sues, as every sovereign must sue, generally, either on his own behalf, or on bejialf of his subjects." But it seems that the right of a foreign sovereign to sue in the municipal courts of this country is lonfined to those cases in which it is sought to enforce the private F \ t 1» -3 '-1 ' Barday v. Russell, 3Ves. .T. 434, 4;{l ; see also The Nabob of the Carnatic v. East India C'owp'y, 1 Ves. J. 371, where the authoritii's upon this point are collected. 2 The Kincr of Spain v. Machacio, 4 Riiss. 2i5, 'HiH ; Ilullett v. Kin^ of Spain . 2 Bligh, N. S. 31 ; see also Cttijqf Berne v. Bank of Enqtand, 9 Ves. 317; Dolder v. Bank of England, 10 Vee. 352 ; Bolder v. Lord nunttngfietd, ll'Ves. 'iH."}; King of the Tivo Sicilies v. ]i'illcox, 1 Sim. N. S. 301, 3.^2 ; U. S. of America v. Prirleau, 2 H. & M. 659 : 11 .Jur. N. S. 792. ^ King of Spain v. Machado, 4 Ritss. 225, 23(!. * JbidSGO: Bee also The Columbian erly • Per L. J. Turner, in Emperor of Austria v. Day, 3 De G. F. & J. 217, 251, 852: 7 Jur. N. S. 639,644. ' 9 Ves. 347; and see Ddder v. Bank of England, 10 Ves. 353; Bolder v. Lord Uuntingfield, 11 Ves. 283. ' Emperor of Austria v. Daij, 2 Giff. 628 : 7 Jur. N. iS. 483 ; 3 De G. F. & J. 217 : 7 Jur. N. 8. 639. * Taylor v. Barclay, 2 Sim. 213, 220-3. • GOVERNMENTS OF POREION STATES. 15 pleaded merely bccaiis^^ it is jtvcn-nl, iuid the Court must tnkc it ju.»t as it there had been no >uch avoimi-til on thf record. And, upon the same principle, it has been held that the English Courts will not entertain a !,uit for matters arising out ofrontraets entered into by individuals with the the defendants , therefore, where a bill was filed by the government cf the State of Columbia, and by a person describing himself as a citizen of that state, and minister plenipoten- tiary for the same to the court of his Britannic Majesty, and residing ill No. 33, Baker-street, Port man square, in the country of Middlesex, Sir John Lead), V. C, held, that the bill could not be sustained; be- cause there was no public ollicer named who was entitled to represent the interest of the state, and upon whom process could Ik' served on the part of the defendants, in ca.se they were advised to tile a cross bill and to require an answer." And Avhero u foreign prim e comes volun- titrily as a suitor into a Court of Law in Kngland, he beconu's subject, its to all matters conneitefl with thai suit, to the jurisdiction of a (*ourt of Fiquily.'' An ambassador, or minister plenipotentiaiy, of a foreign ^late, does not properly represent that state in u ('ourt of Justice.^ It seems that a colonial government, existing by letters patent, which is in some degree similar to a corporation pos.sossing rights in England, may sue here, and ought to l)e regulated by tlie law of England, under which it has existence ;■'* thus, in Pcnnv. .Lord, Baltimore,^ Lord llard- wicke made a decree at the suit of the governor of a province in America, claiming under letters patent, by which the district, |»roperty, and c;uvernment harl been granted to his ancestor and his heirs. The suit was for the specific j)erfornuiuce of articles, executed in England, res- pecting the boundaries of the two provinces of Maryland and Pennsyl- vania in North America; and Lord Hardwicke, although he admitted that the original jurisdiction, in cases relating to boundaries between provinces, was in the King in Council, made a decree : founding the jurisdiction upon articles executed in pjugland under seal, for mutual considerations, which he considered as giving jurisdiction to the King's Courts, both of law and cquit}', whatever the subject-matter might be. « I \ *i# £ M ' T/iomson v. Ponies, 2 Sim. lai, 21t). - Tlie Columbian Government v. Ito/hschild, 1 Sim. 94, 101. ' Rothschild V. Queen of Portugal, 3 Y. & C. Ex. 594. ^ Schneider v. Lizardi, 9 Beav. 461, 400 ; The Columbian Government v. Rothschild, 1 Sim. 94. '- Barclay v Russell, 3 Ves. 424, 434. * 1 Ves. 8. 444, 446. ■a V 16 PERSONS nV WHOM A sriT MAY HE INSTITUTED. W: Section III. — Corporations and Joint-Stock Companies. Tho rii^ht to niie is not c (HiHuod to [hm'somk in their natural caitaiitie.^, till- power to Mil' and Ik' sued in llu-ir corjioi-at*^ nanu' is a jtowi-r inscparaldy incid^ nl to every coi'poi'ation, wlu'ther it in' nolo or agt^re- jL?alo.' As a corporation nmsi tjike and ijjrant liy tlu'ir corpoi'atc nanii', ho by that name thi'V nui>t, in i^cnei-al, sue and ho sue(| ; and lliey may sUe hy their true name ol' l()un(hition, though tiie}' he hotter known hy another name. Tliii-^, llio masters and selioiars of ilie JIall of V'^aU.'ii> Mary, in Candiridge, hrouglit a writ hy that name, which wa.-s tho name of thoir ibunihition, tliough tliey wore bettor known hy the name ol' Pomhroko ilail, and the writ was hold good.^ • As a corporation hy prescription may liavo more than ono name, they may sue hy the one nanu' oi- the other, alleging thai they and thoir predecessors have Irom time immemorial boon known, and boon accu>- lomed to iiloati, by the one or by tho other." A suit by a corporation aggregate, to ri'covir a thing duo to them in thoir corporate right, must not bo brought in the name ol" thoir hoao not iisod, piovidiMl (ho iiaim! intiially iisnl lie a siilticicnl (loMci'iption t.f tlui t()r[)<)ruli()ii i tli(Mi'>;Ii it nuiy 'h' «l(»nl>(f'iil wlii'llior, ill Hiiin^ lo eiiforeo i'ts clsiiiii uikUm" tiiat AiA, i( cati iisa tho iiaino llioiviii nicMlioiied,' III Iho ciiso of The Attomcji-dnirral v. W!f>ion,^ which was a joint hill ami iiifbi'inatioii, and in which (ho corporation of Loods was lM>th itlaiiititVand relator, an ohjoction was madi^ that a corporation l)cin<; a liudy whoso identity is conlimioiis, could not ho hoard to impeach transactions carried into oll'cct in its own name hy its Cornier j^overii- iiiii^ liody. The ohjoction was overruled hy Lord (?ottonliain, who thoimht that the true way of viowini^ this was to consider the mcinherM of the ^ovcrnini^ hody of the corjxn'ation as its a a Bac. Ab. tit. Corp. £. 2. » Ibid. 3 1 Kyd,onCorp.Tr. ♦ Ibid. 78. » 6 Yes. 778. to sue in Courts of l»y person A suit I llioir corp that they such corp( denied, th wore cffec It is to 1 Eldon gav their jM'csc tiiemselvc.' it has been have one c( may sue in I'iplc, large coinpunicH, suits institi hchalfoftli It may h 78, her Maj panics, and to sue and 1 companies ( have from t Nvhich, alth( still conferr< siitli conij)a amongst oth and being sii thc30 compa time to time lating them, ii< Van San ' Dutch West If. '' G Ves. 779. •^ See Chancey ' 16 Ves. 381, 2 S. & 8. 26- 290,292; ant * As to abatemc von Stem, a ^ 1 Ru8s. 441, 45' CORPORATION AND JOINT-STOCK COMPANIES. 19 to sue in a corporato character ; and, upon principles of policy, the CourtH of this country do not sit to determine upon charters granted l)y persons wlio have not the prerogative to grant them. A suit may be supported in England by a foreign corporation, in Ijieir coi'porate name and capacity; and in pleading, it is not necessary that they should sot forth the proper names of the persons who form such corporation, or show how it was incorporated ; though, if it is denied, they must prove that by the law of the foreign country they were effectually incorporated.' It is to be observed that, in the above case of Lloyd v. Loaring, Lord KIdon gave the plaintiff's leave to amend their bill, by striking out tlicir ju'csent style as plaintiffs, and suing as individuals on behalf of tiicmselves and the other persons interested. ^ Ever since that period it has been held, that where all parties stand in the same situation, and have one common right and one common interest, two or t^ree or more may sue in their own names for the benefit of all; and upon this prin- ciple, large partnerships or associations in the nature of joint-stock companies, although not incorporated, have been permitted to maintain suits instituted in the name of a few or more individuals interested, on liohalf of themselves and the other partners in the concern. =» It may hero bo observed that, by the statute 7 "Will. IV. & 1 Vic. c. 78, her Majesty is empowered to grant letters patent, establishing com- panies, and providing that the companies so established shall be able to sue and bo sued by their public officer ; and that many joint-stock companies or associations for insurance, trading, and other purposes, have from time to time been established by special Acts of Parliament, which, althouf-' they have not formed them into corporations, have still conferred upon them many privileges, in consequence of which sutli companies have acquired something of a corporate character ; amongst other privileges so conferred, may be reckoned that of suing and being sued in the name of their public officer.* The history of thcoO companies or associations, and of the provisions which have from time to time been introduced into Acts of Parliament creating or regu- lating them, has been detailed at considerable length by Lord Eldon, in Van Sandau v. Moore ]^ and his Lordship's observations may bo V - Pi ' Dutch, West India Comvany v. Van Moyses 2, Ld. Ray. 15.35. 2 G Ves. 779. ^ See Chancetjy. May, Proc. in Ch. 592; Good v. Bkwitt, 1.3 Ves. .397; Cockburnx. Thompson, 16 Ves. 321, 325 ; I'tarce v. IHp<:r, 17 Vob. 1 ; Blaln v. Aqar, 1 Sim. .37, 43 ; Gray v. Chaplain, 2 8. & 8. 267, 272 : St Russ. 120 -, Van Sandati v. Moore,! Rubb. 411 ; Lund v. Rlanchard, 4 liarc, 290,392; anilBecjXW/. * As to abatement by dwith of a public" officer, see 7 Geo. IV. c. 46, s, 9, and Burniester v. Baron von Stem, 23 Beav. S^,. For form of order to substitute i new ofllccr, see Scton, 1173. ^ 1 Ruse. 441, 468. 20 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. useful to those upon whom the duty may devolve of framing suits on behalf of, or against, persons connected with the different classes of joint-stock companies there enumerated. It will suffice, however, for our present purpose, to observe, that although under Acts of Parlia- ment of this description it is competent for the company to maintain suits in the names of the officers designated in the Acts, yet where any of the company wish to sue the directors or others who arc members as well as themselves, they may maintain such a suit in their own individual capacities ; cither suing by themselves, and making the rest of the company defendants, or suing on behalf of themselves and the other members of the association.' Although the rights and duties of the public officer are cnicfly to sue and bo sued on behalf of the com- pany, in matters arising between the company on the one hand, and strangers or persons who are not partners on the other, yet it has been held, that the public officer may also institute proceedings against cer- tain of the directors, in respect of past transactions, to compel them to refund sums alleged to be due from them to the partnership. This ^vas decided by Sir James Parker, V. C, with reference to the Joint-Stock Banking Act, 7 Geo. IV. c. 46, s. 9,^ but the reasons on which his judgment rested would seem to render his decision applicable to all joint-stock companies duly registered. Section IV. — Perso)is residing out of tlie Jurisdiction. The rule that all persons, not lying under the disabilities after pointed out, arc entitled to maintain a suit as plaintiffs in the Court of Chancq^y) is not affected by the circumstance of their being resident out of tho jurisdiction of the Court, unless they be alien enemies, or are resident in the territory of an enemy without a license or authority from tho government here. In oixler, however, to prevent tho defendant, or respondent in tho case of a petition, from being defeated of his right to costs, it is a rulo that if the plaintiff in a suit,^ or the iietitioner,* is resident abroad, tho Court will, on the application of the defendant or respondent, order him > Hitchem V. Congreve, 4 Russ. 508. ' Harrison v. Brmvn, 6 De O. «& S. 728 ; and see Seddeii v. Connelly 10 Sim. 58, 76. > Though suing as executor or administrator, Knight v. De Blaquiere, Sau. & S. 648. * Drever v. Jtfaudesley, 5 Russ. 11 ; Re Norman, 11 Beav. 401 ; Atkins v. Cooke, 3 Drew. 694 : 3 Jiir. N. 8. 388 ; Partington v. Eeunolds, W. R. 307. This docs not apply to the case of a petition in the cause by a party, Cochrane v. Fearon, 18 Jur. 568. Where there is i be ordere plaintiff i where he reside in but had n of citizen months af costs was to leave ii sworn tlia It has I v. 90, s. 5, order or d( residing in costs;" am in Ireland English C( bcre, he m l)erson resi costs. 8 Th in the County made for an tlie Court jiirisdiction IC Vic, c. 1 divisions, tl ' foxj.Bleto, '^ Bailey v. Oh Bay, 2 Y. i V. Padwici 468: 2 Jur. N. 8. 401, -^ 7 Bcav. 269 ' Somerville v. * O' Grady v. " Moloney v. St " MiUlett V. CA; ' Hill V. Reard in Ireland s " Kerr v. Ditch PERSONS RESIDING OUt OP THE JURISDICTION. ^i to give security for the costs of the suit or petition, and in the meantime direct all proceedings to be stayed. ' So, also, where a plaintiff appears to have no permanent residence, he will be made to give security for costs. ^ Where it appears that the residence of the plaintiff is not known, and there is reason to believe he has left the countiy, security for costs will be ordei'cd to be given, although it does not appear by the bill that the plaintiff is resident out of the jurisdiction, and it is not shown positively where he is resident.' The plaintiff, a British subject, having gone to reside in the United States, where he had remained for several years, but had never taken any oath of naturalization, or exercised the right of citizenship in that country, returned to this province, and some months afterwards filed a bill in this Court ; a motion for security for costs was refused, although several persons swore Ihat his intention was to leave immediately on the decision of the case, the plaintiff having sworn that his intention was to remain in the country.* s It has been held in Ireland, « that notwithstanding the 41 Geo. Ill, c. 90, s. 5, by which an attachment is given in England to enforce an order or decree made in Ireland for the payment of money, a plaintiff residing in England must, on filing a bill in Ireland, give security for costs;" and although the same Act applies to persons who are resident in Ireland commencing suits in England, it has been decided in the English Courts, that where a plaintiff resident in Ireland files a bill here, he must also give security.'' It has likewise been held, that a person resident in Scotland must, in like manner, give security for costs. ' The bill stated the plaintiff to bo resident in the Parish of Bigaud, ill the County of Vaudreuil, and an application had on a previous day been made for an order for security foi* costs ; a doubt was suggested whether the Court can judicially take notice that Vaudreuil was out of the jurisdiction ; but now the Chancellor thought that, by the Pro. Stat., IG Vic, c. 152, the whole province having been set off into territorial divisions, the Court was bound to take notice of such sub-divisions of I Foxy. Bleic, 5 Mad. 147 ; Latour v. Ilolcombf, 1 Phil. 202, 2G4. '•' Bailey v. Oundry, 1 Keen, M; Player v. Ande7'»on, \5 Sim. 101 : 10 .lur. 100 ; and soo Calvert v. Day, 2 Y. & C. Ex. 217 ; Sibbering v. Earl qf Balcarra.o, 1 Do (J. & S. 08.3 : 12 Jiir. ids ; HurH V. Padioick, 12 Jur. 21 ; Lumley v. Hughes, 2 W. K. 112; Manby v. Bewicke, 8 Dc O. M. & (J. 408: 2 Jur. N. 8. 071 ; Oldale v. Whitcher, 5 Jiir. N. S. SI, V. C, K. ; Knig/it v. Cory, 9 Jur. N. S. 401, V. C. W. The rule extends to the next frieikl of the plalntid', see Kerr v. Ifillenpie, 7 Beav. 209 ; Watle v. Kelly, « W. K. 200. = Somerville v. Kerr, 2 Cham. R. 108. * O'Grady V. JHunrcTQrmtim. '• Moloney v. Smith, 1 M'CI. & T. 213. « MtiUett V. Christmas, 2 Ball & B. 492; see also Stackpole v. Callaghan, 1 Ball & B. 500. ' Hilly. Reardon, Mad. 40; Moloney v. Smith, 1 M'(;i. & Y. 2M; and see, us to plaliitm' reMjdent in Irclaml Bulng licre in other caues, Craig v. BcUon, 2 Bro. C. C. <(01». " Kerr v. Duchess ofMunster, Bunb. 35; Exvarte Latta, 3 Do O. & H, 180. 22 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. the country as the Act njiikoH, and that theroforo the security for coHt.s Hhould be i^iven.' The Statute 22 Vic, c. 33, has effected a material cliange in the practice of this Court, as to granting or refusing security for costs. The fact that the plaintiff has not any fixed phice of abode within the province, will not be sufficient to warrant an order for that l)urpose, where it is shewn that he has property within the jurisdiction.- An infant out of the jurisdiction petitioning for relief, will be required to give security for costs.' If a plaintiff residing out of the jurisdiction is shown to have property in Upper Canada, an order for security for costs made against him willne set aside.* Where there arc co-plaintiffs resident in Enghmd, the Court will not make an order that other plaintiffs who are abroad shall give security' for costs ; ' and whore the phiintiff is abroa'^ as a land or sea officer in the service of her Majesty, he will not bo ordered to give security;" and so, where he is resident abroad upon public service, as an ambassa- dor or consul, he cannot bo called uj)on to give security."' Tlio Court of Queen's Bench, however, has required a Judge in the East India Company's service to give security ;« and peers of the realm, although they are privileged from personal arrest, must, if they reside abroad, give security for costs ; for although such costs cannot be recovered by personal process, they may by other process, if the plaintiff becomes a resident in this country. » And it may bo stated generally, that wherever a plaintiff is out of the jurisdiction, the defendant is entitled to security for costs, unless it is distinctly shown that the plaintiff' is exempted from his liability.'" The mere fact of a plaintiff being in the service of the Crown, and absent from the jurisdiction of the Court, is not sufficient to exempt him from giving security for costs ; to do so, it must be shewn that he is absent from his domicile in the service of the Crown." As a general rule, the plaintiff" in a cross suit cannot be called upon to give security for costs to the plaintiff' in the original suit, on the principle that a cross bill is, in reality, a portion of the defence to the original bill;" but his co-defendants to the cross bill may move for such ' McDonald v. Dicarie, \ Cham. R. 34. a White v. White, 1 Cbam. R. 48. 3 Stinson v. Martin, 2 Cliam. R. 80. * Oalt V. SiKMer, 3 Cham. R. 92; and 8ee Marsh v. Beard, 1 Cooper's C. & P. R. 52. •> Winthrop v. Royal Exch. Ass. Co., 1 Dick. 282; Walker v. Easterby, 6 Vf8. 612. • Evelyn v. Chippendale, 9 Sim. 497 ; Clark v. Fergusson, 1 Gifl". 184 : 5 Jiir. N. S. 1155. T Colebrook v. Jones, 1 Dick. 154 ; Beamcs on Costs, 123. As to ambassadors resident lierc, and their servants, see post. •* JHowdm V. Campbell, 18 Jur. 910, Q. B. » Lord Aldborotigh v. Burton, 2 M. & K. 401, 403. >*■ Lillie V. LUlie, 2 M. & K. 404. As to security by a limited company, see ante. '• Dickenson v. D\^gUl, 1 Cham. R. 108. '» Vincent v. Hunter, 5 Hare, 320; M'Gregor v. Shaw. 2 De «. & S. 8«I0; Sloggett v. Viant, 13 Sim. 187; Wild V. Murray, 18 Jur. 899; Tuntv v, Hoilge, 2 J. & II. 092: 8 Jur. N. S. 1220: and wf MatUey v. Williams, 1 Chnm. R. 48. t»ER80N8 RfiSIDINO OUT Of THE .tURISiilCTION. security against their plaintiff;' and it has been held, that a bill to restrain an action at common law is so far a defensive proceeding as to exempt the plaintiff in equity from the liability to give security for costs ;3 but, on the other hand, a defendant in an interpleader suit being out of the jurisdiction, was looked upon as plaintiff, and ordered to give security for costs;' and so also, a defendant who had obtained the conduct of the cause has been required to give security.* And where the right to require security for costs from a plaintiff out of the juris- diction had been waived, such waiver did not preclude the defendant from requiring security from the representative of the original plaintiff, by whom on his death the suit was revived, and who was also out of the jurisdiction.' A plaintiff cannot be compelled to give security for costs, unless he himself states upon his bill that he is resident out of the jurisdiction, or unless the fact is established by affidavit; and the mere circumstance of his having gone abroad will not bo a sufficient ground on which to compel him to give security, unless it is stated, either by the plaintiff himself, or upon aifidavit, that he is gone abroad for the purpose of residing there." Whenever security is asked for, the question arises whether the party is resident abroad or not within the meaning of the rule ; and the answer to that question depends, in each case, upon the interpretation to be put upon the phrase "resident," or "permanently resident" abroad. Thus, if a plaintiff goes to reside abroad,^ under circumstances rendering it likely that he will remain abroad, for such la length of time that there is no reasonable probability of his being forthcoming when the defendant may be entitled to call upon him to pay costs in the suit, that is sufficient;' and where a plaintiff, domiciled in Scotland, took furnished lodgings in London, and then filed his bill, it was held that he must give security for costs ;» and so, where the plaintiff went out of the jurisdiction on matters connected with the suit, he was ordered to give security ; but (m his return the order was discharged. » ' Sloggett v. Viant, 13 Sim. 187. •^ WatUeu V. Billam, 8 De G. & 8. 610 : 14 Jur. 165 : Wilkinson, v. Lewis, 3 Giff. 394 : 8 Jnr. N. S. 908. ' Smith V. Hammond, 6 Sim. 10, 15. < Mynn v. Hart, 9 Jur. 860, V. C. K. B. " Jackson v. Davenport, 29 Beav. 912 : 1 Jur. N. S. 1224. « Green v. Charnoek, 8 Bro. C. 0. 371 : 2 Cox. 284 : 1 Ves. J. 396; ffoby v. Hitchcock, 5 Ves. 099 ; Edwardes v. Burke, 9 L. T. N. 8. 406, V. C. K. ' Blakeney v. Dufaur, 16 Beav. 292: 9 DeG. M. & G. 771 : 17 Jur. 98; and Bee Kennaway v. Trip)), 11 Beav. 688 ; Drummond v. TUlinghurst, 16 Jnr. 384, Q. B. ; Stewart v. Stewart, 20 B«av.-828 ; WyUie V. EUice, 11 Beav. 99 : 12 Jur. 711. » Ainsley v. Sims, 17 Beav. 57 : 17 Jur. 057 ; and see Swamy v. Sivamy, 4 K. & J. 237 : 4 Jur. N.S.1013. » 0' Conner v. Sierra-Nevada Co., 24 Beav. 486, I-. < 1 i 1 i- I I 24 PERSONS BY WHOM A SUIT MAV BE INSTITUTED. In order to entitle a defendant to require security for co^ts from a plaintiff, he must make his application at the earliest possible time after the fact has come to his knowledge, and before he takes anj' further step in the cause ; therefore, where the fact of the plaintiff being resident abroad appears upon the bill, he must apply before he puts in his answer, or applies for time to do so : either of which acts will be considered as a waiver of his right to the security. ' Filing a demurrer has, however, been held not to be a waiver.^ If the plaintiff is not described in the bill as resident abroad, and the defendant does not become apprised of that fact before he puts in his answer, he may make the application after answer; if, however, he takes any material step in the cause after he has notice, he cannot then apply. In Masonx. Gardner,^ the plaintiff was described in the original bill as late of the West Indies, but then of the city of London, and the defendant, having answered, filed a cross bill against the plaintiff; exceptions, however, were taken to the answer, to which the defendant submitted, and put in a further answer, and then applied to the Court that the plaintiff in the original bill might give security for costs : alleging in his affidavit, that upon application to the plaintiff's solicitoi- in the original suit to appear for him to the cross hill, he discovered, for the first time, that the plaintiff did not reside in London, as alleged in the bill, but in Ireland. To this it was answered, and so it appeared, that the defendant had, in his cross bill, stated the plaintiff to be resident in Ireland, and after that had answered the exceptions to his answer to the original bill, and had thereby taken a stop in the cause after it was evident that he had notice of the plaintiff's being out of the jurisdiction ; and Lord Eldon held that the defendant had thereby precluded himself from asking for security for costs, and therefore refused the motion. Ex parte Seidler* was a jietition under an Act of Parliament, authorizing the Court to make an order in a summary manner upon petition. The petitioner being out of the jurisdiction of the Court, and the respondent having answered the affidavits in support of the petition, the question was whether he had thereby lost his right to require the petitioner to give security for costs; Sir Lancelot Shadwell, V.C., ruled that he had not, but that he might make the ajiplication on the petition coming on to be heard." ' Mdiorucchy v. Mdiorucchy, 2 Vcs. S. 24 : 1 Dick. 147 ; Craig v. Bolton, 2 Bro. C. C. C09 ; Anoi. 10 Ves. 287 ; and see Swamy v. Swamy, 4 K. & J. 237 : 4 Jur. N. S. 1013 ; Murrow v. Wilmi, 12 Beav. 497 ; Cooper v. Ptirton, 8 W. R. 702 ; and see Atkins v. Cook, 3 Drew. 694 : 3 Jur. N.8. 2S;5. 9 Watteeu v. BiUam, 3 De G. & S. 510 : 14 Jur. 166. _ 8 9«ro. C. C, Ed. Belt, 009, notis. ' * 12 81m. lOG. • See, however, Atkins v. Cook, 3 Drew. 694 ; 3 Jur. N. S. 283- Wf'-WM PERSONS RESIDING OUT OP THE JURISDICTION. 25 14 In Dyottv. Dyott,^ where the defendant had sworn to hiis answer before he had notice of the fact of the plaintiff being resident abroad, but in consequence of some delay in the Six Clerk's Office, the answer was not filed till after the defendant had been informed of the plaintitf 's residence, a motion that the plaintiff might give security for costs was considered too late : although the defendant himself was not privy to, or aware of the delay which had taken place in filing his answer. If a plaintiff, after filing a bill, leave the kingdom for the purpose of settling, and do actually take up his residence in foreign parts, it is, in any stage of the cause, ground for an order that he shall give security for costs.2 Such application ought to bo made as early as possible after the defendant lias become apprised of the fact ; and it is not enough to suj)port such an application to swear that the plaintiff has merely gone abroad, but the affidavit should go on to say that he is gone to settle abroad. In Weeks v. Cole,^ an application was made by the defendant, after answer, that the proceedings might bo staj'cd until the plaintiff gave security for costs, on an affidavit that the plaintiff, who, when the bill was filed was resident in London, had, since the answer was put in, entirely abandoned the country-, and gone to reside in the Isle of Man; and Loi'd Eldon made the order, observing, how- ever, that the plaintiff ought to have an opportunity of answering the affidavit ; the propriety of which suggestion is evident from the case of White V. Greathead,* where an order for the plaintiff to give security for costs, after answer, was refused, in consequence of an affidavit which had been filed by the plaintiff's solicitor, stating that the plaintiff had gone to the West Indies merely for the purpose of arrang- ing his affairs, and that he had informed the deponent that he intended soon to return to this country, where he had left his family. To entitle a defendant to an order that the plaintiff may give security for costs, it is necessary that the jjlaintift' should absolutely be gcme abroad: the mere intention to go will not be sufficient ;' in a case, however, where the plaintiff, who was an alien enemy, was under con- finement preparatory to his removal out of the country, upon a warrant by the Secretary of State under the Alien Act, the proceedings were stayed until he gave security for costs, although he was not actually gone out of the country." In proceedings at Common Law, where ' 1 Mad. 187; and, as to laches, see Wyllie v. EUice, 11 Beav. 90: 12 Jur. 711 ; Swamy v. Swanzy, 4 K. & J. 237 ; 4 Jiir. N. S. 101.3; Murrmo v. Wilson, 18 Beav. 497. 5 Anon. 8 Dick. 775; see also Bvsk v. Beetham, 8 Beav. 537 ; Blakeney v. Vufuur, 2 Dc 0. M. & O. 771: 17 Jur. 98. ' 14 Ves. 518. < 15 Ves. 2. '•" Adams v. Cdthurst, 8 Anst. 658. ' Seilaz V. llanmn, 5 Ves. 861. pi vl ',» IJ N f-*| ^^m^ - . " ^^K' ■• " 'w' "^ ^e • i^F^ ■' K^m ' ^Ml * } ' ^y^raiii * h »iH J ^ 26 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. after tlie commencoment of an action, and after issue joined, the plaintitt' has been convicted of felony and ordered to bo transported, the Courts have ordered security to bo given for costs, as well retro- spective as prospective ;' and it is presumed that courts of equity will follow the rule at law. Whore, however, the plaintiff had not been convicted of felony, but only of a misdemeanour under the 62 Geo. III. c. 130, s. 2, for poaching, frr which he was sentenced to seven years' transportation, and it was admitted that he hiul not sailed for the place of transjiortation, but was in a penitentiary place of confinement, Sir John Leach, V. C, refused a motion for stay of proceedings till the plaintiff had given security for costs." From analogy to the course adopted where the plaintiff is resident out of the jurisdiction, the Court will, upon application, restrain an ambassador's servant, whose pei-son is privileged from arrest by the 7 Ann. c. 12, from proceeding with his suit until he has given securitj- for costs. ' By the old jiractice, £40 was the amount of security required to answer costs by any plaintiff who was out of the jurisdiction of the Court, but this sum has been increased to £100.* In an anonymous case,* Sir Lancelot Shadwell, V. C, ruled, that where a person out of the jurisdiction of the Court presents a petition to have his solicitor's bills taxed, he must give security for the costs of the petition, and also for the balance that may be found due from him on the taxation. In our Court £100 is the amount usually inserted in the Bond. Where it appears on the Bill* that the plaintiff is resident out of the jurisdiction, an order that ho give security for costs is obtained on praecipe from the Clerk of Records and Writs, if the Bill be filed in Toronto,' or from the Local Master of the County (if filed out of Toronto) where it is filed. » Our Order 36, empowers Local Masters to grant orders for security for costs ; our Order 321 provides that " Bonds executed upon an order for security for costs are to be given " to the Registrar, or Deputy Registrar, with whom the pleadings in " the suit are filed ; all the defendants are to be included in the same > Harvey v. Jacob, 1 B. & Aid. 159; Barrett v. Power, 9 Exch. 338 : 18 Jur. 156. » Baddeley v. Harding, 6 Mad. 214. 3 Anon. Mos. 175; Goodwin v. Archer, 2 P. Wms. 452 ; Adderly v. Smith, 1 Dick. 355. * Ord. of 1828, No. 40. Tho order applies to the case of a plaintiff, within the jurisdiction, ordered to give Becurity, Bailey v. Oundry, 1 Keen, 53. It seems, however, that in the case of a petition, the amount is still ouly £40, Atkins v. Cook, 3 Jur. N. S. 283, V. O. K. ; Partington v. Reynolds, « W. R. 307, V. C. K. * 12 Sim. 262 ; see also In re Passmore, 1 Beav. 94 ; lie Dolman, 11 Jur. 1095, M. B. * What is stated in the text as to a bill suit, will apply, mutatis mvtandis, to a petition, or othtr proceeding in which security is directed to be given. » Under Con, G. O. No. 25. » Under Con. G. 0. No. 86. " bond ; " applicat " Order." rT([iiiring same cam action are «aiiie trail or to a ca.s Whore jiirisdictio: course, or (he Bill so In other notice of i application a]>plicant t The orde his behalf t bond to the conditioned by the plaii When an plaintiff or 1 liiin, is unnc The secur tiff's solicito MM-oeures it i tho Record t serves notic( prilor. It is Ico-defendunti jtleemed to hj Iplaintiff, inst |ilofondant's s <'f the propos jwitliin two di land notified ' Dean v. Lampi '' Tynts V. Hmigi '' Brailhwalte's I ' Ibid. '- Braithwaile's P PERSONS RESIDINO OUT OF THE JURISDICTION. at " bond ; and tho final sum to be inserted tberein is to be fixed upon the " application for Kecurity, by tlio Judge or Master who makes tho 'Order." To bring a ease within tho Statute, 29 and 30 Vie., c. 42, requiring security for costs to bo given wlicn another action for tlie same cause is jionding, it must bo clearly shewn that the causes of action are identically tho same,* and not merely growing out of Iho ■^anie transaction. And quare, does tho Act apply at all to this Court, or to a case whore one action is at law, and tho other in this Court.' Where it appears on tho Bill that tho plaintiff is resident out of tho jurisdiction, tho order for security for costs is obtained on motion of conrse, or more usually by petition, on production of an office copy of the Bill served on tho defendant. In other cases, a special application by motion^ must be n\ade. The notice of motion must be served on the plaintiff's solicitor, and tho application must be supported by evidence of the facts entitling the a])plicant to tho order. ; The order directs the plaintiff to procure some sufficient person on his behalf to give security, according to the course of the Court, by bond to tho Kegistrar or Deputy llegistrar, in tho penalty of £100, conditioned to answer costs, in case any shall bo awarded to bo paid by the plaintiff; and it restrains proceedings in tho meantime. When an order of course has been obtained, it must be served on the plaintiff or his solicitor; service of a special order, made on notice to him, is unnecessary. The security is given in one of tho following modes : (I.) The plain- tiff's solicitor prepares a bond in the terms of tho order ; engrosses it • procures it to bo executed by tho obligor or obligors ; lodges it with tho Eecord and Writ Clerk, or Deputy Registrar ; and on the same day serves notice thereof on tho solicitor of tho defendant who obtained the order. It is also advisable to serve the notice on the solicitor of any K(Klofendi.nts who have not applied for security;' and tho security is deemed to have been given on tho day tho bond is lodged.^ (II.) The l)laintiff, instead of giving the bond in the first instance, may serve the Iclefondant's solicitor with a notice of tho name, address, and description Icf tho proposed obligor or obligors; aVid if no objection bo made by him within two days thereafter,,the bond may be prepared, executed, lodged, [und notified as above explained. « (HI.) The plaintiff may apply by ' Dean v. Lampi'ey, 2 Cham. R. 202. '^ Tynk v. Uoiige, 2 J. & II. (i'J2. ^ Braithwalte'8 Pr. 534. * ma. '- Braithwaite'9 Pr, 533, i f i I y m 28 PERSONS fir WnOM A SUIT MAY BE INSTITUTED. special motion' that, in lieu of giving u bond, ho may pay a sum of money into Coui't, to a separate account, to answer the costs ; the amount should bo sufficient to cover the sum mentioned in the order directing the Hecurity to be given, and the costs of bringing it into Court and getting it out.^ The usual amount is £120 ;3 no evidence in support of the application is necessary, beyond the production of the former order ; the costs of the application are made costs in the cause. The order is drawn up and passed by the registrar, and entered, and the money is paid into Court in the manner hereafte explained. A bond for security for costs of appeal should be styled in the Court of Error and Appeal. The stylo of the cause in tho Court below, it adopted, should be the st^'le in full, and the parties should bo described as they respectively become appellants or respondents; but to carry out tho view of the Court, as intimated in Harvey v. Smith, 2 Grant, E. & A. R. '180, they may be given in the same order as in the stylo of tho original cause.'' It is for the plaintiff's convenience to submit the name of the proposed surety to the opposite party before filing the bond, as ho may risk the surety, not being successfully objected to by the defendants ; and it is not necessary that tho surety should bo first approved of by the defendant's solicitor, or the registrar ; nor is a plaintiff bound to give more than one surety, unless he alone is insufficient. The bond should contain tho condition to tho effect, that upon tho surety, not tho plaintiff' paying tho costs, the obligation shall bo void.* Where tho plaintiffs, who wore resident out of the jurisdiction, had paid a certain sum into Court in lieu of security for costs, an applicution to have this money paid out to them was refvised, although a decree for specific performance had been made in their favor, the suit not being finally terminated." One obligor is sufficient, but it is prudent to have two or more; as on tho death or bankruptcy' of the sole, or solo surviving, obligor, the defendant is entitled to apply by special motion ^ that a now security may bo given, and for a stay of proceedings in the meantime. Where one or more of several defendants have obtained an order for security, it is advisable to extend tho bond to the costs of all the defen- dants, as otherwise tho defendants Avho have not obtained the order > Clife V. Wilkinson, 4 Sim. 122; and see FelUnos v. Deere, 3.IJeav. 353; lieN^orman, 11 Beav. 101. " Clife V. WilMmm, 4 Sim. 123. 3 See Clife v. Wilkinson, vbi sup.; Australian Co. v. Fleming, 4 K. & J. 407. In the case of ii petition, it is presumed £60 would be sufllcient. « Weir V. Mathieson, 2 Cham. R. 73. » Beaton v. Boomer, 1 Cooper's 0. & P. B. 63. • Luther V. Ward, 2 Cham. R. 175. "> Transatlantic Co. v. Pietroni, cited Seton, 1269; Cliffe v. Wilkinson, vbi sup. * Lantoiir v. Hoicombe, 1 Phil. 962; and bcc Veitch v. Irving, 11 Sim. 122. ' Lowndes v. I * 1 Phil. 266 ' Plestow V. Joi ' Pan!m v. Loi ' Giddings v. ( 1279, where 23 Beav. €" * See 1 Turn. '3Jur. N. 8. . '" Brigham v. " Saunders y. ,60S IC PERSONS REfiiniNO OPT OP THE JURFSDrrTION. 29 ili .« may afterwnrdH apply for a rni'lhoi' l»oii(l as to thuir cohIh ; unci it Ih pivsumod thut, whore :i hond oinl)rac'iii<^ (lie coMts of all the deloiulaiits • in lodged with the IJocord and Writ Clerk, or Deputy llegistrar, and notified to thorn, he will hold the hond on hehalt'of all the defendants, liy analogy to tlio old practice, where the hond was deposited with a Six Clerk;' and that a separate hond or i)onds cannot afterwards bo required. =" Whatever nuniher of bonds, however, may bo given, they . all form a Hocurity for one sum only.^ In Panton v. Labertonche,* it was decided that a solii-itor ought not to ho surety for his client. The bond of an incorporated society has been hold sufficient.' The defendant, on receiving notice that a bond has boon lodged in the first instance, may, if dissatisfied with the bond, aj^ply by special . motion* that in lieu of, or in addition to, such bond, the plaintiff may bo ordered, within a limited tjme, to give security for n(laiit ohjeels, ho Ih t() move tor an order lor heller security; and that in (U'lault of itn hein^ furnished within four teen days, ' the hill he dismissed." As the Tiocal Master has no power to disnnss a hill on the applieation of a defeno siTvid on tht) pluin- (ifV's Holicitor; uud tho upidicutioii niust bo .supported hy prodiicliori of tvidcnco of tho cohIh having hocii diroctod to bo |>ai(l,and ol'tho ainoiitit and non-payniont thortwd'. Thoordoron niich application is drawn up liy Iho JtogiHtrar; a plain copy of It is lodged with tho Itocord and Wiit (Mcrk, togothor with a rocoipt for tho bond, and an undoi'laUing lo jiKUimnily him is/.unst tho costs of any jtrociH'dingH to bo taken thoroon ill his namo; and, if satisfii'd thorowith, ho will dolivor out tho bond. The receipt and undoi'taUing are required to bo signed by the defendant applying, and also by his solicitor, and are usually written at the foot of the copy of the order.' On an application by llie defendant to bo at liberty to sue on a l)ond ;^ivon for security for costs, tho ])laintiH" being resident out of the jurisdiction, Spragge, V.C, re(juired tho decree to bo ])roducod, to shew that tho (lefcndantH were ordered to receive tho costs. ^ And on an application for liberty to sue upon the bond given to socun! tho pay- ment of tho cotttw of an ap]w)al brought by the defendantH against a decree of this Court, Esten, V. C, required the party moving to show u (ionumd from and refusal of the costs by tho sureties luimod in tho bond before making tho order asked. ^ Where money liaji boon paid into Court as security for coHts in lieu of a bond, an application may bo mjulo at chambers, lor payment there- out of any costs ordered to bo paid by the plaintift' to tho defendant. The notice of motion must bo served on tho plaintiff, and on co-defen- dants interested in tho fund, and must bo supported by evidence (jf such payment having boon directed, and of tlio amount payable, and by production of the Registrar's certificate of tho fund being in Court. It may hero bo mentioned that where a bill was filed by an assignee in insolvency against B, for tho indemnification of tho estate in respect of a claim by C, which it was alleged that B should pay, — and it appeared that tho plaintiff himself was an insolvent person, that there wore no assets whatever of the estate he represented, and that tho suit was brought at his instigation, risk, and expense, and for his benefit, — it [way held, that tho plaintiff must give security for costs.* The plain- tiff (a vendor) had su-.d at law to recover tho purchase money duo I under an agreement for tho salo of lands, but had failed, and tho costs of the action wore given against him ; tho defendant (tho vendee) issued |a^/a goods to recover tho costs, which was rotui*nod nulla bona. Aftcr- ' Braithwaile'8 Pr. 535, 630. ' Salph V. Ibpptng, 1 Cham. R. 14. ' Stokes V. Crysler, 1 Cham. R. 14. * Jfason V. Jeffery, 1 Cham. R. 379. , Pi 32 PAUPERS. wards, tho vendor filed his bill in Eqrily to enforce specific i)erformanc(; of the contract. On motion of tho defendant in tho suit, thaprocoedings in equity were stayed till security for the costs at law should be given.' The plaintiff will be ordered* to give security for costs where it is shown that he is insolvent, and is carrying on the suit for the benefit of another party who seeks to escape the risk of costs.^ If, subsequently to the order directing security fc r costs to be given, the plaintiff becomes resident within the jurisdiction, he may apply, on special motion, that the order may be discharged ; but ho must pay the costs of tho application.^ ' , Where a plaintiff, who, when the bill was filed, was out of tho juris- diction, and had been ordered to give security for costs, afterwards returned Avithin tho jurisdiction, — but it had appealed that he had no business, and no intention of entering into any — no final place of abode, — no house ani no family, or tics to bind him to the Province, — and the Coui't was of opinion that the return of the plaintiff was merely to get rid of the order for security, — the Court' declined to rescind it." But where a plaintiff who has been ordered to give security for costs, returns within- tho jurisdiction to reside permanently, the order will be dis-;- charged. i^^ :^. V Section V. — Paupers. It has been before stated to be a general rule, subject to very few exceptions, that there is no sort or condition of persons who may not sue in tho Court of Chancery. Amongst tho exceptions to this rule, tlioso who are in indigent circumstances arc not included, and any party, hewever j)oor ho may be, being in other respects competent, has tho same right as another to commence proceedings in tho Coui't of j Chancery for tho assertion of his claims ; and that, without being [ required to give any security for the payment of costs to tho opposite party, in case he fails in his suit.* Lord Eldon, in Ogilvie v. HearnA said, that tho Court would not require security for costs from any man | in England, upon any representation of his circumstances; and thi^ij » FoUia V. Todd, 1 Cham. *i. 288. " Mason v. Jeffrey, 2 Cham. R. 15. 3 O'Connor v. Sierra-Nevada Co., 24 Ben v. 4.35 ; Matheios v. Chichester, 30 "cav. 135. For morel on the subject of security for costs, sec post. * Marsh T. Beard, 1 Cham. R. 390. * This right must not be abused ; see Burke v. Lidwell, 1 Jo. & Lat. 703, where a pauper pluiiitiffl was required to give security : the person really interested having nominally assigned to tbel pauper, in order to avoid liability to costs. * 11 Vcs. 600; and see Wellesley v. Wellesley, 16 Sim. 1. liberality infants. ] tlie childr( and yet be wlio is the cumstancc! might not \fe)ne covert, for it has b person of a I differently friend, but him ill com I married wo to select for I to bo urxioui In conset] J practice of t Iforma paupe. "their wearii I practice of t of equity, al J the provisioi jceeding fiirt In no instf la plaintiff or Iter or adnii jcharacter of < Jexception to filing informi l'/''yes>cost.s, hi jenable the pa m J. L. Kni. Ition of tho ru |for the single It is said, tl ' See Jquirrel v. ""Hindy. ^vkUm, V. Etc.. ..a, 1 II " Beamee on Cost ' Paradice v. She (il.Sr lOJur. 2 8 Jur. 26. ' TlioninsoH v. '/'/; W. \i. 159, V. * Ohiflehl V. Vof,bt PAUPERS. 33 anci) lings ^cn.' lown 3thcr jiveii, y the juris- wards ad no abode, nd the to gel I Bui 'e turns be di^;- Iry few lay not is rule, |,nd any 'ntj has loui't of It being Ippositc "Tearn,^ ly man Ind this I For morel tr plttinlifll bed to tbel liberality seems to be extended to the ease of the next friends of infants. Indeed, any other rule would amount to a denial of justice to the children of poor persons, who might become entitled to property, and yet be precludf d from asserting their right because their father, who is the pioper pei'son to bo their next friend, by reason of his cir- cumstances could not bo so, without giving security for costs, which ho might not be able to procure.' With regard to the next friend of a feme covert, there is, in this respect, a groat diiferonco in the rule ; for it has boon hold, that the next friend of a married woman must be a person of substance ;2 because a married woman and an infant are differently circumstanced, as the infant cannot select his own next friend, but must rely upon the good offices of those who are nearest to him in connection, or otherwise his rights might go unasserted, but the married woman has the power of selecting ; she is, therefore, required to select for her next friend a person who, if her claim should turn out to bo urxfounded, can pay to the defendant the costs of the proceeding. In consequence of the provisions of Stat. 11 Hen. VII. c. 12, ^ the practice of the courts of law has been to admit all persons to sue in \forma pauperis who could swear that they were not worth £5, except their wearing apparel, and the subject matter of the suit ; and the practice of the courts of law in this respect has been adopted by courts of equity, although persons suing in these courts do not come within the provisions of the Act of Parliament above referred to; and, pro- [ceeding further, they have extended the relief to the case of defendants. In no instance, however, has the privilege been exercised, either bj' la plaintiff or a defendant suing in a representative character, as execu- tor or administrator;* but where a person sustained the mixed character of executor and legatee, Lord Eldon held that it formed an lexception to the general rule ; but to prevent any undue practice in \mncosts, his lordship thought that a special order was necessary, to [enable the pauper to proceed in that character as to the legacy. ^ And |Sir J. L. Knight Bruce, V. C, made an exception to the strict applica- tion of the rule, by allowing an executor to proceed in fornui j^auperis, for the single purpose of clearing a contempt incurred in the cause." It is said, that a person filling the character of next friend cannot ' See Jquirrd v. Squirrel, 2 Dick. 7C6 ; Fellows v. Barrett, 1 Keen, 119. ■^ Hind V. ^vhitmore, 2 K. & J. 468; Flliott v. Ince, 7 Do O. M. & O., 475: 3 Jiir, N. 8. 697; Smith V. Etcco, 1 II. & M. 711 : 10 Jur. N. S. 124. '' Boames on Costs, 72. ' Paradice v. Shepherd, 1 Dick. 1.30 : Bcumcs on Costs, 79, App. No. 21 ; Oldtltld v. Coltbetf, 1 Phil. inn : 10 Jur. 2 ; Fowler v. Davies, 10 Sim. 183 : 12 Jiir. 321 ; St. Victor v. /Jevereinr, Bonv, GSJ ; 8 Jur. 20. '' T/iompmnv, Thommon, II. T. 183J, eiliul 1 Turn. & Von. 613; and neo Evermti v. Mutthews, 3 W. It. 169, V. O. W.; Parkitmn v. i'/iaviljeri', ib. :«, V. (.'. W. Oklfleld V. CMett, 1 Coll. 109. X 34 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. sue in forma pauperis,^ although, as wc have seen before, the povei*ty of a next friend of an infant is no ground for dismissing him ; and, until recently, some uncertainty prevailed as to the practice, when a married woman could not obtain a Hubstantial next friend to sue on her behalf; but it has now been determined, that she may, on an ex parte motion, supported by affidavit that she is unable to procure any substantial person to act as her next friend, obtain an oi'der to institute a suit without a next friend, and prosecute it in forma pauperis ;= or to carry on proceedings after decree. ^ It seems also that, in a proper case, an infant w'ill be permitted to sue by a next friend in forma pauperis, on a special ex parte motion, sup- ported by affidavit that the infant cannot get any substantial person to act as next friend.* It has been hold, that a bankrupt may be admitted to petition against his commission in forma pauperis \^ and a husband and wife may obtain an order of course to sue in forma pauperis, in respect of the wife's reversionary interest ; « and where a woman was ordered to be examined pro interesse suo, respecting a claim set up by her to some lands taken under a sequestration, but was unable from poverty to make out Or support her right, liberty w^as given to her to do soinforma pauperis.'' A plaintiff may bo admitted to sue as a pauper, upon the usual affidavit, at any time after the bill has been filed, or summons issued,' but he will be liable to all the costs incurred before his admission." The question whether, after a dismissal of a former fiuit, a plaintiff can be admitted to sue again for the same matter in forma pauperis, with- out paying the costs of the first suit has been much discussed. In a case in Vernon,' « a plaintiff was permitted to file a bill of review, with- out payment of the costs of a former suit, amounting to £150 upon his making oath that he was not worth £40, besides the matter in question in that and another suit between the same parties. That, however, > Anon. 1 Ves. J. 410. •' Jie Foster, 18 Bcav. G25 ; WeUe.sley v. Wdlesley, 10 Sim. 1 : 1 De G. M. & O. 501 ; Wellesley v. Mor- ninglon, 18 Jur. 552, V. C. K.; Be Lancaster, 18 Jur. 229, L. C. & L. JJ.; Gromh v. Waller, 4 De O. & J. 48 : 5 Jur. N. S. 32»( ; He. Barnes, 10 W. R. AM, V. C. S.; Smith v. Etches, 1 H. & M. 711 : 10 Jur. N. S. 124: 3 N. R. 457. Page v. Page, 16 Bcav. 688, where such an order was dis- charged, is overruled by these caees. The order is not as of course, Coulsting v. (Jovlsttng, 8 Bcav. 463: 9 Jur. 687. 3 /)' Oechsner v. Scott, 24 Bcav. 239. Poverty is no excuse for delay in malcing an application to the Court, as in such case the party can apply in forma pauperis, Harris v. Myers, 1 Cham. R. 229. * Lindsey v. TyreU, 2 De G. & J. 7 : 24 Beav. 124 : 3 Jur. N. S. 1014. « Ex parte Northam,iY. & B. 124. « Pitt v. Pitt, 1 S. M. & G., App. 14 : 17 Jur. 571. •f James v. Dore, 2 Dick. 788. * See Braithwaite's Fr.662; bnt a married woman may apply before hill, if the draft bill has been settled and signed by counsel, Wellesley v. Mornington, 18 Jur. 553 ; Be Barnes, 10 W. R. 404, V. C. S. " Anon. Mo8. 68; Davenport v. Davenport, 1 Phil. 12'1. Sec, however, Bennett v. Chtidleigh, 2 Y. & O. C. C. 104 ; SnoivlHUi v. Dixon 2 De (7 & S. 9. »• Fitton V. Earl MacclesMd, 1 Vern. 204. appeai'8 i Eldon in Law, whi Courts of stay a sec costs of tl expressed It is no the suit is the plaint be justly ( Eldon app< conducted for dispau] supplied w assisting h for impeacl deprive hii In Taylo} that a paup to by the very singuli party was p order that t in forma pau} making the Where pa the Court wi was made bj And in Peat to bo commii guilty of gre ' lCVes.410;8e( ' Wild V. aoso) Pr., 874. ' 10 Veg, 407, 4( * 2 Dick. m. ' 2 J. & W. 402, • See Mtton v. . ' Where the app( necessary, an obtainable on burn, 12 Jur. Bradtm'ry v. ttflcate of cot Orimwood v. "3 Sim. 127; and ' i Yea. 630. tAUPERS. I ,86 tintift' rith- In a Iwith- n his stion [ever, f. Mor- Vr, 4 Do i&M. ras dts- J to Uie \ settled C.S. |8Y.& appeai'8 to have been an extreme case ; and the instance cited by Lord Eldon in his judgment in Corbett v. Corbett,^ shows, that Courts of Law, whose decisions are upon this point applicable, by analogy, to Courts of Equity, would, after judgment of nonsuit against a plaintiff stay a second action by the same plaintiff suing as a pauper, till the costs of the former action had been paid. His Lordship, however, expressed a doubt whether the decision he referred to was right. It is no ground of objection to a party suing in forma pauperis, that the suit is a second suit for the same matter as a former suit, in which the plaintiff had likewise sued as a pauper, unless the second suit can be justly characterised as vexatious;" and in Corbett v. Corbett,^ Lord Eldon appears to have held, that the circumstance of the plaintiff having conducted himself vexatiously in the first suit would not be a ground for dispaupering him in the second ; and that the fact of his having been supplied with money by a charitable subscription, for the purpose of assisting him in the conduct of his suit, although it might afford ground for impeachment as maintenance, was no ground upon which he could deprive him of the right to sue as a pauper in equity. In Taylor v. Bouchier,* it is stated by Mr. Dickens to have been said, that a pauper could not appeal, and that the proposition was assented to bj'^ the bar; but in Bland v. Lamb,^ Lord Eldon said that it was a very singular proposition, and that he could not see why, because a party was poor, the court should not set itself right : and he made an order that the appellant should be at liberty to prosecute the appeal in forma pauperis.' And paupers have been allowed to appeal, without making the usual deposit of £20.' Where pauper plaintiffs are guilty of vexatious conduct in the suit, the Court will order them to bo dispaujjered ; and an order to that effect was made by Sir L. Shad well, V. C, upon molion, in Wagner v. Mears.^ And in Pearson v. Belchier,^ Lord Rosslyn said, that a pauper is liable to be committed if ho files an improper bill, as otherwise he might bo I guilty of groat oppression. , • 10 Ves. 410 ; seo Cailtty's Arch, 1281. ' Wild V. Hobson, 2 V. & B. 105, 112 ; sec Brook v. Alcock, nnd Elsam v. AUcock, cUcd 1 Smith's Pr., 874. 5 10 Ves. 407, 409, 412. • 2 Dick. 604. i> 2 J. & W. 402. • See Fitton v. Earl Maccleffield^ 1 Vern. 264 ; Crouch v. Walkr, 4 De G. & J. 43 : 5 Jur. N. S. 320. ^ Where the appellant has not been already admitted a pauper, an order for leave to appeal is necessary, and which can only be made by the Court or Appeal: Seton, 1271. The order is obtainable on exparte motion ; for form of motion paper, see Vol, III. ; sec also Clarke v. Wy- burn, 18 Jur. IffT, L. O. ; Beapa v. Commissioneri of Churcheg, mentioned in note to that case : Bradberry v. Brooke, WL. J. Ch. 576 : 4 W. U. 699, L. J. .F. ; but it must appear from tlie cer- tificate of counsel that he is of opinion there are (>pecial and Htrong grounda for the appeal ; Orimwood v. Shave, 5 W. R. 482, L. C. ' 3 Sim. 127 ; and aeo Ferry v. Walker, 1 ('oil. 229, 230. » 4 Yes. 630. I i I 9 ii m if 36 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. In order to be admitted to sue in forma pauperis, the plaintiff must present a petition containing a short statement of his case, and of the proceedings, if any, which have been had in the cause, and praying to bo admitted to sue in forma pauperis, and that a counsel and a solicitor may be assigned him. ' This petition must be under-^vritten by a certificate signed by counsel^ that he conceives the case to be proper for relief in this Court ; ' and must be supported by an affidavit, sworn by the plaintiff, that ho is not worth the sum of £5, his wearing apparel and the subject-matter of the suit only excepted.* The meaning of the affidavit is, that the plaintiff has not £5 in the world available for the prosecution of the suit ; and if ho can make an affidavit with truth in that sense, the omission to set forth the details of his means, and the circumstances which render them unavailable, is not such an omission of material facts as will induce the Court, on that ground alone, to discharge the order. « It is to be observed, that this affidavit must bo sworn by the party himself; and that in a case in which it afterwards appeared that the affidavit had been sworn by a third person, the party was dispaupered. « The petition and certificate, and an office copy of the plaintiff's affi- davit, and usually also a copy of tho bill, are lodged with the Kegistrar, who draws up and enters an order, by which the petitioner is admitted to sue in forma pauperis, and a counsel and solicitor are assigned to act on his behalf.' The order should be served upon the opposite party as soon as possible ; for in the case of Ballard v. Catling,^ Lord Langdalo, M. E., decided that a plaintiff admitted to sue in forma pauperis should pay rfwes costs to the defendant, in respect of a step in tho cause taken before service of the order ; and in Church v. Marsh,^ Sir James Wigram, V. C, admitted the propriety of the practice, although he held that there was a discretion in the Court in such cases, and that the order to sue in forma p)auj)eris was not necessarily inoperative in all cases until service. The order should also bo lodged with the Record and Writ Clerk, for entry in his ' But -a plaintiff feme covert cannot obtain the order as of course, and it must tliorefore be applied for on an ex parte motion, Cmilsting v. Coulsting, 8 Beav. 403 ; lie Lancaster. 18 Jur. 289, L. C. & L. JJ. ; Be FosUr, 18 Beav. 525. ■•« Ab to the duty of counsel for a pauper, see lies v. Flower, L. T. N. S. 843, L. C. 3 Order of 1688. * The affidavit must not except the Just debts of the plaintiff, as appears at one time to have been allowed : per Sir J. L. Knight Bruce, V.C., in I^rry v. Walker, 1 Coll. 233 ; Beames on Costs, 8(). * Dresser v. Morton, 2 Phil. 280 ; and see, as to the poverty which entitles a person to sue in forma ■pauperis. Goldsmith v. Goldsmith, 5 Hare, 185; Perry v. Walker, 1 Coll. 233, 836. « Wilkimon v. Belsher, 2 Bro. C. C. 272. ^ For form of order, see Beton, 1271. s 2 Keen, 606 ; see also Smith v. Pawson. 3 De O. & 8. 490. » 3 Hare, 652 ; 8 Jur. M PAUPERS. 37 lx)oks,' and iiust bo produced to the officers of the Court, whenever required by them. After admittance, no fee, profit, or reward, is to bo taken of the pauper by any counsel" or solicitor, for the despatch of his business, whilst it depends in Court, and ho continues in forma pauperis ; nor is any aajrce- ment to bo mado for any recompense or reward afterwards ; nnd any person offending is to bo doomed guilty of a contempt of Court; and the party admitted giving any such foe, or making any such agreement, is to bo thenceforth dispaupered, and not bo admitted again in that suit to sue in fortna imuperis.^ The counsel or solicitor assigned by tho G<»urt to assist a person admitted in forma pauperis, either to sue or cicrond, may not refuse so to do, unless he satisfies tho Judge who granted tho admittance with some good reason for his unwillingness.^ When a pauper has had counsel assigned to him, he cannot be heard in person.* No process of contempt will bo issued, at the instance of any jicrson suing or defending in forma pauperis, until it bo signed by his solicitor in tho suit. And all notices of motion served, or petitions presented on behalf of any person admitted to sue or defend in forma pauperis (excei)t for the discharge of his solicitor) must bo signed by his solicitor; and such solicitor should take care that no such process bo taken out, and that no such notice or petition bo served, needlessly, or for vexation, but upon just and good grounds.* In Pearson v. Belsher,'^ it is said that a motion was made on tho part of the plaintiff in a pauper cause, to dismiss the bill against two of tho defendants without costs; but that tho Lord Chancellor ordered it to be mado on payment of costs. It appeal's, however, from tho registrar's book, that tht) order for dismissal in thao case was drawn up without costs ;' and it is to bo observed, that in Corbett v. Corhett,^ before referred to, the pauper's first bill had many years before been dismissed without costs, before hearing, although the cause had reached that stage ; and that this very circumstance was relied upon as a ground for dispauper- ing him in tho second suit, but was not considered as sufficient to induce the Court to make tho order. Tho motion must not bo made ex parte ; ° > Br&ithwaitc'g P. R. 663. a Ord. May, 1661. 3 Ord. Ibid. * Parkinson v. Banbury, 4 Do G. M. & Q. 508. » Ord. May, 1661 ; Ferry v. Walker, 8 Y. & C. C. C. 655 ; 4 Beav. 452; and sec Ord. III. 10, and Brmon v. Dawson, i Hogan, 76 as to the Uabilitica of a pauper's solicitor. « 3 Bro. C. C. 87. 1 Reg. Lib. 1789, B. fo. 524, entered Pearson v. Wo(f: 3 Bro. C. C. 87, Ed. Belt, n. 1; Bcames on C08t8, 88. » 16 Ves. 407, ante. » Parkinson v. Uanbury, 4 De Q. M. & 0. 508. ; and see WUkinson v. .B«/8A«r, 8 Bro. C. C. 272. 1 i-i 88 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. and II paupor cannot aniond his bill by striking out defendants, except on payment of their costs.' It is also to bo observed, that if a cause goes against a pauper at the hearing, ho shall not pay costs to the defendant ; but ho may be punished personally, though such punishment is not very often inflicted. Itsoems to have boon formerly considered, that where a plaintiff sues in forma pauperis, and has a decree in his favour with costs, he will only be entitled to such costs as he has been actually out of pocket ;2 but it is now settled, ihat the costs of a successful paupor are in the discretion of the Court; 3 and where costs are ordered to bo paid to a party suing or defending in forma pauperis, such costs are to bo taxed as dives costs, unless the Court otherwise directs.* It was determined as long ago as the time of Tothill, that a pauper, must pay the costs of scandal in his answer.* ■ . ;'i'i'ty may bo admitted to sue in forma pauperis at any time d\ ^ A^" suit, so if, at any time, it is made to appear to tho Court that ho is of such a' "Uty that he ought not to continue to sue in forma pcu/per!'^, the Court will dispaujier him j« therefore, where it Avas shown to tho C'jui't t;iut a muper was in possession of the land in question, the Court ordered him to be dispaupered, though tho defendant had a verdict at Law and might take a writ of possession at any time;' and in iho ciiso of Boddington v. Wbodley,^ liovd Langdale, M. R, decided that an officer upon half pay (which is not alienable) could not proceed in forma pauperis, notwithstanding ho had taken tho benefit of tho Insolvent Act. The application to dispauper is made^by special motion on notice ; and should bo made without delay. ^ At Common law, if a paupor act voxatiously or improperly in the conduct of the action, the coui-t will order him to be dispaupered;"' and in like manner, in tho Courts of Equity, if a party who is admitted to sue in forma pauperis bo guilty of vexatious delays, or make improper • mikinsony.Beklur'i'Bto.C.C.'irti. » AiigeU V. Smith, Free. Cha. m • Scatchmer v. FoiUkard, 1 Eq. Ca. Ab. 126, pi. 3; Hautton v. Haqer, cited in Angdl v. Smith, Prec. Cha. 220 ; Wallop v. Warburtm. 3 Cox. 40!» ; Rattrey v. deoi-ge, 16 Ves. 2;W ; Church v. Marsh, 2 Hare, 655; 8 Jur. 54; Roberta v. Uoyd, 2 Beav. Zl^; Stafford \. lUgginbotham, 2 Keen 147. ' Orrt. December, 1849: see Bcames on Costs, T7; and for cases since the order, Wellesleyv, Wellesley, 1 Do G. M. & G. 501 ; Mornington v. Keen, 3 W. R. 429 ; 24 L. J. Ch. 400, V. C. W. » Per Lord Eldon, in Rattray v. George, 16 Ve«. 234; Tothill, 237. • Romilly v. Grint, 2 Beav. 180 ; Mather v. Shelmerdine, 7 Beav. 267 ; Butler v. Gardener, 12 Beav. 525; Ferry V. Walker, 1 Coll. 229. 236; 8 Jur. 680; Goldsmith v. Goldsmith, 6 U&ie,li5; Daintree v. Ilaynes, 12 Jur. 594, V. C. E. ' Wyatt'B P. R. 321 ; see Spencer v. Bryant, 11 Yes. 49 ; see also Taprell v. Taylor, 9 Beav. 493. " 5 Beav. 555. » See St. Victor • . Jevereaux, 9 Jur. 519, L. C. ; Parkinson v. Hanburi/, 4 De O. M. & G. 608. «o gChitty'sArch. 1880. PAUPERS, 89 the and to opcr sleir Beav. e,126; motions, he will ho dispaupered, lh()iitil both nations be at peace;' and.it is said, that tho question whether ho is in amity or not, should bo tried by the record, viz., by tho production of the proclamation of war.* It is to be observed, that in declaring war, tho (iueen, in her proclamation, usually qualifies it, by permitting tho subjects of tho enemy resident hero to continue so, as long as they peaceably demean themselves ; so that, without doubt, such persons are to bo deemed in effect alien friends;* therefore, where an alien enemy has lived in England peaceably a long time, or has come to England for refuge and protection, tho Court will discountenance pleas of alienage against him. « It seems, also, that a prisoner of war may sue upon a contract entered into by him during tho time of his captivity ; thus, where tho subject of a neutral stato was taken in an act of hostility to England, on board an enemy's fleet, and brought there as a prisoner of war, it was held that ho was not disqualified, while in confinement, from maintaining a suit on a contract entered into by him as a prisoner of war.' Tho more circumstance of residing in a foreign country, the govcrn- cnt of which is at war with Great Britain, and of carrying on trade hero, is sufficient to constitute anyjperson an alien enemy, oven though would not otherwise bo considered in that character. Thus, a subject fa neutral stato, resident in a hostile stato in tho character of .consul f tho neutral state, will, if he carry on trade in tho hostile country, bo onsidered as an alien enemy, and disqualified from bu'am-; :n tho Courts f England ; although, had ho merely resided there in his diplomatic haracter, ho would not have boon disqualified. ^ And even if a British lubjcct, residing in a foreign stato which is at war with Britain, carry '4Ves.685. I' 76. 690. I' Co. Litt. 129 b. ; 6 T. R. 23; 1 Bos. & P. IM; 3 Bos. & P. 113 ; Alcinom v. Mgren, 4 El. & Bl. 217 ; S. 0. nom. AUenivs v. Nygren, 1 Jur. N. 8. 16. I' Co. Litt, by Harg, & But., 129 b. n. 2. l»76/d. n. 8. ' Wyatt'B P. R. 827. ' I' Sparenburgh v. Bannatyne, 1 Bos. <& P. 163 ; Maria v. UaU, 2 Bos. & P. 236 : 1 Tatmt, 83. ■* Mbretcht V. Susman, 2 V. & B. 323, 327. l\ SUITS BY PERSONS WHO A!IE UNDER DIHAnilJTV. Tlio (liwabi iiiid tukoH av whet her for I obtaining tha tuto a suit f( Hcok no furth( It is to bo on lia-li- tliiTo without ft Hconso from ^'>" ^^•''•'''^'' K^vonimcnl, lii>«^j^^^ ^1^^ tradiiiir will 1)0 considorod such an adlioronco to tlio ()uoon'H ononiicsB,..,,,, •, ..,,,, ■ triwi in rosp as Avill ineapacilalo liini from maintaining a suit in hngland;' '''"'■;,,((.,.(>„( ,, * aliliougli ho bo an amhasHador, or otlior roprosontativo of tho ^"'''wnB i-.^i'ij/ « rosidiiig in a hostilo state, yot if ho carry on trade in such state without a license, ho will deprive himself of tho right lo sue in the municipal <'f)urts of JJritain, because lie is lending hiinself to the |)urposos of llu enemy by furnishing liim with resources.^ If, liowever, a subject of Groat Britain, residing in a Hostile counlry. have a license from tho British Ciovcrnment to triulo, ho will not inciin any disability as long as he confines himself to tho trade authorized lij such license,-' but if a person liaving a license, to reside in u hoslilt country, and to export corn or other specified articles to Britain, wcicB"^ *"S ^^ '•' to use such license bej'ond its expression, ibr the purpose ofdealing i|]B^'"'^'i'^'d into articles to which it has no relation, he cannot maintain that such dialj'"''^' _ cnforc ing is not an enemy's dealing." The disability to maintain a suit on account of alienage, extends ti all cases in which an alien enemy is interested, although his nameddi not appear in the transaction; thus, it has boon held, that an action,! law cannot be maintained upon a policy of insurance ii n tho propcri of an alien ciiom}', even though tho action is brought >o name ofai Knglish agont,^ and though it is alleged that tho alien is indebted to t agent in more money than the value covered by tho policy. « Wlior however, a certain trading of an alien enemy (vis., for specie and goo(_ to bo brought from tho enemy's country in his ships into coloiiM "" ^^^ptcy, w ports) was licensed by tho King's authority,it was hold, that an insuruncl. '^ ''''^^"lontio on the enemy's ship, as well as on tho cargo, was in furtherance of til '■^^*«<'« v. C same policy, which allowed the granting of tho licenses to authorize tH ^' ^^^^Y J^^s' trade ; and that effect ought, therefore, to bo given to tho ordinary moaii''" *^*'^tood wit of indemnity, by which that trade (from the continuance of which \W^^^^ **"y ^^ss public must be sujiposed to derive benefit,) may bo best promoted nil '^ I'^spectivo secured ; tho Coui*t of King's Bench, therefore, determined, that I -^ defence, or action brought by an English agent to recover tho amount of tl'^ matle by pie insurance on the ship, might bo maintained, notwithstanding the silt'^ residing in belonged to an enemy.' It was hold, however, that although in sucil^^ examine wit _application for i » WConnell v. Hector, 3 Bos. & P. 113; O'Mealey v. WUeon, 1 Camp. 482; but he may law provide for the nccesBitics of Engltstamen detained abroad, and may, on the return of pi enforce contracts made for such purposes, Antoine v. Morihead, 6 Taunt. 237 ; Duham Pickering, 2 Starlc. 93. a Ex parte Baglelwle, 18 Ves. 525, 528. * Ex parte Baglehole, 18 Ves. 529. * Ibid. » Bristow V. Towers, 6 T. R. 36. • * Brandon v. Nestdtt, ib. 23. "> Kensington v. Inglis, 8 East, 273, 288. Ill bankruptcy miido before t] But no suit ci '•mtract enter l»eing absolute French subject war, upon whii British ship, af from such pol ' Kensington v. Ing ' Daitbigny v. Bava Eq. PI. 8. 53, n. ( ' Alcinom v. Mgret * Ex parte Boussma ' Jbid.; and see Ex], of contracts by a ' Exixirle Lee, 13 V' ' 4 East. 410. ALIENS. »l, lii" loniiis ;' untl Drown ilhoiit ciiso tho a^ent mi;:?ht huo, bocnnso the Kiiij^'s liconso had |>ui'ge(l tlio trust in rospecl to liijn of all its injuiiouH conHi'(|ueiK't's lo tho puMic iiitc'ivHt, yet that it had not Ihu Hanie otVect of roniovitif^ tlu' jitMsonul ilisjiltility of (ho jinncipal, ho an to onablo him to huo in his own naino.' Tho (liHability to huo nndor which an alien cnoniy lios is personal, :iii(l takcH away from tho (Queen's enemies the lienefit of her Courts, whether for the purpose of immediate relief, or of /^ivin;^ assisUmeo in obtaining that relief elHowlioro; therefore, an alien enemy eannot insti- tute a suit for the jmrpoHo of obtaining a discovery, even though he seek no further relief.^ It in to bo observed, that, ibe right of an alien to maintain a suit ivhiting to a contract, is only sr.ipended by war if the contract. was onlcrod into proviounly to tho commencement of the war, and that it 1 r iliaay be enforced upon tho restoration of peace. ^ Upon this principle, ill bankruptcy, tho proof of a debt duo to an alien enemy, upon a contract made before the war broke out, was admitted, roHorving tho dividend.'' But no suit can bo sustained to enforce an obligation arising upon .•» contract entered into with an alien onei> y during war, such contract iit'ing absolutely void.* And where a policy of insurance, on behalf of French subjects, was entered into just before tho commencement of the war, upon which a loss was sustained in consequence of capture by a British shij), after hostilities had commenced, tho proof of a debt arising from such policy, which hiid been admitted by the commissioner in bankruptcy, was ordered to bo expunged." Tho principle upon which the last-mentioned case was decided is fully stated by Lord Ellenborough in Brandon v. Curling,'^ where it is laid down by his lordship as a rule, that every insurance on alien property by a British subject must be understood with this im'plied exception, "that it shall not extend to cover any loss happening during tho existence of hostilities between tho resjjoctive countries of tho assured and assurer." A defence, on the gi-ound that tho plaintiff is an alien enemy, should be made by plea before answer. Thus, whore a bill was filed by a plain- tiff residing in a foreign country at war with Britain, for a commission to examine witnesses there, and tho defendant put in an answer, an application for an order for tho commission was gi'antcd : though it was iiicipal of the umli'v li inciirl izcd liy hoslilt'i >, won ilin^i,' ill tends ti me iltm ction ii iropor no of ill d to tl •Wlior id goa coloiiJ! isuraui oof tl )rizo tl y mcai hich t ted ai that of tl the sh n suci 3 nay lawt n of pa )uhamm ' Kensington v. Inglis, 8 East, 273, 288. " Dmibigny v. Davallm, 2 Anst. 462 ; but see Albretcht v. Smsman, 2 V. & B. 324, 326, :K7 ; Slory. Eq. PI. 8. 53, n. (4). ^ Alcinom v. Nigren, 4 El. & Bl. 217 ; S. C. nom. Atcenivs v. Nygren, 1 Jiir. N. S. 16. * Exparte Boussmaker, 13 Vea. 71. ' Ibid.; and sco Exposlto v. Bowden, in Ex. Ch., 7 El. & Bl. 779: 5 W. K. 732, as to the dUiiolution of contracts by a declaration of war. « ExiKirte Lee, 13 Vcs. ftl. ' 4 East. 410. lO V 46 StJITS i8Y PERSONS WHO AttE UNDER DISABILITY. objected that the Court ought not to grant a commission to an enelny's country, the Court being, as it weems, of opinion that the objection had come too late.' It does not appear, from any case in the books, what would be the effect of a war breaking out between the country of the plaintiff and Great Britain, after the commencement of the suit ; but, from analogy to what is stated by Loixi Chief Baron Gilbert to be the practice of the Court with regard to outlawry, namely, that if it is not pleaded it may be shown to the Court on the hearing, as a peremptory matter against the plaintiff's demands, because it shows the right to the thing to be in the Queen, 3 it is probable that the Court would, under such circum- stances, stay the proceedings. It appears to be the essence of a plea that the plaintiff is an alien enemy, to state that the plaintiff was born out of the lieganoe of the Queen, and within the lieganco of a state at war with her ; but where the plea contains words which amount in substance to an allegation of these facts, it will be sufficient, although they are not averred with the same strictness that is required by the rules of law. Thus, where a plea averred that the plaintiffs were Frenchmen, aliens and enemies of the King, the Court hold that the plea was suffi \nt : the word alien being a legal term, im])orting born out of the liega. 3 of the King, and within the liegance of some other state ; and the words. Frenchmen and enemies of the King, showing that they were the subjects of a state at war with this country. ^ It is to be observed, that the Courts hero take notice, without proof, of a war in which Britain is engaged; but a war between foreign countries must be proved. < In all cases of a person permitted to sue in equity, if ho state himself in his bill to be resident abroad, or if it come to the knowledge of the defendant that he is actually so, the defendant may obtain an order of the Court that the plaintiff shall, before he proceeds further, give security to answer to the defendant the costs of the suit.^ The practice with respect to this rule has been before stated ;" and is applicable to aliens and foreigners, as well as to natural-born subjects.' . » CahiUy. Shepherd, U Yea. sas. « Glib. For. Rom. 68. "' ' DatMgny v. Davallon, 2 Anst. 4G2, 468. • Bolder v. Lord Huntinqjield, 11 Ves. 292 ; and see Alcinous v. Nigren, \ El. & Bl. 217; 8. C. notn Atoenius v. Nygren, i Jur. N. 8. 10. • Meliorucchy v. Meliorucchy, 2 Ves. 8. 24 ; Green v. Charnock, 1 Vcb. J. 390 ; Hoby v. Hitchcock; 6 Ves. 099 ; Seilaz v, Hanson, ib. 8(1 ; Drever v. Maudesley, 5 Russ. 11. * • See Ante. ^ For more as to trading with alien enemies, see The Hoop, Tudor's L. C. Merc. Law, 073, 088. The disa attainder, o disqualified property w bankruptcy that, by the sion or actio uncertificate and may, in Thus, und< to the comi might mainti and papers ; » bankrupt in ( esiato, and pi ..:\tract bet\A an action aga And so, as a property aga action of asmi performed, 5 ai commission oi may also mait well as trespa bankruptcy ; * to the banlcruj in fact sues at In Equity a been allowed t injury of a pri> parties;'" and ^ allowed to file ' Seo Herbert v, St » Perkin v. Procto ' Sumtnersett v. Ji * Coles V. Barrow, ' CAimmdalev. 1 Selwyn's N. P. • Evans V. Brown, ' Fowler v. Bmen, Weblb V. Fox, it • Clarke v. Calvert * Gumming v. Roe '" Semtie v. LornXon Jign BANKRUPTS. Section III. — Bankrupts. 41 The disability to maintain a suit on account of alienage, outlawry, and attainder, or conviction, arises partly from the plaintiff being personally disqualified, and partly from his not being capable of holding the property which is the object of the suit. The disability accruing from bankruptcy, arises from the latter cause only, or rather from the fact that, by the bankruptcy, all the bankrupt's property, whether in posses- sion or action, is vested in his assignees ; and a bankrupt, even though uncertificated or undischarged, is not personally disqualified from suing ; and may, in many cases, sustain suits either at Law or Equity. ' Thus, under tho old Bankrupt Law, if a bankrupt disputed his liability to the commission, or tho validity of the adjudication under it, he might maintain trespass against his assigneeSj^or trover for his books and papers ; ^ and it has been held, that where assignees have employed the bankrupt in carrying on his trade or manufacture for the benefit of the esiate, and paid him money from time to time, it is evidence of such a ..;\tract between him and the assignees, as will enable him to maintain an action against them for a compensation for his work and labour.* And so, as a bankrupt, though uncertificated, can acquire and hold property against every one except his assignees, he can maintain an action of assumpsit against a third person for his own work and labour performed, s and for money lent or advanced « since tho issuing of tho commission or fiat ; and where no claim is made by the assignees, he may also maintain trover for goods acquired after his bankruptcy,' as well as trespass quare clausumf regit, for a trespass committed before his bankruptcy ; ' for the defendant, in any of these actions, cannot object to tho banlonipt's claim unless his assignees interfere, and the bankrupt in fact sues at Law as a trustee for his assignees. » In Equity also, a bankrupt who had not obtained his certificate has been allowed to file a bill to restrain a nuisance, or the infliction of any injury of a private or particular nature, without making his assignees parties ;'" and where sued at Law upon a bond or note, he has been allowed to file a bill of discovery, in oi*der to obtain proof that such ' See Herbert v. Satjer, 5 Q. B. 978 ; Calvert on Parties, 199, el seq. " Perkin v. Proctw, 3 Wils. 383. ^ Summersett v. Jarvts, C Moore, 66 : 3 B. & B. 3. * Coles V. Barrow, 4 Taunt. 754. ' CMmendalev. Tomlitison, 4 Doug. S18; 1 Cooke's B. L. 428 ; Silk v. Osborne, 2 Ksp. 140; see Sclwyn's N. P. Sup. 838. « Evans v. Brown, 1 Ksp. 170. ' Fowler v. Down, 1 Bos. & P. 44 ; Laroclie v. Wakeman, Peake 100 ; Webb v. Ward, 7 T. E. 896 ; Webb V. Fox, ib. 391 ; Hole v. Hole, 10 Jur. N. 8. 1089 ; 18 W. R. 89, M. R. ' Clarke v. Calvert, 8 Moore, 96. • Cumming v. Roebuck, 1 Holt, N. P. Wi. I '" Sempie v. London and Birmingham Railway Company, 9 Slui, 309, r 48 SUITS BY PERSONS WHO ARE UNDER DISABILITY. bond or note was fraudulently procured ; the specific relief prayed is, however, material in determining whether the assignee is a necessary pai'ty to the bill ; for where it prayed that the instrument upon which an insolvent debtor was sued at law might be delivered up, the assignee was considered a necessary party. ' Where, under the former Bankrupt Acts, persons claiming to be creditors of bankrupts, instead of seeking relief under the commission, brought an action against the bankrupts^ and the banla-upts filed a bill seeking a discovery in aid of their defence to the action, and praying that the accounts between them and the plaintiffs at law might be taken, and that the plaintiffs at law might pay the balance, a plea of bankruptcy was overruled : Sir Thomas Plumer, V. C, being of opinion that the banla'ujjts were entitled to the discovery and account, although they were not entitled to that part of the prayer which sought the payment to them of the balance. ^ In general, however, a bankrupt, although he is by law entitled to the surplus of his estate which remains after payment of his debts, cannot bring a bill in equity for any property which is vested in his a>i)signee8 under the adjudication, even though there may be collusion between them and the persons possessed of the property ; ^ thus, where a bill was filed by a bankrupt to recover property due to his estate, stating that the commission against him was invalid, and that there was a, combination between his assignees and the debtor, to which a demurrer was put in. Sir John Leach, V. C, allowed the demurrer : saying, that if it had been true that the commission was invalid, the plaintiff ought to have tried its validity by an action, and could not by bill impeach the commission ; and that if there were a combination between the debtor and his assignees, his proj)er course was to ajiply, by petition, to have the assignees removed and new assignees appointed.'' In the case of Heath v. Chadwick,^ the question arose, whether creditors of an insolvent, under the English Insolvent Debtors' Act," could main- tain a suit respecting property, or rights alleged to have belonged to the insolvent, and to bo vested in his assignee, upon an allegation of collusion between the assignee and the party against whom relief is prayed. Lord Cottenham reviewed the various cases upon the subject, • Balls V. Sfrntt, 1 Hare, 140; Meddmocrqft v. Campbell, 13Beav. 184. " Lowndes v. Taylor, 1 Mad. 423. This decision was afterwards affirmed on appeal, ib. 426 : 2 Rose, 432 ; and see Oovet v. Armitage, 2 Anst. 412 ; Kaye v. Fosbrooke, 8 Sim. 28. ^ Property belonging to the bankrupt as fijctor, executor, or tmstce, does not pass to theassijnieeH : Arclibold's Bkpcy. .'«8-333 ; Ex parte Ellis, 1 Atk. 101 ; Benmt v. Davis, 2 P. Wms. 3lii ; E.v parte Butler, Amb. 74 ; Ex parte Chion, 3 P. Wms. 187, n. {a) ; Godlfrey v. Purzo, ib. 18.5 ; Pentiell v. D^ell, 4 De G. M. & G. 872, 379 ; and see Lewln on Trusts, leO-iSS. * tlammond v. Attwood, 3 Mad. 158 ; see also Yewem v. Robinmn, 11 Sim. 105, 120. » 2 Phlll. 049 ; and boo Majw v. Ankland, 3 Hare, 77 ; Goldsmith v. RusseU, fi Do O. M. & O. 547 : Tiidtvav V. Jones, 1 K. & J. 091, and cases at Common Law there cited ; and tlie observation-^ of Lord Coltonliar I in Rochfort v. Battersby, 2 U. L. C'n. 103, 400 ; Davis v. anell, 2y Bea v. 891 . " l&2Vic.c. 110; 5&6V1C. c.llO; 7&8Vic.c. 90. and from cannot un< applicable distinction and their c In Sprag b&nkrupt c of his righ demurrer "w estates in balance to collusion. As a banl vested in hi lie cannot n receipts and surplus. Tl since been a It is to be use a technic the property creditors; ar country, whe no difference even though another coun The rules > who had tak( equally consi( respect of an but these pro traders or nc laws. 7 ' 6 Vcs. 683, 589. » 9 Ves. 77, 82. " Saxton V. Davit * Sill V. Worswtc} Benfield v. So " GiU V. Flemina, &G.1; Cook 869 : 18 W. R. Wearina v. £ deceasea insol 2 De G. F. Jc J " 24 A 25 Vic. c. 1! ' Ibid, 8. 09. BANKRUPTS. 49 and from his judgment, it appears that the creditors of an insolvent cannot under such circumstances sue, and that the same principle is applicable also to cases in bankruptcy ; and further, that there is no distinction in this respect between bankrupts or insolvents themselves and their creditors, or persons claiming under them. In Spragg v. Binkes,^ it was hold by Lord Alvanley, M. E., that a bankrupt cannot file a bill for the redemption of a mortgage, in respect of his right to the surplus of his estate ; and in Benfield v. Solomons,'' a demurrer was allowed to a bill by a bankrupt against a mortgagee of estates in England and Berbiec, for an account and payment of the balance to the assignees, who were made defendants and charged with collusion. As a bankrupt cannot file a bill against strangers respecting property vested in his assignees under the bankruptcy, so it has been held that he cannot maintain a suit against his assignees for an account of their receipts and payments under the bankruptcy, and for payment of the surplus. This doctrine was clearly laid down by Lord Eldon, and has since been acted upon.^ It is to be observed, that whatever property a bankrupt has, or, to use a technic.'l expression, may depart with, becomes, upon bankruptcy, the property of the assignees, who are to have it for the benefit of the creditors ; and the circumstance of such property being in a foreign country, where the bankrupt laws of this country do not prevail, makes no difference ; so that a bankrupt cannot maintain a suit in this country, even though the property in respect of which the suit is instituted is in another country.* The rules with regard to bankrupts, applied, by analogy, to persons who had taken the benefit of the Insolvent Debtors' Acts, who were equally considered as being divested of all right to maintain a suit in respect of any surplus to which they might eventually bo entitled ; * but these provisions are no longer in force ; " and all pei'sons, whether traders or non-traders, are in England now subject to the bankrupt laws."' ' 6 Vcs. 583, 589. '^ 9Ve9. 77,82. » Saxton V. Davis, 18 Yes. 72, 79; Tarleton v. Ilornby, 1 Y. & C. Ex. 172, 188. * Sm V. Worawick, 1 H. Bl. 665 ; Hunter v. Potts, 4 T. R. 183 ; Phillips v. Hunter, 2 H. Bl. 402 ; Benfield v. Solotnons, 9 Yes. 77. ' OiU V. Fleming, 1 Ridg. P. C. 431 ; Spragg v. Binkes.G Ves. 683; Dysm v. Hornby, 7 De G. M. & 0. 1 ; Cook V. SturgiSyS De G. & J. 506 : 5 Jur. N. 8. 475 ; Trovp v. Ricardo, 10 Jur. N. S. 859 : 18 W. R. 1135, M. R. : 13 W. K. 147, L. C. As to Insolvents under 6 A Vic. c. 110, st-u Wearing v. Ellis, 6 De O. M. & G. 696 : 2 Jur. N. S. 201, 1149. A pult for administration of a deceased Insolvent's estate may be institntcd by a scheduled creditor, Oalsivorthy v. Durant, 2 De O. F. & J. 406 : 7 Jur. N. S. 113 ; 29 Beav. 2TT : «• Jur. N. H, 743. « 2-1 A 25 Vic. c. 134, s. 230, and Sched G. ■ Ibid, 8. 69. "J ," 50 suits BV persons WItO ARE UNDER DISABILITY. But although noithor bankrupts nor insolvent debtors can sue in respect of their interest in the surplus of the property, yet, im they have such uu interest in the surplus us is capable of assignment, it Hcems that the persons claiming under such asHi^nnients, if made for valuable consideration, may maintain billis respeclin;^ them. This appears to hftvo been the opinion of Lord Alvanley, M. II., in Spra^jg v. Jiinkes,^ though his Lordshij) seems to have doubted whether tbe Court luul not gone too far in permitting such asHignments, and to have held, that a party could not parcel out a right in accounts to be taken to dittei'cnt persons, so that every one of those persons might file a bill pro interessc sm. The disability of a bankrupt to maintain a suit, docs not apply to a bankrupt who has obtained his order of discharge, where he is suing in respect of property acquired after his ordor of discharge has taken effect. In most respects the situation of an insolvent debtor, as far as regards the right to sue for property acquired previous to his oharKe and the time allowed for appealing therefrom, belongs to the bankrupt, when the order is not recalled or suspended on appeal. Be Laforest, 9 Jar. N. S. 851: UW.Tl. 788, L.C. * . >v . » Ber^fldd v. Solomom, 9 Ves. 77, 88. « 1 Anst. 101 » Turner v. Bobiimn, 1 S. & S. 3 ; Sergrove v. Mayhew, 3 M'N. «& G. 97 : Lane v. Smith, 14 Beav. 49. ni In plo stated su a commii under wl liis estate the assitr trmling, | of bankri found bar be stri(!tl WithrtJ ment of u i-uptcy of renders tli m Rarulall is or is noi of the Cou: The rosii of a bank] obtain, on upon the bankrupt, \ must adopt plaintiff obi •nay move of the decea that the ass after notice purpose of] tlie plaintiff' of course, an also bo supp ' Carleton v. L ^ See 12 & 13 V " Lee V. Zee, 1 ■* 18 Ves. 427. " Jackson v. m " Weeler v Mali 10 Beav. 484 ' ThiB is the eoi Ings, Clarke application 1 was refused foreign coun case, see Set Vic. c. 134, B, " As to the propi " Fitrter v, Cox, BANKRUPTS. 6^1 In pleading bankruptcy, it was tho rule that all the factn should bo stated Huccossivoly and distinctly; and it was not sufficient to say that a commission or fiat of bankruptcy was duly issued against the plaintiff*, under which ho was duly found and declarv I a baidtrupl, and that all his estate and effects had boon duly transferred to or become vested in tho assignees:' a j)lea of bankruptcy must have stated distinctly the trtuling, tho contracting debts, tho petitioning creditor's debt, the act of bankruptcy, tho commission or fiat, and that the ])laintiff had Ixjon found bankrupt ; but it may be doul)ted how fai* this rule would now be strictly enforced. =» Witk respect to the bankruptcy of tho plaintiff after tho commence- ment of a suit or after plea and answer put in, it seems that the bank- ruptcy of a solo plaintiff does not strictly cause an abatement, but renders tho suit defective ;=» or, according to the language of Lord Eldon, in Ramlallv. llumford,* " this Court, without saying whether ban kruj)tcy is or is not strictly an abatement, has said that, according to the course of the Court, tho suit is become as defective as if it was abated." Tho result in practice of the above principle is, that if the assignees of a bankrupt, sole plaintiff, desire to prosecute the suit, they must obtain, on motion of cour«e, an order enabling them so to do. ^ And upon the non-prosecution of a suit in which the plaintiff has become bankrupt, the defendant, if he wishes to got rid of tho suit entirely, must adopt a course of proceeding analogous to that pursued where tho plaintiff obtains an injunction and dies; in which case, tho defendant may move that the injunction bo dissolved, unless tho representatives of tho deceased plaintiff revive within a certain time;" ho must move that the assignees may, within a specified time (usually three weeks) after notice of the order, take proper supplemental proceedings for tho purpose of prosecuting the suit against him ; or in default thereof, that the plaintiff 8 bill may stand dismissed.' This is, however, not a motion of course, and the assignees must bo soi-ved with notice of it.' It should also be supported by an affidavit of facts ;» and it is to be observed, that • C'arleton v. Leightm, 3 Mcr. 007, 071. 5 See 12 & 1.3 Vic. c. 10(i, b. 2.35 ; but see Lane v. Smith, 14 Bcav. 4!». ^ Lee V. Lee, 1 Ilarc, C21. " 18 Ves. 427. " Jacknon v. Higa Railway, 28 Bcav. 75. » Weeler v Matins, 4 Mad. 171 ; Lord Iluntingtoicer v. Sherborn, (5 Bcav. 380 ; RMnson v. Norton 10 Bcav. 484. ' This Is the course 1)efore decree ; after decree, tlio motion should ask to stay all further proceed- ings, Ctarkev. Tippitig,WBe&v. 12; and see WMlmore v. Oxborrmv, 1 Coll. 91; and an application by thedefeuduiit for an order to revive under 15 & 16 Vic. c. 86, s. 58, after decree was refused, Maio v. Fearson, 12 W. It. 701, M. R. ; where the banliruptcy has occurred in a foreign country, see liaurltaud v. Hovrbaud, 12 W. K. 1024, V. O. W. And for an order In like case, see Seton, 1278. As to tho effect on a suit of a trust deed by the plaintiff, under 24 & 25 Vic. c. 134, see s. 197. 1 " As to the proper time for raakinp; the applications, see Sharp v. Iliillet, 2 S. & 9. 4fJ0. » Porter v. Cox, 5 Mad. 80. >: 62 SUITS BV PERSONS WHO ARE UNDER DISABILITY. the dismissal will be without costs, as a bankrupt cannot be made to pay costs. • Where, however, the bankruptcy takes place between the hearing and judgment, the Court will not, before giving judgment, compel the assignees to revive. ^ After the bankruptcy of the plaintiff, the defendant cannot make the ordinary motion to dismiss; and in Sellas v. Dawson,^ liord Thurlow held, that such an order, pending the bankruptcy of the plaintiff, was a nullity, and therefore refused to discharge on.o obtained under such circumstances . The rule of practice, by which a defendant is required to give notice to the assignees in the case of the bankruptcy of a plaintiff, is confined to the case of a sole plaintiff, who, becoming bankrupt, is supposed to bo negligent of what is sought by the bill, and the Court, to prevent surprise and save expense, requires notice to be given to the assignees ; but there is no instance where the Court has taken upon itself to inter- pose the rule where there are two plaintiffs, one of whom is solvent and the other insolvent ; for it is as competent to the solvent plaintiff as it is to the assignees, to rectify the suit.* In the case of an injunction granted at the suit of a plaintiff who afterwards becomes bankrupt, the practice which has been adopted is to require the bankrupt to bring his assignees before the Court ; and the Court will make an order to dissolve the injunction and dismiss the bill, unless the assignees shall be brought before it within a reasonable time ; which order, it seems, may be served upon the bankrupt alone, as it is supposed that the bankrupt will find the means of giving his assignees notice. ^ Such an order will also be without costs. Section IV. — Infants. We come now to the consideration of those disqualifications which incapacitate a person from maintaining a suit alone, but do not prevent his suing, provided his suit be supported by another person. Such disqualifications arise from infancy, idiocy, lunacy or imbecility of mind, and marriage. With respect to infants, idiots, lunatics, and persons of weak minds, the law considers that, by reason of the immaturity or imbecility of their intellects, they are incapable of asserting or protect- ing their own rights, or of forming a judgment as to the necessity of " Wheeler v. Malin3^4 Mad. 171 ; Lee v. Lee, 1 Uare, 621 ; Meiklam v. Elmore, 4 De O. & J. 208 ; 5 Jur. N- S. 904 ; Boucicault v. Delqfleld, 10 Jur. N. S. 937 ; 18 W. R. 1086, V. C. W. ; 10 Jur. N. 8. 1008;13W. K. 64,L.JJ. « Boucieault v. DelaMd, 12 W. R. 8, V. C. W. ■ 2 Anst. 458, n. * Caddick v. Masson, 1 Sim. BOl ; Latham v. Kenrick, ib. 502, » Randall v. Mun^wd, 18 Ves 424, 428 ; Wheeler v. Malins, 4 Mad. 171. apply] therefl should should Court With r want o; the pro the con maintai In th the peci stance o Thelj periods,) and disc an infan his full £ An ini precedes make no do at. full that if on on the laf the morn he was th Althou incapaciti sustained his rights child has it is concc in law an behalf; ar tion to re Mobinson v point that the suit of * Jacob's La » Balk. 44, OS » See Wallis * See Musgn »8Atk.809, INFANTS. 53 ■'■'■, applying for protection or redress to the tribunals of the country ; it therefore requires, that whenever it is necessary that application should be made on their behalf to the Court of justice, such application should be supported by some person, who may be responsible to the Court that the suit has not been wantonly or improperly instituted. With respect to married women, their incapacity does not arise from want of reason, but from the circumstance that, by the law of England, the property of all women in a state of coverture vests in the husband ; the consequence of which is, that, as a general rule, no suit can be maintained by the wife without her husband being made a party. In the present section, the attention of the reader will be directed to the peculiarities in the practice of the Court, arising from the circum- stance of the party, or one of the parties suing, being an infant. The laws and customs of every country have fixed upon particular period8,at which persons are presumed to be capable of acting with reason and discretion. According to the law of this country, a person is styled an infant until he attains the ago of twenty-one years, which is termed his full age. ' An infant attains his full ago on the completion of the day which precedes the twenty-first anniversary of his birth ; but, as the law will make no fraction of a day, he may do any act which he is entitled to do at. full age, during any part of such day. Thus, it has been adjudged, that if one is born on the 1st day of February, at eleven at night, and on the last day of January, in the twenty-first year of his age, at one in the morning, he makes his will of lands and dies, it is a good will, for he was then of full age.^ Although, for many purposes, an infant is under certain legal incapacities and disabilities, there is no doubt that a suit may be sustained in any Com*t, either of law or of equity, for the assertion of his rights, or for the security of his property ; and for this pui*pose, a child has been considered to have commenced his existence as soon as it is conceived in the womb. ' Under such circumstances, it is termed in law an infant en ventre sa mere, and a suit may be sustained on its behalf; and the Com*t will, upon application in such suit, grant an injunc- tion to restrain waste from being committed on his property.* In Robinson v. Litton,^ Lord Hardwicke seems to have considered, that the point that a Court of equity would grant an injunction to stay waste at the suit of an infant en ventre sa mere, though it had often been said > Jacob's Law Diet. tit. iFmnt. a Salk. 44, 626 ; 1 Ld. Ray. 480 ; 2 2b. 1096; 1 Bla. Com. 463. s See WalUs v. Hodaon, 8 Atk. 117. * See Musgrave v. Parry, 8 Vern. 710. * 3 Atk. S09, Sll ; see also WcOlis v. Hodtm, 2 Atk. 117. 54 SLITS BY PERSONS WHO ARE UNDER DISABILITY. arguendo, had never been decided; but it seems that, though Lord Hal'iwicke was not aware of the circumstance, such an injunction was actually granted by Lord Keejier Bridgman. * Bu , although an infant may maintain a suit for the assertion of his rights, ho can do nothing which can bind himself to the pei'formanco of any act ; and therefore, where from the nature of the demand made by the infant it would follow that, if the relief sought were granted, the rules of mutuality would require something to bo done on his part, such a suit cannot be maintained. Thus it has been held, that an infant cannot sustain a suit for the specific performance of a contract : because, in such cases, it is a general principle of Courts of equity to interpose only whore the remedy' is mutual ; and if a decree were to be made for a specific i)crforraance, as prayed on the part of the infant, there would be no power in the Court to compel him to perform it on his part, either by paying the money or executing a conveyance. Although an infant, as we have seen, is in general caj)able of main- taining a suit, yet, on account of his supposed want of discretion, and his inability to bind himself and make himself liable to the costs, he is incapable of doing so without the assistance of some other person, who may be responsible to the Court for the proj^riety of the suit in its institution and progress.' Such person is called the v£xt friend of the infant ; and if a bill is filed on behalf of an infant without a next friend, the defendant may move to have it dismissed with costs, to be paid by the solicitor. In a case, however,. where a bill was filed by the plaintiff as an adult, and it was afterwards discovered that he was an infant at time of filing the bill, and still continued so, whereupon the defendant moved that the bill might bo dismissed, with costs to bo paid by the plaintiff's solicitor, the Vice-Chancellor made an order thai; the plaintiff should be at liberty to amend his bill, by inserting a next friend." When an infant claims a right", or suffers an injury, on account of which it is necessary to resort to the Court of Chancery, his nearest relation is supposed to be th person who will take him under his pro- tection, and institute a suit to asserf his rights ; and it is for this reason that the person who institutes a suit on behalf of an infant is termed his next friend. But, as it frequently happens that the nearest relation of the infant is the person who invades his rights, or at least neglects to give that protection to the infant which his consanguinity or affinity • LjitterePs case, cited Prec. Ch. BO. » Flight V. Botlmul, 4 Rusa. 898; Hargrove v. Hargrove, 12 Beav. 408. s There must be a next friend for every application on behalf of an infant, Cox v. Wright, 9 Jur. N. S. 981 : 11 W. R. 870, V. C. K. An inAnt, by being made party to a suit, becomes thereby a ward of Court, Gynn v. Oilbord, 1 Dr. & S. 366: 7 Jur. N. 8. 91 ; and see He Hodge'' s Trmt, 3 K. &J.213:8Jur. N. S.860. * Flight V. BoOand, 4 Russ, 898. calls upon person to part whic friend to \ observed, Court, or course is r next frien( called; an is no cause As any] occurs, tha his name I cases, the ( a Master, ti is ascertain decree has paper for h the Coiu't b the suits ar has been ce motion, on : motion, on ] an inqury.» If, upon t although it it will be n Court will s another nex bent uj)on h forence in tl prevail." ^J 1 story Eq. PI, dcfentlant, v. C. E. » Ld. Red. 35. 3 Toth. 173;W * Ld, Red. 27; * Where a deer lor V. Oldh * Bundle v. Bu ' Sullivan v. & ^ Staniland v. , Ibid. '» Star ten v. Ba >' Per Lord Cot( y. C. K. INFANTS. 56 calls upon him to give, tho Courl, in fuvour of infants, will permit ny person to institute suits on their behulf;' and whoever thus acts iho part which tho nearest relation ought to take, is also styled tho oxt friend to the infant, and is named as such in tho bill. a And it is to bo observed, that although an infant has a guardian assigned him by tho Court, or appointed by will, yet, where tho infant is plaintiff, tho course is not to call the guardian by that luime, but to call him the next friend. But whoro the infant is defendant, tho guardian is so called; and if the guardian be so called where the infant is plaintiff, it is no cause of demurrer. 3 As any person may institute a suit on behalf of an infant, it frequently occurs, that two or more suits for the same purpose are instituted in his name by different persons, each acting as his next friend ; in such cases, the court will direct an inquiry to be made at chambers, or before a Master, as to which suit is most for his benefit ; and, when that point is ascertained, will stay the proceedings in tho other suits. * Where no decree has been made in any of the suits, * and none of them are in the paper for hearing,* such inquiry will be directed on an ex^iarte motion ; the Coiu't being satisfied, in tho first instance, with the allegation that the suits are for the same purpose.'' When tho result of the inquiry has been certified, any application that may bo necessary is made by motion, on notice. ^ Under special circumstances, tho Court may, upon motion, on notice, make an order staying tho suits, without directing an inqury.» If, upon the inquiry at chambers, or before a Master, it appears that although it would be beneficial to the infant to prosecute the first, yet it will be more beneficial to him to prosecute a subsequent suit, the Court will stay the first suit, and give the next friend his costs.** When another next friend takes upon himself to file a second bill, it is incum- bent uj)on him to show some defect in the first suit, or a decided pre- ference in tho second ; if their merits are only equal, tho priority must prevail." The order directing the ii juiry p ibuld be made in both suits. /fc' . ' story Eq. PI. 8. 68. n, ; Andrews v. Craddock, Prec. Cli. ))76; sec Cross v. Cross, 8 Beav. 455. A dcfencfant, however, may not bo next friend, Payne v. Lilde, 13 Beav. 114 : Anon. 11 Jur. 258, V. C. E. " Ld. Red. 25. 3 Toth. 173; Wyatt's P. R. %U. * Ld. Red. 27; Mortimer v. West^ 1 Swanst. 358. ° Where a deerce has been made in one of the suits, it ia not usual to direct Hucli a reference, Tay- lor V. Oldham, Jac. 527; but see Harris v. Harris, 10 W. R. 31, V. C. K. « Bundle v. Sundle, 11 Beav. 33. ' SuUivan v. SuUivan, 2 Mer. 40. s Staniland v. Stantland, M. R., 21 Jan., 18M ; and see Frost v. Ward, 12 W. R. 285, L.JJ. » Ibid. "» Starten v. Bartholomew, 6 Beav. 143. i> Per Lord Cottenham, Campbell v. CampbeU, 2 M. & C. 30; and gee Harris v. Harris, 10 W. R.81, V. C. K, 5 S 60 8UIT8 BV PERSONS WHO ARE UNDER DISABILITY. The order is obtained on special motion, of which notice must bo given to the other parties to the suits,' and docs not of itself stay the pro- ceedings in the suits ;3 and the amendment of one of the bills, pending the inquiry, does not stay the inquiry.'* As a check to the general license to institute suits on behalf of infants, the Court will, upon the application of the defendant, or of any person acting as next friend of the plaintiff for the purpose of the application,* where a strong case is shown that a suit pioferred in the name of an infant is not for the infant's benefit, or is instituted from improper motives, direct an inquiry concerning the projirioty oX the suit ;* but an objection at the hearing to the propriety of the suit was held too late. « If, upon such inquiry, it appears that the suit is not for the benefit of the infant, either the proceedings will be stayed,' or else, if there is no excuse for the fact of the suit having been instituted, the bill will bo dismissed with costs, to bo paid by the next friend ; ' and in the case of Sale v. Sale,' where it appeared clearly upon affidavits that the suit was commenced by the next friend, to promote his own views, and not for the benefit of the infant. Lord Langdale, M. R., summarily, and without a reference to the Master, made such an order. And in a case before Lord Brougham, whore an application was made, on behalf of the defendants, that the next friend of the infant plaintiff might be restrained from further proceeding with the suit, and for a reference to the Master to appoint a new next friend to conduct it in his stead : which aj)plica- tion was supported by strong affidavits, to show that the suit had, in fact, been instituted from improper motives, for the purpose of benefiting the solicitor, at whose request the person named as next friend (who was a stranger to the family, and had lately held the situation of farm servant or bailiff at monthly wages) had consented to act as such : his Lordship directed the Master to inquire, not only whether the suit was for the benefit of the infant, but whether the next friend was a fit and proper person to be continued in that character. The Master was also directed to laquire who would be the proper person to conduct the suit, > See Bond v. Barnes, 2 De G. F. & J. 387. a Westbij V. Weatbij, 1 De G. & 8. 410. 8 Goodale v. Gawthorne, 1 M'N. & G. 319, 323 ; but it is irregular, in Bucli a case, to obtain an orckr of course, to amend, Fletcher v. Moore, 11 Beav. 617. * Guy V. Guy, 2 Beav. 460. * « Stevens v. Stevens, 6 Mad. 97 ; Lyons v. lilenkin, Jac. 259 ; Sma<',lwood v. Sutter, 9 Hare 34. • Lacy V. BurchnaU, 3 N. R. 293. T Ld. Red. 27; see also I)a Costa v. Da Costa, 3 P. W. 140: Richardson v. MiUer, 1 Sim. 133. In Da Costa V. Da Costa, the Inquiry was directed upon a petition; but the modern practice is to apply to the Court upon motion, of which notice is given to the next friend. See, however Anderton v. Yates, 5 De G. & 8. 202. " Fox v. Suwerkrop, 1 Beav. 583. » 1 Beav. 686 : see also Guy v. Guy, 2 Beav. 460 ; Staniland v. Staniland, ante, p. 73. INFANTS. i ill case the next friend was removed, and to report special circumstances. » The result of the cases seems to bo, accoi*ding to the language of Lord Liingdalc, M. R., in Startoi v. Barthotomeic," that the Court exercises a very careful discretion on the one hand, in order to facilitate the proper exercise of the right which is given to all persons to tile a bill on behalf of infants; and on the other, to prevent any abuse of that right, and any wanton expense to the prejudice of infants. No inquiry, however, as to the propriety of the suit, will be ordered at the instigation of the next friend himself; because the Court considers that in commencing a suit, the next friend undertakes, on his own part, that the suit ho has so commenced is for the benefit of the infant. » This I'j'e, nevertheless, applies only to cases where an application is made for such an inquiry in the cause itself; if there is another cause pending by which the infant's property is subject to the control and disposition of the Court, such an inquiry is not only permitted, but is highly proper, when fairly and bona fide made, and may have the oifect of entitling the next friend to repayment of his costs out of the infant's estate, even though the suit should turn out unfortunate, and the bill be dismissed with costs.* If an infant is made a co-plaintiff with others in a bill, and it appears that it v/ill be more for his benefit that he should be made a defendant, an order to strike his name oat as plaintiff, and to make him a defendant, may bo obtained upon motion, on notice ;* and it is to bo observed, that an infant heir-at-law, against whose estate a charge is sought to bo raised, ought to bo made a defendant, and not a plaintiff, although ho is inte- rested in the charge when raised ; and that, where an infant heir had, under such circumstances, been mado a co-plaintiff. Lord Eedesdalo ordered tho cause to stand over, with liberty for the plaintiffs to amend, by making the heir-at-law a defendant instead of plaintiff, and thereupon to prove the settlement anew against him as a defendant." The reason given for this practice is, because an infant defendant, where his inherit- ance is concerned, has, in general, a day given him after attaining twenty-one, to show cause, if ho can, against the decree, and is in some other respects privileged beyond an adult ; but an infant plaintiff has no such privilege, and is as much bound as one of full ago. ' In amicable > Nalder v. Hawkins, 2 M. & K. 243 ; Towsey v. Groves, 9 Jur N. S. 194 : 11 W. R. 252, V. C. K. ; Bee also Clayton v. Clarke, 2 Giff. 575 ; 7 Jur. N. S. 562 : 9 W. R. 718, L.JJ. ; and liaven v. Kerl, 2 Phil. 692. 3 6 Bear. 144. ' Jones V. Powell, 2 Mer. 141. * Taner v. Me, 8 Ves. 8. 466. ' Tappen v. Norman, 11 Ves. 563. • Plunket V. Joyce, 2 Sch. & Lef. 159. ' Lord Brook v. Lord Hertford, 2 P. Wins. 518 ; Gregory v. Molesworth, 3 Atk. 696 ; see also Morison v. Morison, 4 M. & C. 216. The practice of ^vine infimta a day to show cause ia now nearly obsolete ; but the present state of the law on this subject will be more suitably stated in the future chapter concerning infant defendants; we post: and see Seton, 419, 686-9, and cases there cited. 58 8UITH BY PERSONS WHO ARE UNDER DISABILITY. Nuits, howover, it in often an lulvnntago to mako an infant tlio plaintit)'; bocauHo lio may havo Hiich relief as ho iH entitled to, though not prayed for.' Although, however, an infant is, in general, bound by a decree in ii cause in which he hiinself is plainlifT, yet there is no instance of the Court binding (he inheritance of an infant by any discretionary act. From this principle it follows, that where an infant heir is plaintiff, it is not the practice to establish the will, or to declai-e it well proved ; althougli, if there be no question raised concerning its validity, the Court will in many respects act upon it.^ According to this doctrine, in Ijord Brook v. Lord Hertford, above referred to, which wjis the case of u bill*filed by an infant plaintiff for a partition against a co-tenant in common, although the Court decreed a partition, it Avould not direct any conveyance to be matle until the infant plaintiff r.ttained twenty-one ;3 and so in Taylor \. Philq^s,* where it had been referred to the Master to see whether certain proposals, which had been made as to the surrender of a cojiyhold estate by the infant plaintiff, were reasonable, and for the infant's benefit, and the Master reported that they were so, the Court, nevertheless, would not mako the order for the surrender, without inserting the Avords "without prejudice to the plaintiff, the infant, after ho shall attain tho sige of twenty-one years."* In general, however, where decrees are made in suits by infant plaintiffs, it is not usual to give the infant a day to show cause. « When a day is given to an infant plaintiff to show cause against ji decree after ho comes of age, tho proper course appears to be to havo tho cause reheard ; for which purpose he must, within tho period appointed by the decree, present a petition of rehearing.'' Though an infant is, in ordinary cases, bound by the effect of any suit or proceedings instituted on his behalf, and for his benefit, yet if there has been any mistake in tho form of such suit, or of ihr i^rocecd- ings under it, or in tho conduct of them, tho C* nrt \*ill, ujjoii appli- cation, permit such mistake to be rectified. T' u infant 'aintift' may havo a decree upon any matter arising fr. dio state of i- .-. case, < See post. A decree ap^ainst an adult aa if an infant, will not bind liim. ^tww v. Ilok, 16 Sim. lei ; Green v. Badley, 7 Bcav. 871, 278. « Hills V. mils, 2 Y. & C. C. C. 387. » The Court lias now power, under the Trustee Act, to declare the infant a trustee, and to vest the lands, Bowra v. Wright, 4 De G. & S. 8(S6. See Setou, 671, et seq., and 2'ost. * 2 Ves. S. 23. 6 Belt. Sup. to Ves. S. 259. • Gregory v. Molesworth, 3 Atk. 620 ; but see Lady Emngham v. Sir John Napier, 4 Bro. P. C. Ed. Toml. 840; Sir J. Napier v. Lady JElffingham, 8 P. Wms. 401 ; Mos. 67, for an exception to tliis rule under very peculiar circumstances. » Wyatt'8P.R.226. See ante. though he pniyed it bj of an infant l»onefit :ind antl profits, (iirocted to t liiin not, so 1 wiiH yet alloi appeared thi ,1,'i'nndfather, his bill, althc lx)on adult.' I plaintiff, by ] which tho inf will not sufte picaintiff had, I which she wa jcarc of tho inj |liora4'ont;an( I paying the co |of practice, in solicitor acting It has been lundortake tlio llhat even a jio Icharacter.* 1 Jftlroady seen,' pbstance ; » an Infant has bee puld seem thj «ingmade.» If the next [ufficient groui ' Stapilton v. Star Walker v. Tayl I ^ -Str/e V. St. Eloy, : ' ' TiUotson V. Ilarg, ' Ante. 'lb. For. Bom. •^d. Red. 26 ;" Tun ' Ante. ' Anon. 1. Ves. J. 41 Portv. Davenpm If. & J. 458. Undsey v. TyreU, INFANTS. 59 any ^et if l)ceotl- ippli- vintift' case, 1 15 Sim. Ivest the though he has not pai'tlcularly inontionod and insistoil u|^>on it, and pruyod it hy his bill ; and uct'ordin^ly wUero a bill was Hlod on bolialf of an infant, claiming, an eldest Hon of hisgrandfather'iH heir at law, the l)onofitnnd poH.sosHion of an entato, and to havo an account of the rents and profits, and for general relief; and, upon the hearing, an issue was (liroctod to try whether his father was legitimate, which the jury found him not, so that tlie plaintiff's claim, as heir at law, was defeated : ho was yet allowed to set up a claim to part of the estate, to which it appeared that he was entitled under certain deeds executed by his grandfather, l)ut which claim was in no way raisetl or insisted upon by his bill, although the Court said it might havo been otherwise if ho had lx>cn adult.' And where tho ])ersons acting on behalf of an infant plaintifT, by mistake make Hiibmisslons or offers, on behalf of the infant, which tho infant ought not to have boon called upon to make, the Court will not suffer the infant to bo prejudiced. Thus, Avhero an infant plaintiff hatl, by mistake, submitted by her bill to pay off u mortgage, which she was not liable to pay, Sir J. Jekyll, M. it, said he must take [cart) of tho infant, and not suffer her to be caught by any mistake of llier a^ont; and, therefore, tho infant was allowed to amend her bill, on [paying tho costs of tho day.^ It has boon said, however, that in matters of practice, infants are in general as much bound by tho conduct of tho solicitor acting bona fide in their behalf as adults. =» It has been before stated* that any person who may bo willing to lundcrtako tho office, may be the next friend of an infant; and it seems llhat even a person who has been outlawed in a civil action may fill that lcharactcr.5 Though it has been doubted," it is now clear, as wo havo ilroady seen,' that a next friend of an infant need not bo a person of pubstanco ;8 and though there docs not appear to be any case whore an nfant has been allowed to sue by his next friend in fo7'ma jMupeiis, it paid seem that such a course would bo permitted, on a special case ;ing mado.^ If tho next friend of an infant docs not do his duty, or if any other [ufficient ground b" made out, tho Court will, on motion, on notice, I ' Stapllton V. Stapilfon, 1 Atk. 2, 6 ; «co alHo I)c Manneville v. De ManneviUe, 10 Yes. 52, 69 ; Walker v. Taylor, 8 Jur. N. S. 081, II. of L. I "' Serle v. St. Eloy, 2 P. Wms. .380. I ' Tillotson V. Ilargrave, 3 Mad. 4'J-l ; Wall v. Bmhby, 1 Bro. C. C. 481, 487. Ante. ilb. For. Bom. 54. lid. Red. 20;' Turner v. Turner, 1 Stra. 708; 2 P. Wms. 297; 2 £q. Ca. Ab. 238, pi. 18. Ante. .O.Ert 1 to tUiB I" Anon. 1. Vc8. J. 410; Squirrel v. Squirrel, 3 Dick. 7(!5; Fellows v. Barrett, 1 Keen 119; Daven- port V. Davenport, 1 8. & S. 101 ; aud see observations of V. C. Wood in Hind v. WAitmore, 2 K. & J. 458. ■tiidsey V. 7Vr«M, 24 Beav. 124 : 3 Jur. N. S. 1014 ; 2 Dc a. & J. 7. Ante. I I 60 SUITS BY PERSONS WHO ARE UNDV.R DISABILITY. ' •!■ order him to be removed.' Thus, when the next friend will not pro- I pi.ogct.utjjj„ ceed with the cause, the Court will change him.^ And although a next I ^j^^ ^^^^^ ^ friend may njt have been actually guilty of any impropriety or mis- I j^f^^^ ^^ ^^ conduct, yc-, if ho is connected with the defendants in the cause in such I misconduct a manner as to render it improbable that the interest of the plaintiff I pg^yj^j. „ ' will be properly supported, the Court will remove such next friend, I mt , , and appoint another in his place.' I . ,, ^ ^ ^ . „ I in the event In Peyton v. Bond,* it appeared that the solicitor for the mfanls acted for the father also, and had been for ten years his confidential solicitor; and Sir Anthony Hart, Y. C, said, that although ho was warranted by high authority in saying that in family suits it was proper that the same solicitor should oe employed for all parties, yet the Court will watch with great jealousy a solicitor who takes upon himself a double responsibilitj'' ; and if it sees a chance of his miscarrying, will take cai-c, as a witness. In general security for friend propos of the one to andaninquir; where the plaintiffs are infants, that he shall not stand-in that relation I ' V^^^Y to a defendant under circumstances of very adverse interest; and, upon this ground, his Honour decided that the solicitor of the father ought not to continue in the character of solicitor of the next friend. It may be here remarked, that the next friend of an infant cannot be permitted to act as receiver in the cause ; and that where an aj)j»lication was made on behalf of infant plaintiffs, that the next friend might be at liberty to go before the Master, aiid propose himself to be the receiver, Sir Thomas Plumer, V. C, refused to accede to the motion, although it was consented to : observing, that it was the duty of the next friend to watch the accounts and crnduct of the receiver, to be a control over him ; and that the two characters were incompatible, and could not be united." If the next friend of an infant takes any proceeding in the cause which is incompatible wi f: "i^he advancement of the suit, such as moving to discharge an attachmeut issued by the solicitor in the regular pro- gress of the cause, the Court will di^-ect an inquiry whether it is fit that such next friend should continue in that capacity any longer.* But so long as the next friend continues such record, he is considered by the Court to be responsible for the conduct of the cause ; and for thisl reason, Sir Thomas Plumer, M. E., on a petition being presented to hiin| on the part of the infant plaintiff, complaining of great delay in » Bussel V. Sharp, 1 Jac. & W. 482; Lander v. Ingersoll, 4 Hare, 596. « Ward V. Ward, 8 Mer. 700. ' Peyton v. Bond, 1 Sim. 890 ; Bedwin v. Asprey, 11 Sin.. 530 ; Towsey v. Groves, 9 Jur. N. 8. IMi II W. R. 252, v. C. K ; and see Oee v. G'e, 12 W. R. 187, L.JJ. ; Sandford v. Sandford. 9 Jur.l N. S. 898 ; 11 W. R. 886, V. C. K. ; Uayd v. Davles, 10 Jur. N. S. 104VM. R. « 1 8im. 891. » 8(me V. WUhart, 2 Mad. 64. • Ward V. Ward, 8 Mer, 703. stated, as hi liberty to file In Melling \ to be substiti suit in that ca previous refer benefit of the be that the sui the next frien liable. And i that " any pei when once hei Court is inforr proposed to b interested in t production of substitute a n by the defenda When, in co: friend of an ini new next frien ' Bussell V. Sharp, ' Head v. Head, 8 ' Ld. Red. -yr, note next friend aha the tJ'.rendant's security ugualij • Dfvonport V. Dei ' 4 Mad. 261. '5Beav. 180; and ' A female next fri INFANTS. 61 prosecuting tho decree, refused to refer it to the Master to inquire into the cause of delay, and to appoint proper persons on behalf of the infant to assist in taking the accounts : saying, that if there had been misconduct, he would assist the petitioner, but that it must bo in a regular way. ' The next friend of an infant plaintiff was considered so far interested in the event of tho suit, that neither he nor his wife could be examined as a witness.^ In general, a next friend will not bo allowed to retire without giving security for the costs already incurred. ^ And where the new next friend proposed in the notice of motion to be substituted, in the room of the one to be withdrawn, was alleged to be in indigent circumstances, and an inquiry was asked for as to whether he wao a proper person to act in that capacity'', with a view to his circumstances. Sir John Leech, V. C, stated, as his reason for refusing such inquiry, tha« he would be at liberty to file a new bill.* In Melling v. Melling,^ his Honour refused to allow another next friend to be substituted for the one who had up to that time conducted the suit in that capacity, and who desired to withdraw himself, without a previous reference to the Master, to inquire whether it was for the benefit of tho infant that such substitution should take place, as it might be that the suit was improper, or had been improperly conducted ; and the next friend was not thus to escape from costs to which he might be liable. And in Harrison v. Harrison,^ Lord Langdale, M. E., observed that " any person may commence a suit as uext friend to an infant, but when once here in that character, ho will not be removed, unless the Court is informed of the circumstances and respectability of the party proposed to bo substituted in his place, j;,nd that such person is not interested in the subject c'the suit;" and accordingly, he required the production of in affidavit ,o that effect, before an order was made to substitute a new next friend : though the application was not opposed by the defendants. When, in consequence of death, incapacity,' or removal of the next friend of an infant, pending the suit, it becomes necessary to appoint a new next friend, the proper course of proceeding is, for the solicitor of ' Bttssell V. Sharp, 1 Jac. & W. 482. > Head v. Bead, 3 Atk. 511. ' Ld. Red. VI, note (y). It is gometimes made a term of tho order to Bubstitute, that the substituted next friend sliall give security, to be approved of by tho Judse If the parties differ, to answer the (J'.fendant's costs to that time, in case any shall be awarded : seo Seton, 1S6S, No. 6. The security usualiy given is a recognizance, * Dfvonport v. Devonpori, 1 8. & S. 101. « 4 Mad. 261. ' 5 Beav. 130 ; and see Lander v. Ingersoll, 4 Hare, 696. ' A female next friend will, on marriage, become incapacitated to act fu'lUer a« sucb. 62 SUITS BY PERSONS WHO ARE UNDER DISABILITY. the plaintiff to apply to tho Court, or Judge at chamber's, for an order appointing a new next friend in his stead,' whose fitness, as we have seen, must be proved ;3 and after such appointment, the name of the new next friend should be made use of in all subsequent proceedings where the former one, if aiive, would have been named. Before the defendant has appeared, the name of the new next triend may be introduced into tho record, under an order as of course to amend ; and after appeaarnco the same may be done, where the new next friend is appointed in the place of a deceased next friend, if the application for the order is made by the solicitor who acted in the suit for the deceased next friend. In other cases the order may bo obtained on the plaintiff's petition, as of course, if the defendant's solicitors subscribe their consent thereto; if not, by motion upon notice at chambers. If the plaintiffs solicitor omits to take this step within a reasonable time, the defendant may apply to the Court by motion, upon notice, for an order directing tho approval of a new next friend, and for the insertion of his name as such in the bill.^ In Large v. De Ferre,* the new next friend was appointed by the Chief Clerk's certificate, without further order. The order appointing the next friend must, in every case, be served on the solicitors of the defendants in the cause, and bo left for entry in the cause books kept by the Clerks of Eecords and Writs. « Before appointing a new next friend,- the Court or Judge requires to be satisfied of his willingness to act; and an authorit}'- signed by such next friend should be produced and filed. On any application on behalf of an infant plaintift', a next friend must bo named for the purpose of tho application." Where a bill has been filed in the name of an infant, his coming of ago is no abatement of tho suit;' but ho may elect whether ho will proceed with it or not. If he goes on with the cause, all further pro ceodings may be can-ied on in his own name, and tho bill need not bo amended or altered ;» he will also bo liable to all tho costs of tho suit, in tho same manner as he would have been had ho been of ago > Westby v. Westby, 2 C. P. Coop. t. Colt. 211. " Harrison v. Harrison, 6 Bcav. 130. » Tho defendant may obtain the order oh ex parte motion, but then ho must glvO four days' notice to tho plaintiff of the order, before tho inquiry can be proceeded witli ; see Lancasf.er v. Tim it- ton, Amb. 3!t8 ; Ltidolph v. Saxby, ib. : 12 Sim. 351 ; Countesx of Shelbiirne v. Ld. Inchiquin, Arab. 898, n. ; 12 Sim. 352; liracey v. Sandi/ora, d Mad. 4(i8 ; Olover v. Webber, 18 Sim. 351. * Braithwaito'a Pr. 558. » Braithwaito'B Pr. B58. • Oox V. Wrlgltt, 9 Jur. N. S. OCl : 11 W. R. 870. V. C. K. ; and see Guy v. Guy, 2 Beav. 400; Fur- tado v. Iihirtado. a, Ji\r.'i2n,a» explained by Cox v. Wright, vbi. nip. A notice of motion should be Riven by tlie infant by his next friend, and not merely by the next friend. Pidduck \ Bmltbee, 2 Sim. N. 8. 223. f Wyatt'8 P. R. 225. « Ibid. : 1 Fowl Ex. Prac. 421. The title of tho suit, in such csi»c, however, is corrected, to roail thenceforth thuB : " A.B., late au infant, l)y C. D., his next friend, but now of full Bffe,plaintitf. " when the bi he may moA from taking pay the cpst filed. Thor dismiss a bil the Court re missed, on t] costs, and th Iftheinfa made liable t the minority the cause, an the bill to be the plaintiff, never havinir attaining twc for them, the order for pay would, of cou defendant: tl defendant's c is made on be costs must be Where an ii tion relates hi has been done An infant C( suit, if he take but to have hi recpiires it, th( oeedings as a After an inf to take any pri though theyar ' Coop. Eq. Pi. 29. ' Aiwn. 4 Mad. 46 ' Turner v. Turne G. M. & O. 25 : ' BxKkley v. Pucke ' Ihmn v. Dunn, 7 ' Acres v. LittU, 1 1 ' Skknell V. Bickn INFANTS. 63 when the bill was originally filed. ' If he chooses to abandon the suit, he may move to dismiss it on payment of costs by himself, or refrain from taking any step in it ; but he cannot compel the next friend to pay the CQsts, unless it bo established that the bill was improperly filed. Therefore, where an infant, on attaining twenty-one, moved to dismiss a bill file 1 on his behalf, with costs to bo paid by the next friend, the Court refuHcd to make an order; but directed the bill to bo dis- missed, on the late infant plaintiff giving an undertaking to pay the costs, and the costs of the next friend.^ If the infant refrains from taking any step in the suit, ho cannot be made liable to costs ; thus where the next friend of an infant died during the minority of the plaintiff, who, after he came of age, took no step in the cause, and the defendant brought the cause on again, and procured the bill to bo dismissed, such dismissal was without costs ; because the plaintiff, not having been liable to costs during his infancy, and never having made himself liable by taking any step in the cause after attaining twenty-one, and there being no next friend to bo responsible for them, there was no person against whom the Court could make an order for payment of costs.' In that case, the next friend, if living, would, of course, have been liable to the payment of tho costs to the defendant : the general rule being, that the next friend shall pay the defendant's costs of dismissing tho plaintiff's bill ; and so, if a motion is made on behalf of an infant plaintiff which is refused with costs, such costs must bo paid by the next friend.* Where an infant, on coming of age, repudiates the suit, that repudia- tion relates back to the commencement of the suit, over-riding all that has been done in it.^ An infant co-plaintiff, on coming of age, and desiring to repudiate tho suit, if he takes any step, must move, on notice, not to dismiss the bill, but to have his name 8tiu.?k out as co-plaintiff;" and if the next friend requires it, the late infant's name must be introduced in the future pro- ceedings as a co-defendant.' After an infant sole plaintiff comes of ago, his next friend ought not to take any proceedings in the cause in the name of the plaintiff, even tiiough they are consequential on former proceedings if the suit is to be ' Coop. Eq. Pi. 89. ' Awn. 4 Mad. 461. ' Turner v. Turner, 1 Stra. 708: 2 P. Wms. 2ft7; Ld. Red. 26, n. (/); and see Dunn v. Dimn, 7 De G. M. & 0. 36 : 1 Jur. N. S. 128 ; 3 Drew. 17 : 18 Jur. 1068. ' Bmkley v. Puckeridge, 1 Dick. 395. ' Dunn V. Ihinn, 7 De Q. M. «Si G. 29 : 1 Jur. N. 8. 123, per L. J. Turner. ' Acres v. lAtOe, 7 Sim. 138; Guy v. Ouy, 3 Beav. 460; Cook v. Fryer, 4 Bcnv. 13. ' Bickndl V. BkkneU, 32 Bear. 381 : 9 Jur. N. S. 683. i$ 64 SUITS BY PERSONS WHO ARE UNDER DISABILITY. prosecuted;' but an infant oo-plaihtiff, on coming of age, will not be allowed to appear by another solicitor or counsel, unless he has obtained an order to change solicitors.'. The rule above referred to, under which a next friend is held liable to the costs of dismissing a bill, or of an unsuccessful motion, is appli- cable only as between the next friend and the defendant in the cause ; for the Court is extremely anxious to encourage, to every possible extent, those who will stand forward in the character of next friend on behalf of infants, ^ and will, wherever it can be done, allow the next friend the costs of any proceeding instituted by him for the infant's benefit, out of the infant's estate, provided ho appears to have acted bona fide for the benefit of the infant. Therefore, where a suit was instituted on behalf of an infant, in which there was a decree made, under which the money recovered was brought into Court, and put out for the benefit of the infant plaintiif, and the defendant was ordered to pay the costs, but ran away : upon a motion by the solicitor of the plaintiff", (in which the father, who was the next friend, and very poor, joined,) that his costs might be paid out of the fund in Court, Lord King granted the motion, but with some reluctance." And in another case, where a supplemental bill had been filed on behalf of an infant, for which there were apparent grounds, but which was eventually dismissed as against one of the defendants with costs, which were paid by tho receiver in the original cause, upon a petition by the next friend to be allowed such costs out of the infant's estate in the original cause. Lord Hardwicke made tho order : observing, that the next friend and tho receiver had done nothing but what any man would do in his own case ; and that though it had turned out unfortunately, the Court would not say that they ought to bear the costs ; as if they were, nobody would undertake the management of an estate for an infant.* An inquiry may be directed whether it is for the benefit of the infant to proceed with a suit.o It seems, however, that such an inquiry wnll not be directed, on the application of tho next friend, in the suit re?;- pecting which the reference is sought,' but that the next friend must carry it on at his own risk, which appears to be a proper restraint to prevent suits of this description from being rashly undertaken ; for as, on the one hand, the next friend, in case a fund should bo recovered by Brown V. Weatherhead, 4 Hare, 132; Brown v. Brown, 11 Beav. iSifii/t V. Orazebrook, 18 Sim. 186. Whittaker v. Marlar, 1 Cox, 286. Staines t. Maddox, Mob. 819. Taner v. Me, 3 Vcs. S. 460 ; Cross \ . Cross. 8 Bcav i^ti. Taner v. Ivie, 2 Ve«. 8. 469. Jones T. PowtU, 2 Mer. 141 ; ante. 5C9. means of tl fund, ' nn i\ put to by 1 <-os(.s, ill c'ji cautious in \vithout hai 1 1 is to i oiicoiirugo l>ehalf of ill all co,stH aiK which it \vi deprive thei acted from i the i)riiicipl friend. I. c, care of, will cooding.3 J diligence lui,' tacts of the c upon fiict,s M motion made tliu next fric Thus, whore poi-ly obtaiiK of tho iiifan c'iu;htcon yea liavo known per.sons. Lore friend sliould There ajipc llio part of ai tlio Huit by li iidult;6 and, ,!,a'iioraI, secui l^utitHOoniH tl to the next i l)o,sHcsHion.7 ' S/(tines v. Jfarlt '^ Whittaker v. 31 '' n/iittaktr v. J/i ^' I'earce v. Peum '^ h'oddam v. J/i/i " Staines v. Mada ' MontaKU on Lici •1B7, 105? ;/>((,, INFANTS. 65 means of the »iiit, has, through his soJie^^or's lien for his costs upon that fund,' an adequate protection from losing the charge he may have been put to by means of the suit, so the risk which he runs of losing those costs, in case the suit should be unsuccessful, tends to make persons cautious in undertaking proceedings of this nature on behalf of infants, without having very good rejison for anticipating a successful result. It is to JL>e observed, however, that although the Court will so far encourage persons acting fairly or bona Jhlc to institute proceedings on behalf of infants, or to protect them, when it is possible so to do, from all costs and expenses Avhich the}' may incur by such step, a protection which it will not sutler any degree of mistake or misapprehension to deprive them of := yet, if it should turn out that the next friend has acted from improper motives, or merely to answer the purposes of spleen, the principle which guides the Court in encouraging an lumest next friend, /. c, the anxiety to have the atl'airs of infants ])roperly taken care of, will involve a dishonest one in the expenses of In's own pro- ceeding. » And so, if it should appear that, in the case of an infant, duo diligence has not been exerted to acrpiire a proper knowledge <»f the facts of the ca.so, and the bill should be dismissed, or an order discharged, upon facts which, though not known when the bill was tiled, or the motion made, might liave been known if proper inquiry had Itcen made, thu next friend will not be allowed the costs out of the infant's estate.* Thus, where it appeared that a writ of Ne exeat Regno bad bt'ei\ impro- perly obtained by the next friend, on motion supported by the atlidavit of the infant plaintitf, by which the infant, Avho was of the age of eighteen years, swore positively to fticts which it appeared be could not litive known himself, but which he could only have been told b}' other persons, Lord Eosslyn discharged the order, and directed that the next friend should ])ay the costs of obtaining it.* There aj^pears to be no doubt, that a solicitor conducting a cause on the part of an infant has the same lien upon the money recovered in the suit by his moans, and at his expense, as he has in the case of an adult ;« and, therefore, if the suit is successful, the next friend is, in ijeneral, secure Iron; being put to any charges on the infant's behalf. Btitit seems that a solicitor who obtains possession of papers, as solicitiu" to the nexL friend, has not an}' lien upon theju by vijtue of such possession.' ' Hlaints v. MaUdox, Mo:*, ar.). '' WIdUaker v. Matiar, 1 Cox, '■:m\ Aiukrtoii v. l'u(t<, 5 Da U. &, S. 'Mi. . " Whtttakir v. Marlar, 1 Cox, S8li ; and sec VroDH v. CroKs, 8 lJ(!tiv. 455. ' Pearce v. Pmrce, 9 Vus. 518. '" Roddam v. Ild/uriiiafon, 5 Vc;<. fll, 05. " Staines v. Maddox, Mop. 319. ' MontaRU <>i> Lion. 5:} ; im.i soo Turner : L<(t.s\ SO 13oav. liV, ; 7 Dc «. M. & U. 9i:i : I Jur. N. S. ■1«7, 105J ; JJunii v. Dunn, ^ Do U. M. & u. 25, •-;'J : 1 Jiir. N. ». Hi ; 3 L>rew, 17 : 18 Jur. 10(k>^'.. S M 1 . I 66 SUITS BY PERSONS WHO ARE UNDER DISABILITY. ' It is said, tliut where u legacy is given to an iuiiint, the testator mulces it necessary to come into this Court for directions how to lay it out ; and that, therefore, such an application ought to bo considered as an incumbrance on the estate, and the costs must be paid out of the assets.' This rule was acted upon by Lord Alvanley, M. R., in a case where the executors Avere plaintifts, in which case his Lordship said that, if the testator wishes to prevent the costs of such a suit from coming out of his estate, he ought to give tJie legacy to a trustee foi- the infant ; he, however, said that, for the future, he fhould not givo the costs in su'jli a case : for since the Legacy Act, 36 Geo. IlL c. 52, s. 32, the executor has nothing to do but, under that Act, to pay the legacy into Court, and then he has done ; and the infont, when he comes of age, may petition for it.^ Before that Aci, an executor could no( safely pay an infant's legacy without a decree. With respect to the right of the next friend of an infant to receive anything beyond his taxed costs out of a general fund, in order to re- imburse him for any extra expense he may have been put to, some difference of opinion appears to have existed between Lord Eldon and Sir William Grant, M. E. In Osborne v. Benne,^ where a bill had been filed by a legatee on behalf of himself, and as next friend of an infant legatee, in which the usual decree was made, and the costs ordered to be taxed and paid out of the estate, an ajiplication was made to the Master of the Eolls, on behalf of the next friend, that he might in some way have costs beyond his taxed costs : either by a direction to have them taxed as between solicitor and client, or by a reference to the Master to sec what extra costs ho had been put to ; but Sir William Grant refused to make the order : saying, that if a next friend is to a certainty to have all that exceeds the taxed costs, it would lead him to be very careless. In Feams v. Young,* where an application was after- wards made to Lord Eldon for the costs of trustees, as between solicitor and client, his Lordship refused to make such an order, on the ground that where the costs of a trustee are directed to be taxed, that means as between party and par^^y, not in the larger way ; although, where a trustee, in the fair execution of his trust, has expended money by reasonably and properly taking opinions, and procuring directions that are necessary for the due execution of his trust, he is entitled not only to his costs, but also to his chargeij and expenses, under the head of just allowances. Kis lordship, however, added, " With regard to an infant, this requires great consideration; for as the infant himself > Anon^ Mo8. 5. a Wwpham v. Winafield, 4 Vcs. C30. 3 7 Ves. 424. * 10 VeB. 184. IDIOTS, LtTNATICS, ANT) PERSONS OF WEAK MIND. 67 cannot incur charges and expenses, if they cannot be claimed under just allowances, and the next friend is to be at the whole expense of the infant beyond hi« costs, persons will deliberate before they accept that office. ' Sectfon V. — Idiots, Lunatics, and Persons of Weak Mind. ALTHOUiiii, as it has been observed, ^ in certain cases suits on behalf of idiots or lunatics may be instituted in the form of informations by the Attorney-General, yet the proper course of proceedin<^ to assert their rights in Equity is by bill.^ .Suits on behalf of a luiuitic are usually instituted in the name of the lunatic ; but as he is a per.son incapable in law of taking any step on his own account, he sues by the committee of his estate, if any, or if none, by his next friend, who is responsible for the conduct of the suit. The lunatic must be named a co-plaintiff, as well in a bill as in an in- formation, on his behalf; where, however, the object of the suit is to avoid some transaction entered into by the lunatic on the ground of his incapacity at the time, it has been held, that a lunatic ought not to be a co-plaintiff, because it is a principle of Law that no man can bo heard to stultify himself. This distinction was recognized and axloi^ted in some early cases,* but it would scarcely be considered important in modern times ; and where a bill was brought by a lunatic and his com- mittee, to avoid an act of the lunatic's on the ground of insanity, a demurrer, on the ground that a lunatic could not be allowed to stultify himself, vfSiM disallowed :'' the Lord Chancellor observing, that the rule that a lunatic should not be admitted to excuse himself on pretence of lunacy, was to be understood of acts done by the lunatic to the preju- dice of others, but not of acts done by him to the prejudice of himself. It was said by the Lord Keeper Bridgman, in the case of Attorney- General V. Wbolrich, above referred to, that the reason why a lunatic is required to be a party to a suit instituted on his behalf is, because he may recover his understanding, and then he is to have his estate in his own disposition ; but that it is otherwise of an idiot : from which it seems that an idiot is not a necessary party to a suit instituted on his behalf. But neither an idiot nor a lunatic can institute a suit, nor can one be instituted on his behalf, without the committee, if any, of his ' For more as to costs of intants' suits, sec Bcamcs on Costs, 69— "1, 8.3— ST. 5 Ante. ^ Or, where applicable, by administration order. * Attorney- Generaly. Woolrich, 1 Ca. inCha. 153; Attorney-General \.Parkhurst,ib.\\.2. » Ridler v. Bidler, 1 Eq. Cas. Ab. 879, pi. 5 ; and sec Tothill, 130. * ! V %1 r 68 SUITS BY PSR80N8 WHO ARE UNDER DISABILITY. estate being u party, cither as u co-plaintiff or as a defendant;* and therefore, where the committee of a hinatic filed a bill on behalf of the lunatic, without making himself, a co-plaintiff, Sir Thomas Plumer, M. R., directed the case to stand over, with liberty to amend, by making the committee a co-plaintiff i^ and in the Bishop of London v. Nicholls,^ a bill for tithes by the bishop and sequestrator, during the incapacity of the incumbent, was dismissed, because neither the incum- bent nor his committee was a party. If a person exhibiting a bill appeal* upon the fa(!e of it to be either an idiot or a lunatic, and therefore incai)able of instituting a suit alone, and no next friend or committee is named in the bill, the defendant may demur;* but if the incapacity does not appear on the face of the bill, the defendant must take advantage of it by plea.s The objection arising from lunacy extends to the whole bill, and advantage may be taken of it, as well in the case of a bill for discovery merely, as in the case of a bill for relief; for the defendant in a bill of discovery, being entitled to costs, after a full answer, as a matter of course, would be materially injured by being compelled to answer such a bill by a person whose property is not in his own disposal, and who is therefore incap- able of paying the costs. « If the plaintiff becomes a lunatic after the institution of a suit, it was formerly requisite that a supplemental bill should bo filed, in the joint names of the lunatic and of the committee of his estate, which answered the same purpose as a bill of revivor in procuring the benefit of former proceedings;' and if the committee of a lunatic's or idiot's estate died, after a suit had been instituted by him for the benefit of the idiot or lunatic, and a new committee was appointed, the proper way of con- timiing the suit was by a supplemental bill filed by the idiot or lunatic and the new committee ; but under the present practice of the Court, the suit would be continued, in either of these cases, by a supplemental order or order of revivor. 8 After a decree, and pending proceedings under an enquiry, the Court will stay the cause till the issue of a com- mission of lunacy concerning the plaintiff is known. » A committee, previously to instituting a suit on behalf of an idiot or lunatic, should obtain the sanction of the Court. In order to obtain ' Fuller V. Lance, 1 Ca. In Cha. 19. ^ » Wooifryea v. Wooyryes, RoUs, Feb. 17, 1824, MS8. a Bamb. 141. * Ld. Red. 153. * Ld. Red. 153, 2r?9. In this Province, by answer ; as pleas are abolislied by Con. G. O. No. 6. * Ld. Red. 163. "> See Brown v. Clerk, 3 Wooddeson, Lect. 378, notis, where the form of such a bill is gtatud. » Sec Seton, 116«, 1170 ; Dangary. Steward, 9 W. R. 26fi, V. C. K.; Thewlis v. Farrar, ciltd. Seton, 1166. In this province by order of revivor, under Con. G. A. No. 337. » HarUey v. Oilbert, 13 Sim. 596. such sa should It mj matter pleted 1 where si Hnd ma^ very mi it is imj: to do jus the luna a contrai which he fact of hi defendan and form to try it. Person though n( next fricE seems, thi time of fi: bo taken ( and the pi not be a s a motion file, on th ^y ago an her incapf ajipearing at the tim eeedings, I'ights and commence ' iVice V. Bi * Shelf, on Li " Neill V. ifo * Ld. Red. 80 ana othei diction 01 sition, sei Coop. 1. 1 125; Re. 709, No. „ same pos * Wartnaby^ IDIOTS, LUNATICS, AND PERSONS OF WEAK MIND. 09 HUch sanction, a statement of facts Hhowing llio propriety of the suit should be laid before a Judge in Chambers. It may bo observed here, that the Court of Chancery will not, as a matter of course, interfere to set aside contracts entered into and com- pleted by a lunatic, without fraud in the parties dealing with him, even where such contracts are overreached by the inquisition taken in lunacy, and may be void at law;' but the interference of the Court will depend very much upon the circumstances of each particidar case ; and where it is impossible to exercise the jurisdiction in favour of the lunatic so as to do justice to the other party, the Court will refuse relief, and leave the lunatic to his remedy, if any, atLaw." It seems also, that although a contract is entered into by a lunatic, subsequent to the date from which ho is found by the inquisition to have become lunatic, yet if the fact of his being a lunatic at the time of the contract is denied by the defendant, the establishment of that fact is indispensably necessary ; and formerly when the Court had any doubt upon it, it directed an issue to try it. 3 ■ • *' ' Persons of full age, but who are incapable of acting for themselvon, though neither idiots or lunatics, have been permitted to sue by their next friend, without the intervention of the Attorney-General;* and it seems, that if a bill has been filed in the name of a plaintift' who, at the time of filing it, is in a state of mental incapacity, it may, on motion, bo taken oft' the file.* If, however, a suit has been properly instituted, and the plaintiff subsequently becomes imbecile, that circumstance will not be a sufficient ground for taking the bill oft' the file. Thus, where a motion was made on the part of the defendant to take a bill oft" the file, on the ground of the plaintiff having been for some time reduced by age and infirmity to a state of mental imbecility, which rendered her incapable of instituting a suit: the circumstances of the case not appearing, in the opinion of Lord Eldon, to warrant the inference that, at the time of filing the bill, she was incompetent to authorize the pro- ceedings, and the bill appearing to be a proper one with a view to her rights and interests, his Lordship thought,' that as the suit was rightly commenced and the further prosecution of it proper, it would be a strong « ' Price V. Berrington, 8 M'N. & G. 486, 400. •^ Shelf, on Lun. 551 ; NieU v. MorUy, 9 Ves. 478, 481, 482. 3 NeiU V. Morley, 9 Vcs. 478. * Ld. Red. 30, cites Elizabeth Limy, a person deaf and dumb, by her next friend, against Witherley and others, in Ch. : Decree, 1 Dec. 1700 ; ditto on Supplem. Bill, 4 Mar. 1779. As to the juris- diction of the Court of Chancery witli regard to the property of a iunatic not so found by inqui- sitJon, see Nelson v. Buncombe, 9 Becv. 211, ai6, ai9 ; 10 Jur. 899 ; Edwards v. Abrey, 2 C. P. Coop. t. Cott. 177, and cases there collected ; He Burke, 2 De O. F. & J. 124 ; Be Tayler, ib. 125 ; Be APFarlane, 2 J. & H. 673 : 8 Jur. N. 8. 20« ; Light v. Light, 26 Beav. 218 ; and see Seton, 709, No. 11 and ante, p. 9. The next fi:iend of a person of weak mind is, in every respect, in the same position as the next friend of an infant. * Wartnaby v. Wartnaby, Jnc. 377; Blake v. Smith, Younge, 596. to SUITS BY PERSONS WHO ARE UNDER DISABILITYi step oven to ntay tho proceedings, merely ])ecanso her state of mind was Huch that she could not revoke the uutliority iirevioiisly given ; but that to take the Ijill ott'the tile, and make the answer waste i)apor, coukl not be done. ' The committee of a lunatic, and the next friend ofa person of unsound mind, before he consents to any departure from tho ordinary mode of taking evidence, or of any other procedure in the suit, sliould first obtain the sanction of the Court or Judge. Section VI. — Married Wonwi. By marriage, tlie husband and wife become as one person in law; and upon this union depends all tho legal and equitable rights and dis- abilities which either of them acquires or incurs by the intermarriage. One of the consequences of this unity of existence and interest between the husband and wife is, that at Common Law a married woman cannot, except in the cases mentioned below, during the continuance of her coverture, institute a suit alone ; therefore, whenever it is necessary to apply to a judicial tribunal respecting her rights, the proiceding must be commenced and carried on in their joint names. Tho exceptions to this rule are : when the husband can be considered civiUter mortuvs, and when the wife is judicially separated from her husband, or has obtained a protection order ;3 in which cases, the wife is looked upon as restored to her rights and capacity as a feme sole, and may sue alone. With respect to what is called a civil death in law. Lord Coke says, that a deportation for ever into a foreign land, like to a ]>rofession, is a civil death, and that in such cases the wife ma}' bring an action, or may be impleaded during the natural life of her husband; and so, if by an Act of Parliament the husband be attained of treason or felony, and is banished for ever, this is a civil death, and the wife may sue as a feme sole; but if the husband have judgment to be exiled but for a time, which some call a relegation, this is no civil death. =* At law, also, every person who is attained by ordinary process of treason or felony, is dis- abled to bring an action, for he is extra legem positns, and is accounted in law civiliter moiimis;* and where the husband is an alien, and has left > Wartnaby v. WartncU>y, Jac. 377. •■< Be Rainsdon's Trusts, \ Drew. 446 ; 5 Jur. N. S. 65 ; Re Xlngsley, 26 Beav. 84 ; 4 Jur. N. S. 1010 ; Cook V. Fuller, 26 Beav. 91» ; Rudge v. Weedon, 4 De G. & J. 216; 5 Jur. N. S. 723 ; Bathe v. Bank of England, 4 K. & .1. 564 ; 4 Jnr. N. 8. 505 ; Re mutingham's Tmsts, 10 Jur. N. S. 818 ; 12 W. R. 775, V. C. W. See Pro. Sta. Con. Sta. U. O. C. 73. , 3 Co. Liu. ia3 a. « 2 B. & P. 2.31 ; 4 Esp. 27 ; Bae, Ab. tit. Bar, and Feme (M) ; 9 East. 472. this king(l( such absen husband af In those it has been life by Act as if her hi that site sh of felony, c the wife bei man of Lor sole.' In Equit} quires the h wife, prevai hereafter j)0 actions lor j and actions i distinction d and other ch since the huf onlyaqualif during her without mak accrues to th and for all period, the h name; becau liusband may solute : an in liis own nam( both of them recover a jud^ his personal r the wife. 8 T ' 2E8p. 554, 687; T. R. 679, 682 = 11 East, 301 ; Z>1 ' See Ld. Red. 28 * Countess of Par ' Neivsome v. Box " 1 Bright, H. & ' ibid 62 ; and 8e( ' Oglander v. Ba MARRIED WOMEN. 11 this kingdom, or has novor been in this couiitiy, the wife may, during such absence, sue alone,' although in ordinary cases, the absence of the husband aifords no gi'ound for the wife's proceedings separately. ' In those respects, Courts of Equity follow the rules of law.^* Thus, it has been held in Equity, that where a husband has been banished for life by Act of Parliament, the wife may in all things act as a feyne sole, as if her husband were dead, and that the necessity of the ca.so requires that she should have such power;* and where a husband was attainted of felony, and pardoned on condition of transportation, and afterwards the wife became entitled to some personal estate as orphan to a free- man of London, such personal estate was decreed to the wife as a feme sole.' In Equit}', however, as well as at Law, the general rule, which re- quires the husband to be joined in a suit respecting the rights of his wife, prevails, except under particular circumstances, which Avill be hereafter pointed out ; but at Law there exists a distinction between actions for property which has accrued to the wife before marriage, and actions for pi'operty which have come to her afterwards ; which distinction does not prevail in Equity ; for with respect to such debts and other choses in action as belong to the wife and continue unaltered, since the husband cannot disagree to her interest in them, and as ho has only a qualified right to possess them, by reducing them into possession (luring her life, he is unable to maintain an action for such property without making his wife a party ;« but for all personal estate which accrues to the wife, or to the liusband and wife jointly, during marriage, and for all covenants made or entered into with them during that period, the husband may, at Law, commence proceedings in his own name ; because the right of action having accrued after marriage, the husband may disagree as to his wife's interest, and make his own ab- solute : an intention to do which he manifests in bringing an action in his own name, when it might have been commenced in the name of both of them;'' and in such case it has been held, that if the husband recover a judgment for a debt duo to the Avife, and die before execution, his personal representative will be entitled to the benefit of it, and not the wife. ^ The distinction above pointed out does not, however, as has 1 2 Esp. 554, 587 ; 1 B. & P. 35T ; 2 B. & P. SSC ; 1 Bob. & P. N. R. 80 ; 11 East, m\ ; 3 Camp. 193 : 5 T. R.679, 682; 8 T. R. fi45. a 11 East, 301 ; Du Wahl v. Braime. 1 II. & N. 178 : 4 W. R. (MO. » See L(l. Red. 28; Story, Eq. PI. a. 61 ; Coop, Eq. PI. 30; Calvert on Parties, 414. * Countessof Portland \. ProdgerSy'ii\em.\M: \"R({.Csi. Ah.\'i\,V\.\. '• Neivsome v. B&wyer, 3 P. Wms. 37. * 1 Bright, H. & W. 6;^, and the cases there cited, notis. ' ma 62 ; and see Add. Cont. 761. ' Oglander v. Banton, 1 N'ern. 396; (kirforth v. Bradley, 2 Ves*. S. 675, U7T. - £i 72 flUITH BY PERSONS WHO ARE UNDER niSABILITV. boon Hinted, oxint in Courtn of Equity, where it HComs noecHHUiy that In iill cuKOH in which the Imsband HOoks to recover tlio property of the wife, ho Hhoiild injiko hor a purty co-plaintitf with hininolf, whether tlie ri^ht to the property accrued befcire or alter marriage. Thus, in Clearkc V. J^ord Angier,^ where a legac}' was given to u woman whilst she wan covert, and the husband, without lier, exhibited a bill for it, to which the defendant demurred, on the ground that the wife ought to liavo been joitieil in the suit, the demurrer w^as ullowed. The ground upon which Courts of Equity require the wife to bo joined as co-plaintiff with her husband in suits relating to her own propei'ty is, tlie parental care wliicli such Courts exercise over those individuals who are not in a situation to take care of their own rights ; and as it is presumed that a father would not marry his daughter witliout insist- ing upon some settlement upon lior, so, those Courts, standing in loco parentis, will not suffer the husband to take a wife's portion, until lie luis agreed to make a reasomible provision for her," or until they liavo given the wife an opportunity of making her election, whether tlic property shall go to her husband, or shall bo made the subject of a settlement upon lu^r and her children. This right of a wife is termed hor equity to a settlement; and it at- taches whenever pi-oceodings are pending in the Court of Chancery, with reference to her personal property,^ or her equitable interest in real estate," except as against tho particular assignee of her life es- tate.^ She may herself institute proceedings for the purpose of raising her equit}^;" but it cannot be enforced until the Court is about to make a decree or order directing payment, transfei- or application of the property.'' The question Avhethcr the right attaches to the wife's life interest has been much discussed ; but it is now determined that, subject to the above-mentioned exception, it does so attach. ^ ' Freeman, 160; S. C. nom (Jlerke v. Lord Anglesey, Ncle. 78; see also Blount v. Begtland, 5 Ves. 515 ; Anon. 1 Atk. 491 ; Meales v. Meales, 5 Vos. 517, n. ; Can- v. Taylor, 10 Ves. 571, 579. '■' Per Lord Hardwicke, in Jewson v. Moulson, 2 Atk. 419. " Even where the fund is not in court, gee Henry v. Ogle, 1 0. P. Coop. t. Cott. 447. * Sturgisy. Champneys, 6M. & C. 97; Hanson v. Keating, 4 Hare, 1; Wm'tham v. Pembertoii, 1 Do G. & S. 044; but see Gleaves v. Payne, 1 De G. J. & 8. 87. In Smith v. Matthews, 3 De G, F. & J. 139, it was lield tliat tlie possible estate by courtesy of tho husband could uut be inter- fered with. * Tidd V. Lister, 3 De G. M. & G. 857, 861, 869 : 18 Jur. 543; and see Durham v. Crackles, 8 Jur. N. S. 1174, V. C. W. and post. * Lady Elibank v. Montolicu, 6 Ves. 737 ; and cases collected in Bosvil v. Brander, 1 P. Wras. 459 ; JJuncombe v. Greenacre, 2 D. G. F. & J. 609 : 7 Jur. N. S. 175 ; Foatgate v. Barnes, 9 Jur. N. S. 456 : 11 W. K. 356, V. C. 8. ' Jewson V. Moulson, 2 Atk. 419 ; De La Oarde v. Lempriere, 6 Beav. a44 ; Osborne v. Morgan, 'i Hare, 432 ; Wallace v. AulciJo, 1 Dr. & Sm. 216 : 9 Jur. N. 8. 687 ; 2 N. K. 567, L. J. J. * Sturgis v. Champneys, 6 M. & C. 97 ; Wilkinson v. Charlesworth, 10 Beav. 824 ; see, however, Shillito V. Collett, 7 Jur. N. 8. 385, where V. C. Kinderslcy held, that an annuity given to a married woman by will, might be paid to her husband without her consent in court. The righ .self ond he of a suit ir such of hoi ing the join in 11 legal ri but ]»or riir of Ei|uity 1 to II feme coi until he ha.s tiron, unless paid over tc lijw been roc case of Tanj Keejier Cov( followed in j own right, a force if ^^ husband in r contract mat for it, tlio oq whore, in cor covenanted t heirs, or exe( further sum ( portion, it w( oftho£500, r husband from In order to to a settlemei practice of th willing to att at tho time of ill which case, Court, and is ( is unable or ui ' Jewson V. Moult »Tothill,114; am ' Jewson V. MmUs 11; Brown V. dlecome v. Ma * Brooke v. Hickes ° Brett V. Forcer, V. Atcheson, 11 • On this subject s HARRIED WOMEN. 73 mi ■' Tliu I'i^ht of a muiTiod woman to have a Hottlomenl nuulo upon lioi*- «olf' and hor cliildron, out of hor j)orHonal property which in tho Mubjcct of a suit in Equity, in totally distinct from hor ri/i^ht by burvivorrthip to Huch of hor cJioscs in action as have not boon rodueod into poHsossion dur- inj^ tho joint lives of horsolf and husband. Tho right by Hurviv^rsliip is a legal ri/L^ht, applying equally to hoi legal and equitable interest; but hor right to a Hottlomont dopendH upon the peculiar rule of CourlM of Kiiuity before alluded to, which, Htanding in toco pamitis with rcffiivd to a /cmc cotrr^ will not Huffer tho husband to take tho wife's portion until ho has agreed to make a reasonable provision for hor and her chil- dren, unless they aro satisfied that it is with her free consent that it is paid over to him." This rule of Equity is not of modern adoption, but has been recognized and acted upon from a very early perioil. In tho case of Tanfield v. Davenport,'' which cccurrcd in tho 14 Chas. I., Lord Keeper Coventry takes notice of it; and it has boon acknowledged and followed in all subsequent cases, whore a wife has had a demand in lier own right, and application has boon made to a Court of Equity to en- force it.' Where, however, tho demand is not one which accrues to tho husband in right of his wife, although he may be entitled to it under a contract made upon his marriage, yet if he alone has tho right to sue for it, tho equity of tho wife to a sottloment will not attach.'' Thus, where, in contemplation of marriage, the father of tho intended wife covenanted to pay £1000 to the husband on marriage, and also that his heirs, or executors, should, within six months after his death, pay the further sum of £500 to tho husband as tho remainder of the Avife's portion, it was hold, that tho wife was not entitled to a settlement out of tho £500, as it never was hor money, and was only a debt due to tho husband from the father.* In order to ascertain whether the married woman waives her equity to a settlement, and consents to her husband taking the property, the practice of the English Court is, when she is resident in London, or is willing to attend, for the Judge to examine her apart from her husband, at the time of pronouncing the decree or order disposing of the fund : «> iu which case, a note of tho examination is made by the Registrar in Court, and is embodied in the decree or order. If the married woman is unable or unwilling to attend tho Court, owing to her residence in ' Jewson V. Moulaon, 3 Atk. 419. ^ Tothill, 114 ; and see 1 Spcnce, Eq. Jur. 581, 590. ' Jewstm V. Mmdsmi, 2 Atk. 419 ; Milner v. Cdmer, 2 V. Wms. 641 ; Adams v. Peirce, .3 P. Wms. 11 ; lirown v. Ulton, ib. 202 ; Harrison v. Buckle, 1 Stra. 239 ; mnch v. Page, Bumb. 86 ; Mkl- dlecome v. Marlow, 2 Atk. 619. * Brooke v. Bickes, \1 W. R. 703, V. 0. S. ' Brett V. Forcer, 3 Atk. 40S. For case of a legacy given to husband and wife jointly, see Atcheson V. Atcheson, 11 Beav. 486, 488. • Qn this subject see Seton, 657, 671 ; 1 BrlgUt's H. & W. 88. p, ', (■•''■/>'!»S ^ t4 SUITS BY PERSONS WHO ARE tTNDER DISABILITY. the country or other cause, her examination may be taken by cdm- misBioncrs, under an order specially appointing thoni for this purpose.' Wliero it would be attended with inconvenience to have a married woman examined by the Court or a Judge, touching her consent to abandon her interest in the fund in litigation, tlie examination may bo talcen by the Master.^ Such order may be made in various forms, and at different stages of the proceedings. Thus, where, on pronounci ig the decree or order dealing with the fund, it is suggested by counsel that an immediate ex- amination of the wife by commissioners is intended, the Court, to save expense, will sometimes direct the fund to be carried over to tho .sepa- rate account of the wife, and by the same order appoint the commissioners, reserving liberty to apply : in which case, on completion of the exami- nation, an application for payment of the fund may be made by petition, or, in cases where there is jurisdiction at chambers, by motion. Or, the Court will direct the drawing up of the decree or order to be sus- pended for a few days, io afford an opportunity of taking the examina- tion in the interval : in the latter case, an ex 2><(>'tG motion is made for an-order to appoint the commissioners ; and wiien the examination has been completed, the matter is mentioned again to the Court, and the decree or order is directed to be drawn up, embodying therein the re- sult of the examination. Where, in any case, a fund has been carried over to liie wife's sepa- rate account, an application to deal with ?t may be made by petition, ^ or, wb.ere there is jurisdiction at char.ibers, by motion. When made by petition, the usual course is to get the petition answered for a day Hufticiently distant to allow of the examination being taken in the meantime ; on the petition being thus answered, an ex parte motion iw made in 58. No. t, examination again, and a The raarri of the politic the fund, anc ation by com The marri( examined sec I manner, and should be dis] examination i I hi taken in wi I lion, written a I affidavit verif I certificate, an |Ofiice: whenc Where the r (ing commissioi ^iciiting an exii llio fbllowiuir c Ii|)l)car before g ijrivately oxan fug, in the Fro Ittosted by not Jvi'iting, either lliat sucli sigiiii Jome credible iH-'fore a proper Jcate, and affidr jmblic, sworn tc Where, howe^ lielawof whicl jayahle to tho li PiiNt, however, 1 ■' The husband, or hi. examination; set I' Ite Tasburgh, 1 V. r Parsons v. Dunne, : I N. S. 12i)8 : 10 W. I'QBro. C. C. 063. f 2Bro. CL C. cd. Bell ■' i'umi)bell V. French Ihchcock V. Clen, '•;■• ; see liowever, oX'ourt, the cane mtnt, Johns. 10!». ^''({onnick V. GavH WSO each to a Fre ihe wives. MARRIED WOMEN. 16 exaiainatiou has been perfected, the motion to pay out is brought on again, and an order made. The married woman, may, however, attend the Court at the hearing of the petition, or the Judge at chambers, on the summons, to pay out tiie fund, and give her consent, so as to save the expense of an examin- ation by commissioners. The married woman, on attending the commissioners, (or Master) is examined secretly and apart from her husband,' to whom, in what manner, and for wliat j^urpose she is willing and desirous that the fund should bo disposed of; they read over to her the order under which the examination is taken, and explain to her its purport ; the examination i,j caken in writing, and is signed by her; a certificate of the examina- tion, written at the foot thereof, is then signed by the commissioners ; an affidavit verifying all the signatures is msxflo ; and the examination, certificate, and afiidavit^ arc filed at the Eccord and Writ Clerk's Office : whence office copies are procured. Where the married woman is abroad, an order will bo made appoint- ng commissioners resident there ; =» and the mode of taking and authen- icutingan examination out of the British dominions, is excmplifiotl b}' the following case. In 3Iinet v. Hyde,* the order was, that she should i|)[)oar before some of the plaintift's, and a magistrate of Lcydcn, to bo )i'ivatoly examined as to her consent : such examination to bo in writ- \]g, in the French or Gorman language, and to be signed by her, and ittoslod by notaries-public, whoso certificate thei-eof was also to bo in ivriting, either in the Frencli or German language. It was also oj'dored, lude Bliat such signing and cer I '-ate should bo verified by the affidavit of day ■onio credible witnesses, either iii the Gorman or French language, the B«foi-e a proper magistrate of Leyden; and that the examination, cortl- r.itc, and affidavit should bo translated into English by certain notaries- ublic, sworn to the truth of their translation^ Where, however, the wife is domiciled au.oad, and in a country by I'dor Blie law of which there is no e(juity to a settlement, but the whole is tand Dayablo to the husband, her consent is not necessary ; " that the law is so, 111 be Biust, however, be proved as a fact in each case.' IS tl 10 Ice of I sum- 'h, a the I' Tlio liusbniul, or liis solicitor, or any person connectod with them, Bhoiihl not h an affidavit is required to be made by the husband and wife, that no settlement, or agreement for a settlement, has been made ; or, if there is any sottlomont, or agreement, then an affidavit by them identifying the instrument, and stating that there is no other;' and the instrument must be produced. Where produced in Court, the counsel of the husband and wife certifies that he has carefully perused it, and that the fund in question is not affected thereby;' but where produced in chambers, an affidavit by their solicitor to the like effect is required, On an application for an order to examine the wife, unless the affidavit of no settlement be produced, the order will direct that it be made before the examination is taken:* in which case, it is usual to swear the affidavit bofoi'o one of the commissioners appointed by the order, if he is competent to administer an oath in Chancery. Where the irriage is not otherwise proved, the affidavit should state the timi: and i)lace of the marriage, and a certificate thereof should be exhibited. ' • As a general rule, the consent of the wife will not be taken by tli Court until the amount of the fund is clearly ascertained,* except wl,> iv it is subject only to a deduction for costs;" but her consent has been taken to the part ascertained from time to time."' Formerly, it was] not the practice of the Court to direct a fund belonging to £ man woman to be paid out of Court at the hearing of the cause ;« bu^ .. vasi directed to be transferred to a separate account, usually entitled the account of the husband and wife ; and after such transfer, a petition was presented for payment out of Court of the money so transferred,' Now, however, where the wife appears in Court and consents, the fiiii(]| may be directed to be paid out at the hearing of the cause, or on furlhei consideration.'" If the wife be not of full age, she is incapable of giving her consent; in that case, therefore, the Court will not examine her, but will requinj ' Seo Iloiigh v. liyleij, 2 Cox, 157 ; Mrlngton v. Elringfon, 4 Drew, 545. 5 When the joint attidavit cannot be obtained, the Court has been aatiefled witli otlier evidonn Rowland v. Oakley, 14 Jur. »45. V. C. K. B. ; Anon, 'A Jur. N. S. 8:^>, V. (; W. As to the affldi vit required where the wife is dead, and an aftldavit of no settlement eould not be obtained, s Clarke \. Woodward, 'iSiMeviy. '">. Where the settlement was Scotch, the Court reijuiri'di alHduvit of a Scotch advocate that it did not afl'ect the fund, Ee Todd. Shaiul. v. Kidd, Beav. 58-.>. ' See form of recital thereof In Seton, 687. No. 2. < Seo fiorm of t)rder, Scton, 058. No. 4. The V. V. Kindcrslcy requires tlio aflldavli to be prodiioij before the order to examine is mnde, Seton, 663. » SiKrling v. Roctifort, 8 Ves. 164. 178; Woollands v. Crowilur, 13 Ves. 174, 178: Jernegmi iiflj'^c;-, 6Mad.32; J/iwsv. 7>MH/o;;,8W. li. 31»,V. C. W. S.O.nmi. Amii. 5Jur.N.S.111 « Packer v. Packer, IColl. {(2; Mungrore v. Flood, 1 Jur. N. S. 1086, V. C. W ; Itofx-rU v. I'tM 1 Sm. & «. 188. T Powell V. Merrctt, Seton, 661. » CamiOeUw llardimj, a Sim. im. .... , ' » Ibid. '" 18 & 14 Vic. c, 35. s. '>8; and sec an/i We have no Statute similar to this. the husband; to make a j persists i.i g it ap2)ears tl wish. In I himself enti; liusband, whc previous case and being os hor husband, without the < to be insolvei ibr securing i unless circun husband aj^jie estate, over ^v slie might do It would sci in.ny claim a e being paid to was not aware sent.* It seems ths examination b examined in Rosslyn did n( amination of t to have been e of Virginia, ai legacy, which liehl, that whe iiig from the si or sold, and in levying a fine ' Sliibbs V. Sargoi, wifelf<;io«"i(.(/, ^ 3 \'..n. 8. .579. 'I' "f Court; sec a ' -' Atk. 07. ' See Milmr v. Col if). 452 ; IlearU -'Bro. C. C. 663 Burlton^ 4 Bro. ' Watmi V. Marsh ' 3 Ves. 381, 38:5. »L\RRIED WOMEN. W the husband, in case he applies to this Court for her equitable property, to make a proper settlement upon her. ' If the wife is of age, and persists i.i giving her consent, and waiving her equity to a settlement, it appears that the Tourt cannot refuse to act in accordance with her wish. In Ex parte Jlighatn,^ liowever, Lord Ilardwi^cke considered himself entitled to object to the whole fund being paid over to the husband, who was in trade, even though the wife consented ; but in the previous case of Willats v. Kay,^ Avhere the wife had appeared in Court, and being examined, desired that the whole money might be paid to her husband, the Master of the Eolls, although the parties had married without the consent of the wife's relations, and the husband appeared to be insolvent, refused to refer it to the Master to consider a scheme tor securing a provision fur the Avife : observing, that it was never done unless circumstances of fraud, or of compulsion on the part of the husband appear; and that a wife might as well dispose of her personal estate, over which she has an absolute control, as of real estate, wiiich she might do by joining in o tine with her husband." It would seem that, as long as the money remains in Court, the wife mny claim a settlement out of it, although she has consented to its being paid to her husband ; or that, at any rate, this is so where she was not aware of material circumstances at the time of giving her con- sent.' It seems that, were a wife's consent ha,^ been already given upon her examination before another competent tribunal, siic need not bo again [examined in a Court of Equity ; thus, in Campbell v French,^ Jjord Rosslyn did not think it nccess'iry to issue a commissini to take the ex- amination of a married woman residing in America, as she appeared [to have been examined under a commission issued by the government of Virginia, and had consented to u power of attorney to receive the legacy, which had been executed by her husband. And so it has been held, that where a married Avoman is entitled to a share of money aris- ing from the sale or mortgage of an estate which has bcoti mortgaged [or sold, and in order to effect such sale or mortgage she has joined 'n levying a fine of her share, and for that purpose has undergone the ' tiluhbs V. fturgon. 3 Boav. 'KM! ; Abraham v. Newcomhe, 12 8im^B6C. As to tiic coiirae, wIutc tlio wife \» noil cwnpos, Hec CaldccoU v. llarrisoti, Scton, 6(5.3. '^ 'I V.»e. 8. .'57!). The grouiul of this dofision appears to liave beon, timt tlic lady hail been a ward .>f (;.mrt ; sec also Biddks v. Jacknon, 20 Boav. ->H-i ; 3 Do G. & J. Wl : 4 Jur. N. S. 100!) : .'» i'>. iH)l. ' •-' Atk. 67. ' HeoMilnerv. Calmer, 2 P. Wms. «::o, 642: Lfinoy v. Alhol, 2 Atk. 444. 418; Oldham v. Hwihes, ih. 452; Ilearle v. G"<'enbapk\ li Atk. m»5, 709; ParaouK v. Dunne, 2 Vcs. S. 60; Mlmt v. Ihjde, 2 Bro. 0. C. 663; IHmmoch v. Atkiiiyon,:i Bro. C. C. 1"JG; E'Uis v. Atkinson, ih. 565; Ilood v. But lion, 4 Bro. C. C. ISl. ' natmiv. Marshall, 17 Bt'a.v.ZiiS. . . " 3 VcB. 381, 333. 78 SUITS BY PERSONS WHO ARE UNDER DISABILITY. usual examination in the Court where such fine has been levierl, she will be barred, by the fine, of her equity for a settlement." The right of a married woman to have a settlement made of, or out of, a fund in Court, arisen, however small the fund may be; but if it is under £200, or is likely to be reduced thereto by eosts,^ or produces less than £10 a-ycar,^ she may waive her equity to a settlement with- out being separately examined. * When the Accoimtant-General is directed to pay or ti'ansfer any sum of money or stock to an unmarried Avoman, and she marries before pay- ment or transfer, and the sum does not exceed £200, or £10 a year, the Accountant-General may paj'- or transfer the same to the woman and lier husband, upon proof of the marriage, and such affidavit of no settlement as has been mentioned above ;5 or, in case there has been a settlement, upon the affidavit of the solicitor, that in his judgment the settlement does not att'cct the fund. But whore the fund in Court exceeds the limit above mentioned, a special order for payment is necessary : which caii bo obtained at chambers, on expartc motion, sup- ported by the production of the order under which the fund was directed to be paid to the woman, the Accountant-General's cei'tificate, and an affidavit by her and her husband of the marriage, and of no settlement; or by petition on the like evidence, where there is no juj'isdiction at chambers. The Court v/ill not dispense with the separate examination of the married woman in cases where it is proposed to pay the fund to her separate receipt; as that would be, in effect, the same as payment to the husband. 6 The rule of the Court appears to be, that the wife can only consent to part with that interest which is the creature of a Court of Equity: viz., the right which she has, in a Court of Equity, to claim a provision by way of settlement on herself and children, out of the property which, at Law, the husband could take possession of in her right.' This equity arises upon the husband's legal right to present possession ; and the principle has no application to a remainder or reversion, which can only bo passed to the husband when it falls into possession. » With respect ' May V. Roper, 4 Sim. iiflO ; see now .3 & 4 Will. IV. c. 74, s. 77, substltutinff an acknowledged di'i'd for a line : Shelforil, K. P. Stat. 389. 'J RoberU v. Collett, 1 Sm. & G. 138 ; but seo Sporle v. Barmbij, 10 Jur. N. S. 1142, V. C. S. 3 Seo Seton, C60 ; Ord. 1. 1. ■• Re Kinkaid, 1 Drew. 320. The case of Foden v. Finiieij, 4 Russ. 428, in not now binding, lu Cutler, 14 Beav. 220 ; and see Doodi/ v. lliggim, 3 Jiir. N. S. 10(>8, V. C. W. ^ Ante. It may be observed tliat in this Province the Registrar may be considered, in a general way, as the Accountant General under Orders 352 et seq. " Mawe V. HeaviHde, 7 Jur. N. S. 817 ; 9 W. R. 040, V.C.K. : Gibbons v. Kibbcy, 7 Jur. N. 8. 12!t8 : 10 W. It. 5,5, V. C. K. ; and see Seton, mi. ■> Pkkard v. Roberts, 3 Mad. 386. ^ '' « Ibid. to an interest Court will not her future rigl ordisjioso of ij Thus, a petitic of a sum of mt t'eath of her m In Macannic upon the consc of trust monej" variance Avith 0.1 the marria^ trustees, upon his death to th the principal t( husband, havin cuting a deed-j the husband ; j trustees were d In the case c tore Lord Cottt nient to a reve assignments of upon herself, n to have it paid and a review o: "Where prope her separate e:; to a purchaser, she is, as to thi over it; 5 and it in possession." whom an annul husband in assi husband, and tl of the testator ■ Per Lord Cottcnh equity, under tl ■^ IHckard v. R(J)fr \eti.m);Ritch et seq. ' 1 Cox, 357. ' 2 Phil. 731: li «( * Unless she is osti " Sittrgis v. tor/), MARRIED WOMEN. m to an interest of this description, it has been stuted generally, that the Court Avill not allow her, by any act of hern during covorUire, to bind her future rights. Vrithout her consent, the Court will not deal with it or dispose of it at all: and her consent the Court will refuse to take.' Thus, a petition, which had for its object the payment lo the husband of a sum of money, to which the wife was entitled in rcveision alier the t'eath of her mothci-, Avas refused.^ In Macannickv. BuUcr,^ however, Lord Kcnyoii, M. It., nuule an order, upon the consent of a married woman given in Court, for the payment of trust money to her husband, which appears to be completely at variance with the rule laid down in the cases just cited. In that case, oa the marriage of the plaintiff, a sum of £9,000 had lieeii vested in trustees, ujion trust to pay the interest to +he husband for life, and after his death to the wife for lite, and upon the d nith of the survivor to pay the principal to such pevHons as such survivor should direct; but the husband, having occasion lor the monej', joined with the wife- in exe- cuting a deed-poll, whereby they appointed the money immediately to the husband; and upon personal examination of the wife in Court, the trustees were directed to pay the money to the liusl)and. In the case of Whittle \. Ilcruiing,'^ the important (question came be- fore Lord Cottenham, whether a married woman, entitled under settle- ment to a reversionary interest in a fund in Court, could, l)y obtaining assignments of all the interests in the fund previous to that settled upon herself, make herself alisolutely entitled to tlio whole fund, so as to have it paid out of Court. It was held, after an elaborate judgment, and a review of all the cases, that she could not do so. ^Vliero property is settled to the separate use of a married woman, her separate examination is not necessary in order to pass her interest to a purchaser. The principle upon Avhich this rule is founded is, that she is, as to that property, a feme sole, and, as such has a disposing power over it; 5 and it applies as much to reversionary property as to ])roperty in possession. 8 Upon the same principle, Avhere a married woman to whom an annuity was bc([ueathed for her separate use, joined with her husband in assigning part of it for a valuable consideration, and she, the husband, and the purchaser, afterwards tiled a bill against the executors of the testator under whom the annuity was claimed : a doubt having I I I •5 P i ' Per Lord Oottenham, in Frank v. Frank; 3 M. & ('. 178. She may however, now release her equity, under the provisions of the 2() & 'il Vie. e. 57. ••' IHckard v. Jtoherfs, 3 Mad. ;iS4 , see Slifffi v. Kreritf, 1 M. & 0. 37, 41 ; Richardu v. Chambers, 10 Ves. 580 ; EitcJde v. JJroadbent, 3 J. ifc W. 456 ; Osborne v. Morgan, 9 Uare, 434 ; and post, p. 117, et seq. ' 1 Cox, 357. ^ 2 Phil. 731 : li fluav. 22-J : Siory v. Tomje, 7 Boav. 91. '" Unless she is ostrained from anticipation, sec Symonds v. U'tVA'.'', 1:? W. K. 541, M. K. " StKrgis v. torp, 13 Ves. 190 ; and soo Ktene v. Johnston, 1 Jones and Car. 253. 80 SUITS BY PERSONS WHO ARE UNDER DISABILITY. occuiTed whether, in such u case, a decree could be taken by consent, Sir J. Leach, M. E., Avas of opinion that it couUl, and directed the decree to be drawn up accordingly.' But ultliougl), whore property has been settled to the separate use of a married woman, the Court will give effect to her alienation of hucIi projxvuty; in the name manner that it given effect to an alienation of a foiu! sole, the rule does not extend to transactions AVith her husband, which are looked upon by the Court Avith considerable jealousy ; so much ho, that the Court has refused to pay the separate money of the wife to the husband, Avithout the examination of the Avife in Court.^ I( is not, however, to be understood that a wife may not, in any case, dis- pose of her separate propc / to her husband, unless by consent in Court, or before commissioners. Several instances have occurred where Avives, by acts humis, have parted Avith se])arate property to their hus- bands. ^ It should bo observed, liOAvever, that such gifts are never to be inferred Avithout very clear evidence.* If a married Avoman, upon being examined apart from her husband, refuses to give her consent to the money being paid to him, the conse- quence of such refusal is, that the Court directs a proper settlement to be made, generally determining at once* the amount to be settled, and referring it to chambers to approve of the necessary deed ; and the pro- ceedings are usually completed there, Avithout further mention to the Court. 8 If the fund is small, it is usual, for the purpose of saving the expense of a deed, to settle the fujid at once by the decree or order.' It is to be remarked, that although the Court Avill, in general, oblige the husband to make a settlement upon his Avife and children of any property Avhich he may be entitled to in right of his Avife, for the re- covery of Avhich it is necessary to resort to a Court of Equity, yet, Avherc there is no suit pondingv the husband is authorised to lay hold of his Avife's property, Avhercver he can find it." ' SHnson v. Ashley, 5 Russ. 4 ; but it would seem that there mn*t be an affidavit of no seetlenieiit, /. mil, 3 Jur. N. S. 830, V. O. AV. " 2 Bri|4'e8 decline to *»:t, the fund was ordered to r-jmain in Court as settled, and the interest to be paia lo the wife for her separate use for life, Ke Butt, cited, Seton 071, * Jewson V. Moulson, 3 Atk. 419. There is no sion of the wi real estate to i and the Court equally refuse in order that afforded her b joined Avith th( ever. ^ Wher exercise his d: trustee, and it Avith the propi With resj^ec the proportion laid doAvn : th and depending husband is livi will, in the abs on the Avhole, t living with the has become bai some portion c and children. been before obi each i)arfeiculai been settled : a advances from and contribute( Aent, and had i husband Avas ba reports, numer( the whole fund ■ Murray v. Lord 1 • Glainster v. Ilewt '•' Re Swan's Seltlen * Btdlock V. Memie ' Gardner v. Marsi " Gilchrist v. Cator Kernick, 4 N. R children, the wh her death, in res ' Scott V. Spashett, I " Dunkley v. Dunkh ' Re Cutler, 14 Beiv Marshall, 17 Bei G. 782; Genty.. 22 Beav. 588 ; Rt MARRIED WOMEN. 91 There is no doubt that, previously to a bill, a trustee who is in posses- sion of the wife's property, real or personal, may pay the rents of the real estate to the husband, or may hand over to him the personal estate ; ' and the Court will not, upon bill filed, recall it.^ But the trustee may equally refuse to pay the husband till compelled by the filing of a bill, in order that the wife may obtain the full benefit of the protection jiffoi-dcd her by a Court of Equity ; and the circumstance that the wife joined with the husband in making the demand is of no weight what- ever. ^ Whore, however, a biil has already been filed, a trustee cannot exercise his discretion upon this point; as the bill makes the Court the trustee, and takes away from the actual trustee his right of dealing with the property, without its sanction. With resiiect to the nature of the settlement made by the Court, and the proportion of the interest given to the wife, no certain rule can be laid down : the amount being entirely in the discretion of the Court, and depending upon the particular circumstances of each case. If the husband is living with her, and maintaining her and her children, he will, in the absence of any special circumstances, be allowed the interest on the whole, so long as he maintains her." When the husband is not living with the wife and maintaining her and her children, as when he has become bankrupt or insolvent, or has deserted her, the whole, or. some portion of the fund will be settled, immedifitely, upon the wife and children. With regard to the amount which will be settled, it has been before observed, that this depends upon all the circumstances of each particular case; but it may be mentioned, that the whole fund has been settled : where the husband was bankruj)t, and had received large advances from the wife's father;' where the husband deserted his wife, and contributed nothing to her support ; « where the husband was insol- vent, and had received largo sums in right of his wifo;'^ and where the husband was bankrupt, and had deserted his wife ; « and in the recent reports, numerous cases will be found in which, under the circumstances, the whole fund was settled. « In other cases, the fund has been divi- "m \ o "I- Murray v. JLord Elibank, 10 Ves. 90. (flainster v. Hewer, 8 Vea. 206; Macaulay v. Philips, 4 Ves. 15 ; Murray v. Elibank, 10 Vej. UO. He Swan's Settlement, 12 W. R. 733, V. C. W BtUlock V. Menzies, 4 Vee. 798; Sleech v. Thorlngton, 2 Ves. S. 560. Uardner v. Marshall, 14 Sim. 575, 584. Gilchrist v. Cator, 1 De G. & S. 188; Re Ford, S2 Bcav. 621 ; 9 Jur. N. S. 740. In Kernlck v. Kernick, 4 N. R. 63.3, V. C. W.. where the husband had deserled the wife, but maintained their children, the whole fund was settled on her for life ; but leave was reserved to him to apply, on her death, in respect to the payment to him of any part of the income during his life. Scott V. Spa^hett, 3 M'N. & G. 5™i ' Dunkley v. Dmikley, 2 De G. M. & G. 890, 396. Re Cutler, 14 Beiv. 220; Marshall v. Fowler, 16 Beav. 249; Re Kincald, 1 Drew. 356; Watson v. Marshall, 17 Beav. 368 ; Francis v. Brooking, 19 Beav. -347 ; Barrow v. Barrow, 6 De G. M. & G. 782; Gent v. Harris, 10 Ha'e, 3&4 ; Re Wilson, 1 Jur. N. 8. 569, V.C.S. ; Koeber v. Sturgin, 28 Beav. 588 ; Re Disney, 2 Jur. N. 8. 2(t8, V.C.W. ; Re Welchman, 1 Gift'. 31 ; 5 Jur. N. 8. 886 ; r' w ■ 82 SUITS BY PERSONS WHO ARE UNDER DISABILITY. ded;' and in the older cases one-half has been frequently settled;" but the rule that one half is generally the proportion settled, which is often referred to in the older reports, is, it would seem, not much regarded in the more recent cases ; ' where however, the fund is under £200, it is the usual pratice not to divide it.* The Court, however, will not permit the equity of the wife, to main- tenance out of her own fortune, to be defeated by any trick or con- trivance for that purpose on the jiart of her husband. If, therefore, as in Colmer v. Colmer,' he, with an intention to desert her (which he afterwards carries into eft'ect), make a fraudulent conveyance of his and her property, upon trust to pay his own debts, the transaction will not prejudice her right to maintenance ; but the Court will follow her property into the hands of the trustees, and order her an allowanco suitable to her fortune, and the circumstances of her husband, although it may be necessary, in order to effect that purpose, to resort to part of his own property so vested in trust. It is to be observed, that the Court will, as has been shown, not only appropriate the interest of a Avife's equitable property, for her support, in cases where she has been deserted by her husband, or obliged to leave him in consequence of his improper conduct towards her, but it will, under similar circumstances, if a stranger has advanced to the Avif'c money for her maintenance, order it to be repaid to him out of her estate.* Thus, in Guy v. Pearkes,'' where it appeared that the wife was unprovided for ; that her husband, after having gone to sea and deserted her, had subsequently to his return neither cohabited with her, nor afforded her any support, but had since gone to the East Indies, and had not been again heard of; and that it was unknown whether he were living or dead ; and it also appeared that A. had made advances to her of £30 a-year during the above period, which were her only support: upon application being made to the Court, that so much of the wife'« stock standing in the Accountant-General's name as would raise £210 might be sold, and the proceeds paid to A. in satisfaction of his debt, and that a further sum of £50 might be paid to the wife, and that the Smith V. Smith, 3 Giff. 131 ; Ward v. Yates, 1 Dr. & S. 80; Buncombe v. Oreenacre, 29 Beav. 57f : 7 Jur. N. S. 650; Re Tubbs, 8 W. R. 270, V.C.K. ; and see Re Qrme, 3 Glff. 675 ; 9 Jur. N. S. 38 ; P.e Merriman, 10 W. R 334; Kernick v. Kernick, 4 N, R. sas, V. C. W. > Napier v. Napier, 1 Dm. & War. 407 ; Coster v. Coster, 9 Sim. 597 : Ex parte Pugh, 1 Drew. 202; Bagshaw v. Winter, 5 De G. «& 8. 466 ; Walker v. Drury, 17 Beav. 482. 2 Jewson V. MouUon, 2 Atk 417, 4?3 ; Worrall v. Marlor, 1 Cox. 163; 2 Dick. 647; Brown v. Clark 3 Ves. 166; Pringle v. Hodgson, ib. 617, 620; Steinmetz v. JIalthin, I Glyn. & J. 64; jKc partf OFerraU, ib. 347. = Re Kinccdd, 1 Drew. 826; Ward v. Yates, 1 Dr. & S. 80; Archer v. Gardner, C. P. Coop. 340; Spirett V. WilUrws, 12 W. R. 734; Re Tubbs, 8 W. R. 270, V. C. K. ; but see Re Grace, 3 Giff, 676: 9Jur. N. S. 38. * Ibid. » Mo9. 118, 131 ; see also Atherton v. Nowell, 1 Cox, 829. • 1 Briglit, H. & W. 258. ' 18 Ves. 196 ; and see Re Ford, 32 Beav. C21 : 9 Jur. N. S. 740. dividends upo her support, t that he was in paid them out Lord Eklon th my mind that think the Coui credit for nece execution coul tained circuito consent to the If a husband without sufHci( tion for the int to him, even th As to the eff< tonance, it is a Justice ought D( and i^roper to r that if the Avife will not conside has committed sufficient reasoi iior suit to alloA) The question by purchase froi would or would mont, was long such an assignee the fund, for the by a husband, of ho desert her an( after his death.' between the case ' Bullock V. Memies, '^ 1 Bright, H. &. W. S 616 ; but see Be L Greedy v. Lavend ' Like V. Beresford, 3 ' Mqcaulay v. Philips. W. 472; Carter y. &G. 867: 18 Jur. i * Elliott V. Cordell, 5 ] ' Tidd V. Lister, 3 De ' 'Itife v. Everitt, 1 IM ' Be Duffy, 28 Beav. 31 1 '?^l MARRIED WOMEN. 83 f^ ■I ■ A'l dividends upon the remaining fund might in future be paid to her for her support, the application was granted : A. having made an affidavit, that ho was induced to make the advances upon the faith of being re- paid them out of the above property. In jironouncing his judgment, Lord Eldon thus expressed himself: "I have a strong impression upon my mind that this has been done, and, inde])endently of precedent, I think the Court may do it: as the husband, deserting his wife, leaves her credit for necessaries, and would be liable to an action ; and although execution could not bo had against the stock, tlie eftect might be ob- tained circuitously, as he could not relieve himself, excej)t by giving his consent to the application of this fund." If a husband be Avilling, and offer to maintain his wife, and she, without sufficient reason, refuse to reside with him : ujion his applica- tion for the interest of her fortune, the Court will order payment of it to him, even though he decline to make a settlement upon her.' As to the effect of the wife's misconduct upon lier equity for a main- tenance, it is a trite observation, that persons ajipealing to a Court of Justice ought to enter it with clean hands ; i. €., they must be worthy and proper to receive the redress which they seek : hence it follows, that if the wife has been guilty of gross misconduct, a Court of Equity will not consider her to be entitled to protection. If, therefore, she has committed adultery, or has eloped from her husband without a sufficient reason, the Court will remain passive, and not interfere at her suit to allow her a maintenance out of her equitable property. ^ The question whether, in the case of a particular assignee claiming by purchase from the liusband for a valuable consideration, the Court would or would not impose upon him the condition of making a settle- ment, was long considered doubtful ; ^ it is now settled, however, that such an assignee of a capital fund is bound to make a provision, out of the fund, for the wife and her children;* but the assignment for value by a husband, of his wife's life estate, Avill prevail against her,^ though ho desert her and leave her destitute, ^ during their joint lives, but not after his death. ' On principle, however, it seems difficult to distinguish bet\veen the case of a capital fund and a life interest. ' ' Bullock V. Memies, 4 Ves. 798 ; see, however, Eedes v. Eedes, 11 Sim. 560. 2 1 Bright, H. &. W. 249 et sea. ; Ball v. ifontQomeri/, 2 Ves. J. 191 ; Duncan v. Campbell, 13 Sim. 616; but see Be Leioin's T)-usts, id Beav. SIS; Kernick v. Kernick, 4 N. R. ;«3, V. C. W. ; Greedy v. Lavender, 13 Bcav. 62. 3 Like V. Beresford, 3 Ves. 506, 511 ; Pryor v. Hill, 4 Bro. C. C. 139; Macaukvj v. Philips. 4 Ves. 19. ' Macaulay v. Philips, i Ves. 19; Franco v. Franco, 4 Ves. 51?, 5.j0: Johnson v. Johnson, 1 J. & W. 472; Carter v. Taggart, 5 De O. & 8. 49: 1 De u. 11. & O. 286 ; Tidd v. Lister, 3 De G. M. &G. 867: 18 Jur. 543. 5 EUiott V. CordeU, 5 Mad. 149 ; Stanton v. Hall, 2 R. & M. 175. » Tidd V. Lister, 3 De G. M. & (f. 587: 18 Jur. 513. • r ' mffe V. Everitt, 1 M. & t. 87. • . " i?e Z)(//ry, 28 Beav. 386. . t I i I s i 1T8 BV PERSONS WHO ARE UMDER DISABILITY. i'|l iti i Although, ill general, the Court allows the husband, whilst ho main- tains his wife, the income of her property, yet it must not be supposed that this is an absolute right on his part, or that, upon the death of the husband, his representative is entitled to the arrears of income accrued during his life. As a general rule, the Avifo surviving is entitled to all property of her own not reduced into possession during the coverture ; and this applies to the arrears upon life income which accrued, but were not received, during the coverture.' It appears formerly to have been considered, that if the husband ht'd made a settlement upon his wife upon their marriage, the wife would bo debarred of her right to a further provision out of any proper!}- which might subsequently accrue to her.a This is not the rule,^ but in such cases it dejiends upon the terms of the settlement ; for if it aji- pears, either by express words or by fair inference, that it was the intention of the parties that the husband should be the purchaser of the future as well as the present property of the wife, the Court will not require the husband to make an additional settlement.* In such cases, however, the settlement, for this purpose, must either express it to bo in consideration of the wife's fortune, or the contents of it, altogether, must import it, and plainly import it, as much as if it we re expressed.' But in determining the amount to be settled, any previous settlement is always taken into consideration ;« as is also the amount of property received by the husband in right of his wife.' The wife's equity to a settlement is not for her benefit only, but for that of herself and children;' and though, as has been before slated,' she may, upon her examination, waive it, she cannot take the benefit | of it for herself, and relinquish it on behalf of her children. But though the equity which compels the husband to make a settle ment out of the wife's personal estate is the right of the children, as I well as of the wife, yet it does not survive to the children after her death;'" but in such case the Avhole fund will go to the husband bvl « Wilkinson v. CharUworth, 10 Beav. 324. » Lanoy v. Duke of Athol^ 2 Atk. 448. ' March V. Head, 3 Atk. 720 ; Tomkins v. Ludbroke. 2 Ve». S. 591, 593 ; Stackpole v. Beaumont^ 3 1 Ves. 89, 98; Lady Elibank v. Montolleu, 5 Ves. 737. * Brooke v. Ilickes, 12 W. E. 703, V. C. S. * Per Lord Eldon, in Bruce v. Deniaon, 6 Ves. 395. * Lady Elibank, v. Montolieu, 5 Ves. 737; Freeman v. Fairlie, 11 Jur. 447, V. C. E. ; Re ErskiiuA K. &J.302. ' Green v. Otte, 1 8. & S. 250, 234; Napier v. Napier, 1 Dr. & War. 407. 8 Murray v. Lord Elibank. 10 Vee. 84 ; Uqyd v. WiUiaim, 1 Mad. 450, 459 : Be Walker, L. & G. i Sug. 299 ; Hodgens v. Hodgens 4 01. & F. 323 : 11 Bli. 62. Johnson v. Johnson, 1 J. & W. 4iJ contra, would not now. It is apprehended, be followed. » Ante. »» Scrivenv. Tapley, Z Eden, m : Amb. 509; Fenner v. Taylor, 2 H. &M. 190; Be la Garde''' Lempriere, 6 Beav. 844 ; Baker v. Bayldon, 8 Hare, 210 ; Lovett v. Lovett, Johns. 118 ; Wallaa V. Aul^o, S N. R. 567, L.JJ. ; 2 Dr. & 8m. 816 : 9 Jur. N. 8. 687. survivorship the case of Northington however, fro in Lloyd V. J] and that it d In Murray of Lloyd V. y subject, have them to have Plumer, that unless there 1 in her lifetimi The wife m ordered, appe; so as altogethi insisting upoi assignees in bi children's inte contract enter it would Si, em concerned, but It seems thi the parties die there are no between the hi V. Philips,^ Lo even after a order, the husl said, that he di( if the proposal ordered to be i it as actually r ' Wallace v.Aiddji ■ 1 Dick. 391. ' 1 Mad. 450, 464. * 10 Ves. 84, 92. ' 1 Mad. 467; and a «<*. nom. Grovt ' Barrow v. Barro Elibank, 10 Ves ' Whittem v. Sawyt ' Anon, 2 Ves. 8. 67 Lovett, Johns. 1 • 4 \e». 19. MARRIED WOMEN. survivorship.' It 1ms been thought that Sir Thomas Sewell, M. B., in the case of Cockel v. Phipps,^ acted in direct contradiction to Lord Northington's decision uj)on this point in Hcricen v. Tapley. It appears, however, from the very elaborate judgment of Sir Thomas Plumer,V. C, in Lloyd v. Williams, ^ that the former case has been erroneously reported, and that it does not bear upon the question. , ; . In Murray v. Lord Elibank,* and particularly in the above-cited ease of Lloyd V. Williams, all the previous cases, and the reasoning upon the subject, have been collected and commented upon ; and it appears from them to have been the opinion, both of Lord Eldon, and of Sir Thomas Plumer, that the children have no equity after the death of the mother, unless there has been a contract, or a decree or order, for a settlement, in her lifetime.* ^ The wife may, at any time before the settlement has been finally ordered, appear in Court, or before Commissioners, and waive her right, so as altogether to defeat her children. ^ She cannot, however, after insisting upon her right co a settlement as against her husband's assignees in bankruptcy, subsequently waive her equity, and defeat her children's interest, except it be in favour of the assignees.' After a contract entered into on the part of the husband to make a settlement, it would soem that the wife can waive it as far as her own interest is concerned, but not for her children. 8 -r It seems that if, after a reference to approve of a settlement, one of the parties die before the settlement be approved of by the Court, and there are no children of the marriage, the right of survivorship, as between" the husband and the wife, is not affected. Thus, in Macauley ■ V. Philips,' Lord Alvanley, M. E., laid it down, that if the wife had died even after a proposal had been made by the husband under such an order, the husband would have been entitled. His lordship, however, said, that he did not mean to determine what the case would have been if the proposal had been approved of by the Court, and a settlement ordered to be made, as perhaps then the Court would have considered it as actually made ; and that he was fiar from determining that, in such ' Wallace v. Axilctjo,%ibi Slip. M Dick. 891. ■'-■■■■ r » 1 Mad. 450, 464. , ♦ 10 Ves. 84, 98. ' 1 Mad. 467; and see Llayd v. Mason, 5 Hare, 149, 152; Ormes v. Clarke, 1 Keen, 130; 8. C. sub. nom. Groves v. Perkins, 6 Sim. 576, 684. ' Barrow v. Barrow, 4 K. & J. 409, 424 ; and see Howe v. Jackson, 2 Dick. 004 ; Murray v. Lord Elibank, 10 Vee. 84; Martin v. Mitchell, cited, il>. 89; Stetnmetz v. Halthin, 1 Glynn & J. «4. ' WMttem V. Sawyer, 1 Bcav. 593 ; Barker v. Lea, Mad. 330. " Anon, 2 Ves. 8. 671; and Fenner v. Taylor, 9 R. & M. 190, reversing >S. (J. 1 Him. 1(59; Lwetl v. Lavett, Jo)in9. lis. • 4 Ves. 19. I ^, ^%^. IMAGE EVALUATION TEST TARGET (MT-3) '^r. "h '/ /A 1.0 I.I 1.25 liilM 125 ■SO ■^" M^ Vi i2i2 122 Wtau IE I U. ||||,.6 A" o Hiotographic Sciences Corporation ^>^ 23 WIST MAIN STRUT WIBSTM.N.Y. I4SM (716) •72-4503 '^ 6(i SUITS BY PEIlSOI^Sx WHO ARE UNDER DISABILITY. a case, tho settlement would be entirely at an end ; on the contrary, ho thought it would be binding, and that tho accident would make no difference. However, in Baldwin v. Baldwin,^ Sir James Parker, V. C, held, that after the Master had approved of a settlement, the wife, upon the death of her husband, might still repiidiate the settlement, or set up her claim by survivorship. It may be observed here, that, as a general rule, if tho wife be an adulteress, living apart from her husband,^ a Court of Equity will not interfere, upon her application for a settlement out of her own choses in action. In some cases, however, under special circumstances, a settle- ment in her favour has been made, notwithstanding thesidultery :=• and, of course, if she is not an adulteress, her living apart from her husband, is no bar to her equity.* In cases of this description, the fact of the husband living apart from his wife, and not supporting her, is a reason f^^ ^'pst tho fund, or tho income, being paid to him;^ but, nevertheless, ;u Gome cases this has been done." Where, however, female wards of Court are married without its con- sent, although they afterwards live in adultery, the Court will enforce a settlement:' because, the marriage being a contempt, the Court thereby obtained jurisdiction to commit the husbanu, in consequence of his misconduct, until he should make a proper settlement, and will not part with that power until that act bo done, whatever may be the irregularity of the wife's conduct : which may bo attributed, in some degree, to her husband's conduct in procuring such a clandestine marriage. With reference to the form of settlement, it is to be observed, that the practice is to settle the property in trust for the wife, for her sepa- rate use, for life, without power of anticipation, and after her death, for her children ; and in default of children, for her absolutely, if she sur- vives her husband ; but if she dies in his lifetime, then in trust for hor husband, or his assignees. ' Having now treated of the subject of a married woman's equity to a ' 5 De O. & 8. 319; and see Heath v. Lewis, 10 Jur. N. S. 1003: 13 W. R. 129, V. C. 8., where the wife, being subBcqueutly divorced, was ailowed to repudiate the settiemcnt. " 1 Bright, II. & W. 953 ; Carr v. Kastabrooke, 4 Ves. 146 ; Ball v. Montgomery, 2 Vcs. J. 191, 199 ; n'atkyrm v. Watkynn, 2 Atii, 97 ; and see judjjment of L. J. Tunier In Jiarrow v. Barrow, 6 De G. M. & O. m. s Oreedy v. Lavender, 13 Beav. 62 ; Re Lewin's Trmt, 20 Beav. 378. * Eedes v. Eedes, 11 Sim. 669 ; and see Kernick v Kernick, 4 N. R. 883, V.C.W. * Carr v. Eattabrooke, 4 Vcs. 140. * B(ai V. Montgomery, 2 Ves. J. 191 ; Duncan v. Campbell, 12 Bim. 616, 636, 638. ' BaU V. CoutU, 1 V. & B. 292, mt,2M\ Re Walker, L. & G. t. Hug. 999; and see, generally, as to the mode in which tlie Court deals with the property of a female ward marrying without consent, Field V. Moore, 7 De G. M. & O. 891; 2 Jur. N. 8. 145. •» Carter v. Taggart, 1 Be G. M. 4 O. 286; Bagshaw v. Winter, 5 De G. & 8. 466 ; Oent v. Harrit, 10 Hare, 3*5 : Seton, «160 ; Ward v. Tatea, 1 Dr. A S. t» ; and see form of order, where (Und was settled by the order, Watson v. Marsnall,n Beav. 386; Duncotnbe v. Oreenacre, No. 2, 89 Beav. 678; Re Tubb», 8 W. R. 270, V. C. K, ; Seton, 665. MARRIED W'^^tEN. ) 8i settlement, into which we have been lod in considering the ground on which the Court of Chancery requires a wife to be joined as co-plaintiff with her husband, in suits relating to her own property : we may re- turn to the subject of suits by /ernes covert generally. It is now settled, that all cases in which the husband and wife sue as co-plaintiffs together, or in which the husband sues as next friend of his wife, are regarded as suits of the husband alone. ' And upon this principle, where a married woman, having a separate interest, joins as a co-plaintiff with her husband, instead oi" suing by her next friend, the suit will not pre- judice a future claim by the wife in respect of her separate interest;" and it has been decided, that a suit by a husband and wife against the trustees of the wife's separate proportj'',, cannot be pleaded in bar to a subsequent suit by her by her next friend .against the trustees and her husband, although the relief prayed in both suits is the same.' ■ * In general, therefore, where the suit relates to the separate property of the wife,* it is necessary that the bill should bo filed in her name, by her next friend ; otherwise, the defendant may demur, upon the ground that the wife might at any future time institute a new suit for the same matter, and that, upon such new suit being instituted a de- cree in a cause over which her husband had the exclusive control and authority, would not operate as a valid bar against her subsequent claira.5 • J • ' - > '^l In suits by a married woman respecting her separate property, she must sue separately from her husband (by her next friend) and must make her husband a defendant ; as otherwise the proceeding is looked upon as exclusively the suit of the husband, and would not be con- clusive on the wife or those claiming under her.* Where one of several co-plaintiffs is a married woman, she must sue by next friend, who must be a solvent person, capable of answering costs.' Where a mar- ried woman files a bill without a next friend, the proper order to make, in the first instance, is that a next friend be appointed, and that all proceedings in the suit be stayed in the meantime. ^ ' Wake V. Parker, 8 Keen, 69, 70; Davig v. Prout, 7 Benv. 888, 890. A plea of insolvency of the husband, was diBBaUowed to a bi)l by him and his wife for payment of an annuity bequeathed for the benefit of the latter, which had fallen into pospooslon after the insolvency, the asBitmees declining to interfere, Olover v. Weedon, 8 Jur. N. S. 9a3, V. C. S. ^ Htighu v. Bvant, 1 S. & S. 185 ; Turner v. Turner, 2 De O. M. & G. 88, 87. ' Reeve v. DaUy^ 8 S. & S. 464. On this principle, a plea of release by the husband, to a bill by the husband and wife for property limited to her separate use, was held good, Stocice v. Vincent, 1 Coll. 687. * Where the bill is flled to rectify a marriaM settlement, the wife ought to be a party independently of h«r husband, M' GiUdowney v. PemStrton, 10 L. T. N. S. 898, V. C. W. ' Wake V. Parker, 3 Keen, 69, 70 ; sec also, Warren v, Buck, 4 Beav. 95, as to the time when the objection can be taken by the defendant ; and sec Hope v. Fox, IJ <1b II. 466: 7 Jur. N. S., 18(>, where the suit related to the execution of a power vested in a married woman ; and s(>e Mernhn v. ChudaUa (No. 8), 10 W. R. 486, V. C. W. ' HovkUng r. PooUy I Grant 806. ' Bonn V. Lawteu, 1 Cham. R. 3.3.S. " McPherson v. McCabe, 1 Cham. R. 350. * .i ■ 'I TWS i« SUIT8 BY PERSONS VfftO AtLt tNDER DISABILITY. Whore, however, the suit is for a chose in action of the wife, not settled to her separate use, the defendant cannot object to the husband's suing jointly with her as co-plaintiff ; nor will her right to a settlement be prejudiced by the fact of her husband being so joined with her in the suit. Wliero the wife sues by her next friend, the husband miist still be a party, and it is usual to make him a defendant ; ' but in some cases he has been allowed to bo mado a co-plaintiff.' As a wife may sue her husband in respect of her separate property, =' so may a husband in a similar case sue his wife.* Such suit, however, can only be in respect of his wife's separate estate : for a husband can- not have a discovery of his own estate against his wife.^ In those cases where it is necessary that a suit respecting the property of a married woman should bo instituted against her husband, or that the husband should be one of the defendants: as tho wife, being under tho disability of coverture, cannot sue alone, and she cannot sue under the protection of her husband, she must seek other protection, and the bill must be exhibited in her name, by her next friend, « who is named as such in the bill, as in the case of an infant.' A bill, however, cannot, as in the case of an infant, be filed by a next friend on behalf of a married women, without her consent;" and if a suit should be so in- stituted, upon special motion, supported by her affidavit of the matter, it will be dismissed.^ So also, in all applications to the Court, by petition or otherwise, b}' a married woman with respect to her separate estate, she must appl}- by her next friend." The next friend of a maiTied woman need not be a relation, but he » Wake V. Parker, 2 Ke«n, 69; England v. Downs, 1 Beav. 96; fiavis v. Pioitt, 7 Beav. 288, 890; and Bee Hope v. Fox, ubi sup. ; Richards v. MiUett, 11 W. R. 1036, M. R. » Meddowcrqft v. Campbell. 13 Beav. 184; JPlatel r. Craddock, O. P. Coop. 469, 481 ; SmilA v. Etches, 1 H. & M. 668r 9 Jur. N. S. 1228; 10 ib. 124. » See Woodward v. Woodward, 9 Jur. N. 8. 882, L. C. • Warner \. Warner, 1 Dick. 90 ; AinsUe v. Medlicott, 18 Vcs. 266 ; and makinqr licr a defendant, is an admlBston ttiat the suit relates to ber separate estate. Earl v. Ferris, 19 Beav. 67 : 1 Jur. N. 8. 6. • Brooks V. Brooks, Prec. Ch. 24. • Orifflth V. Hood, 2 Ves. 8. 462. A defendant cannot act as next friend, Payne v. lAUle, 18 Beav, 114 ; but a married woman defendant may appeal by a co-defendant as her next friend, Elliot r. hue, 7 De O. M. & G. 476 : 8 Jur. N. S. 697. "f Ld. Red. SB. Where the husband is under any of the disabilities enumerated, ante, the wife i> considered as s^Jeme sole, and may sue without the intervention of a next (Mend ; and where lie is out of the Jurisdiction, see Poslgate v. Barnes, 9 Jur. N. 8. 466 : 11 W. R. 866, V. C. 8. • Ld. Red. S8. If she is an inOint, her consent is unnecessary, Wortham v. Pemberton, IDeQ.A 8.644: 9 Jur. 291. ' • Andrews y. Cradock, Prec. Ch. 876: Gilb.Rep. 86; Cooke v. Fryer, 4 Beav. 18. I* Re Waugh, 16 Beav. 608 ; but she may apply without a next fHend, where she has obtained a pro- tection order under 20 & 21 Vic. c. 85, s.n. Bathe \. Bank qf England, A K. &, 3. Mi; Re Rttinsdon, 6 Jur. N. 8. 65, V.C.K. If a motion on behalf of a married woman be made without a next flrlend, the solicitor instructing may be ordered to pay the eo-iXn, Pearse v. Cole, 16 Jnr. 214, V.O.K. MARRIED WOMEN. 89 must bo a person of subHtance, because ho is liable to costs ; ■ and in this respect there is a material diflbrenco between the next friend of a feme covert and of an infant : for any person may file a bill in the name of an infant, but the suit of a feme covert is substantially her own suit, and her next friend is selected by her.^ In the former case, therefore, as w^e have soen,^ the Court does not require the next friend should be a person of substance, because if the friends of an infant are poor, the infant might, by such a rule, bo deprived of the opportunity of assert- ing his rights ; but in the case of a feme covert, as the object for which a next friend is required is, that he may be answerable for the costs,* the Court expects that the person she selects to fill that office should be one who can pay the costs, if it should turn out that the proceeding is ill- founded ; and, therefore, if the next friend is in insolvent circumstances, it will order the suit to be stayed until he gives security for costs. ^ Where a bill is filed by a next friend, if he bo not a person of sub- stance, the plaintiff will be required to give security for costs. The proper order in such case seems to be, to stay proceedings until the next friend bo changed, or security given." The next friend of a married woman, who is co-plaintiff with her husband, will be required to give security for rosts if it appears that he is a person of no known means, and his residence not known, though it appears that the husband has a substantial interest, and is not a mere formal party to the suit.' It is obv. JUS that cases might arise where the rule, that the next friend of &f erne covert must bo a person of substance, would be practi- cally, a denial of justice. In such cases the Court, as w© have seen,* allows her to sue, or continue a suit, without a next friend ; or to pre- sent a petition, in a case whore the Court has jurisdiction without suit." If the next friend of a married woman dies, or becomes incapable of acting, or if for any reason the plaintiff desires to remove her next friend, she may, at any time before the defe^idants have entered an appearance to the bill, (in this province " after answer,") introduce into the record the name of the new next friend, under an oixler as of course ■ Anm, 1 Atk. 6T0; Pennington v. Alvin, 1 S. & S. 904; Drinan v. Mannix, 3 Dr. & War. W Jmea v. Fawcett, 3 Phil. 9T8; Stevens v. WUUama, 1 Sim. N. S. 645 ; Wilton v. HIU, 2 De O. ! .. & G. 807-9 ; Hind v. WhUmore, 2 K. & J. 468 ; where all the caees are reviewed ; Be Wills, « Jur. N. 8. 1826; 12 W. R. 97, V.C.8. ; ElliotY, Inee, 7 De G. M. & G. 476; 3 Jur. N. 8. 697 ; «ee also Dowden v. Hook. 8 Beav. 899, 402, which mnst now be looked upon aa overruled. ^ Gamble v. Atlee, 2 De O. & S. 746 ; but see, where she is an inftnt, Wortham v. Pemberton, 1 De O. & 8. 644 : 9 Jur. 291. ^ AnU. « See Re m««, 9 Jur. N. 8, 1286: 19 W. R. 97, V.C.8. ' Smith V. Etches, 1 H. & M. 711 ; 9 Jur. N. 8. 1288; 10 lb. 134. * Lelehman v. Eastwood, 2 Cham. R. 88. ' Van WlnkU v. Chaplin, 9 Cham. R. 98. " AnU. • In re mkewtU, 3 De G. M. & O. lift; 17 Jur. 384. I i I SUITS BY PERSONS WHO ARE UNDER DISABILITV. to amend. After appearance, the same may bo done, where a now tiext ft-iend is to bo named in the place of a deceased next friend, if the appli- cation for the oi*der is made by the solicitor who acted in the suit for the deceased next friend ; but in other cases, the order to appoint a now next friend is special, and must be obtained either in Court on motion, of which notice must be given, or on a summons in Chambers, (in this province ''notice of motion,") which must be served.' Where, however, a married woman ai)plies lor leave to change hor next friend, it is in the discretion of the Court to grant or refuse the application ; and it will bo refused, where there is reason to believe that the defendant's security for costs will be thereby prejudiced ;' and if the order be made, the new next friend is usually required to give sec rity to answer the past costs, and to abide by the order of the Court as to future costs ;=» and in Payne v. Little,* the retiring next friend was re- quired to give security for the costs incurred up to the time of tlic change. Upon an application to appoint «• new next friend the Court or Judge usually requires to be satisfied of is willingness to act ; this may be evidenced by the production of his ^vritten consent. If the plaintiff neglects or refuses to obtain the order in the case of the next friend's death, the defendant may apply to the Court, by motion upon notice, for an order directing her to name a new next friend within a limited time, or in default that the bill may be dismissed with costs;* and where the next friend becomes bankrupt, an order will, in like manner, be made, staying the proceedings until a solvent next friend is appointed." When it becomes necessary to substitute a new next friend, the motion for the appointment, should be on notice, and an order taken on proBcipe is irregular. An order so taken was set aside with costs on the ground of irregularity, and without going into the question of the sol- vency of the party appointed.' Wherever a new next friend is appointed, the order appointing him must be served on the solicitors of the defendants, and be left for entry in the cause books kept by the Clerks of Eecords and Writs ; and there- upon, in all future proceedings in the cause, the name of the new next t For form of order, see Soton, 1353; and see Ikutman v. Eastman, 3 Cham. B. 183. '< * Jones V. Fawcett, 3 Phil. 378 ; and see Oreenaway v. Rotheram, 9 Sim. 88. » Lawley v. Halpm, Bnmb. 310 ; Percy v. Percy, M, R. In Cbamb. 9 Dec, 1868. For form of order see Seton, 1853. * 14 Beav. 047 : 16 Beav. 663. > Barlee v. Barlee, 1 S. & S. 100. * Wilton V. HtU. 8 De O. M. & G. 807; VOechsner v. Scott, 34 Beav. 339; see also Pennington v. Alvin, 1 S. i S. 364; DHnan v. Mannix, 3 Dr. & War. 164. ' Bennett v. Sprague, 3 Cham. R, 194. friend so ap former next If tho ne: jurisdiction, same as if tl: Upon tijin suit, is held and therefor( to pay the co If a bill hi suit, the pro( tinued witho marries, and want of an oi reversed, upo a decree mad( abatement is It has been suit, and aftei becomes unno moved ; yet t name and witJ Where a bil sonal property abatement of i^ benefit of the may have tho tinue the suit think proper t( costs already i ' Bratthwalte's Pr ' Alcock V. Alcoch ' Ottwayv. Wing, * Barlee v. Barlee, ever. Be Pugh, engaigements, { are reviewed ; ' See Trezevant v. as a spinster, a on motion by t and see I^ke v " Viscountess Cran is sued as sole, topped, and tli Pl. 60. ' Ld.Red. 60; and " And it extends to Charfestvorth, : '1 >IARItlED WOME^^. n friend so appointed will be introduced, in the place and stead of the former next friend.' ' • .... If the next friend of a married woman goes to reside out of the jurisdiction, the practice with respect to giving security for costs is the same as if the next friend had been himself the actual plaint iflF.^ Upon filing a bill in Chancery, a married woman, in respect of the Huit, is hold to have taken upon herself the liabilities of a feme sole, and therefore may be attached ;' and hor separate estate becomes liable to pay the costs incurred.* If a bill has been filed by a feme sole, anci-^he^intermarry pending the suit, the proceedings are thereby abated, and cannot properly be con- tinued without an order of revivor. ^ If, however, a female plaintiff' marries, and afterwards proceeds in the suit as a feme sole, the mere want of an order of revivor is not an error for which a decree can be reversed, upon a bill of review brought by a defendant: because, after a decree made in point of right, a matter which may be pleaded in abatement is not an error upon which to ground a bill of review." It has been determined, that if a female plaintiff marries pending a suit, and afterwards before revivor her husband dies, an order of revivor becomes unnecessary : her incapacity to prosecute the suit being re- moved ; yet the subsequent proceedings ought, however, to be in the name and witi. the description which she has acquired by the marriage.'' Where a bill has been filed by a man and his wife touching the per- sonal property of the wife, and the husband dies pending the suit, no abatement of the suit takes place, but the wife becomes entitled to the benefit of the suit by survivorship, « unless any act has been done whicli may have the effect of depriving her of that right ; and she may con- tinue the suit without an order of revivor. If, however, she does not think proper to proceed with the cause, she will not be liable to the costs already incurred : because a woman cannot be made responsible r -•■■' •■/'■■ ■■■■'. ■■■■•- ■■■- ' Braithwalte's Pr. B58. » Alcock V. Alcoch, 5 De O. & S. 671, ante. ' Ottwayy. mny, 18Slm. 90. * Barlee v. Bmiee, 1 S. & 8. 100 ; Murray v. Barke, 4 Sim. 83, 91 : 3 M. & K. 209, 219 ; see, how- ever, Re Pugh, 17 Beav. .330. As to the Uability of the wile's separate estate for her debts and engagements, Bee Johnson v. Oallagher, 7 Jur. N. S. 273, 9 W. K. 500, L. J. J., where the caecs are reviewed ; Oreenough v. Skorrock, 4 N. R. 40, L. J. J. . ; 3N. R. 699, M. R. » See Trezevant v. Brmghim, 6 W. E. 617 : Seton, 1166, 1170, M. R. Where a woman filed her bill as a spinster, and it afterwards appeared ehe had a husband living, proceedings were stayed, on motion by the defendant, till tne appointment of a next Mend, Orant v. MiUa, 29 L. T. 11 ; and see Pyke v. Uolcome, 9 Jur. 368, V. C. K. B. ; Davey v. Bennett, 3 W. R. 363, V. C. W. ° Viscountess Cranhome v. Dalmahoy, Nels. R. 86 : 1 Cli. R. 231. So at Law, if a woman sues or is sued as sole, and judgment is against her as such, though bhe was covert, she shall be es- topped, and the sheriff shall take advantage of the estoppel: 1 Salk. 810; 1 Roll. Abr. 869, pi. 60. ' Ld. Red. 60; and Oodkin v. Earl Ferrers, there referred to. ^ And it extends to interest accrued during the life of the husband, and not received : mikinson v. Charles^vorth, 10 Bcav. 324 : 11 Jur. 6«. ■<» :;. ii SUITS BY PERSONS WHO ARE UNDER DISABILITY. for any act done by her liusband during the coverture ; but if she take any Htep in the cause, Hubsequent to her husband's death, she will make herself liable to the costs Trorii the beginning. ' A ditferent rule, with the respect to the right to continue a suit in- stituted by a husband and wife, prevails when the wife dies in the life- time of her husband, from that which is acted upon when the husband dies in the lifetime of liis wife ; for in the former case, although the husband, upon the death of his wife, becomes entitled to all her choses in action, he does not require such title b}' survivorship, but in a new character, and an absolute abatement of the suit takes place ; so that to entitle himself to continue it, the husband must first clothe himself with the character of her personal representative, by taking out ad- ministration to her effects, and then obtain an order of revivor." And here it is to be observed that if, after the death of the wife, the hus- band were to die before the termination of the suit, the party to con- tinue the suit is the person to whom administration has been granted. Accoi-ding to the present practice of the Court of Probate, administra- tion is granted to the representatives of the husband, unless next of kin of the wife are the persons beneficially entitled : the former prac- tice having been otherwise. ' But, although it is in general necessary that a husband, after the death of his wife, pending a suit instituted by them for the recovery of her personal property, should, in order to entitle him to proceed with the cause, take out administration to his wife, and then obtain an order of revivor, j'et if any act has been done the effect of which would have been to deprive the wife, in case she had outlived her husband, of her right by survivorship, and to vest the property in the husband abso- lutely, the husband may, it is apprehended, continue the suit in his individual character, without taking out administration to his wife. In such case, however, it will be necessary, if such act has taken place subsequently to the institution of the suit, to bring the fact before the C'MTt by means of an amendment or a supplemental statement or bill, unless it appears upon the proceedings which have already taken place in the cause. It will be recollected that supplemental bills are abolished in this Province by order 6 of Con. G, O. This distinction renders it important to consider what the circum- stances are which will have the effect of so altering the property, as to vest the right tc the wife's personal property absolutely in the husband, and entitle him to proceed in a suit without assuming the character of her personal representative. ■ Ld. Red. 50; sec also 3 Atk. 736; Bond v. Simmons, ib. 21 ; mils v. Barlow, 11 W. R. 351, L.J.J. * For form of order, where husband, being defendant in wife^s suit, revives as her administrator, see Murray v. Newborn, Soton, 1104. The order ran be obtained on motion or petition of course. ' Wms. on Exccntors, 3G0. MAllRIEI) WOMEN. 93 Upon this Hiibject it i« to bo observed, that a mere iiitenlioii to alter the property will not have the otfect of giving the huHband the absoluto right in it; and therefore, tho mere bringin/jj an action at I^avv, or filing a bill in Equity, will no! alter the property, unless there be a judgment or decree for paymcni, to the husband alone. And it has been decided, that an appropriation by an executrix of so much of the assets of her testator as was noeessar;^ (o discharge a legacy bequeathed to a married woman, was not such a change of the property as would vest it in the husband. But it seems, that if a person indebted to a nuirried woman, or hold- injg money belonging to her, pay such money into Court, in a cause to which the husband and wife arc parties, such payment will bo con- sidered as an alteration of the property; for, as properly it could only have been paid during coverture to the husband, the circumstance of its having been paid into Court will not alter the rights of the parties, and it will be considered as a payment made to him. ' For the same reason, whore tho jewels of the Avife had been deposited in Court by the hus- band under an order, they were ccnsidered as belonging to the husband's executors, and not to the rcpresentativo of tho wife who had survived : because, having been in the possession of tho husband, even a tortious net could not divest that property, and turn it into a chose in action ;2 much less could a payment into Court under an order. And so, where a married woman, who was the committee of tho estate and perscm of her lunatic husband, was entitled to stock which was standing in the name of a trustee for her, and this stock was, by an order made in the lunacy, transferred into the name of tho Accountant-General, in tho matter of tho lunacy, and part of it was afterwards sold out and applied in payment of costs in tho lunacy, Lord Lyndhurst held, that tho mode in which the stock had been dealt with amounted to a reduction into possession by the husband : because, as payment by tho trustee to the lunatic, or to the committee would have been a reduction into possession, 80 payment into Court, to tho credit of the lunacy, was equally a re- duction into possession for tho lunatic ; and upon this ground his Lord- ship refused to grant a petition, presented by the wife after tho death of the lunatic, praying that tho stock might bo transferred to hor, as belonging to her by survivorship.*' If, however, money paid into Court bo carried, by order, to tho joint account of tho husband and wife, tho case will bo different, and tho wife will not bo deprived of her right of survivorship, in tho case of tho husband dying before ho has procured an order for the payment of it out of Court ;* and it seems, that a mere ' Packer v. Wyndhanis Prcc. Ch. 112. 5 Ibid. => In re Jenkins, 5 Susb. 183, 187. * Ibid. : and see BcUdwin v. Baldwin, G Dc G, & S. 319 ; Laprlmandaye v. Teissier, 12 Bear. 206 : 13 Jur. 1040. § r o % H SUITH BY PERHONS WHO ARE UNDER DISABILITY. pBymonl or tninsibr of monoy or ntock to (riiHtooH for tho iK'iieHt of the wife, will not give Iho huHlmnd the absolute ri/.jht to (ho money, to the excluHion of the wifo.' It aj)])curs tbrinorly to luivo boon hold, that a promissory noto jujivon t«) a wifo (luring (•(►verturo l)o(!amo tho property of tho husband abso- lutoly, as tho wifo could not aequiro property diirini^ covortui'o; and upon this j)rini'iplo, Lonl JIardwioko, in Lighibournc v. J/olyday," hold, tluit upon tho (loath of tho husband, in a suit rospootin^ a noto of this description, the suit abated ; and in Jloihjcs v. Jkvcrlcy,^ it was doler- niinod, that a noto given to ii feme covert was, upon her husband's death, to bo considered as his assets. But in Nas/i v. Mish,* Sir Thomas IMiimor, V. C, hold, that a ?»ote given to a wifo was a ehosc in action of tho wife, and survived to hor on tho death of hor liusband; and thai the eircumstanco of tho husband having rccoivod tho interest and pai-t of tho capital in his lifetime, for which ho gave a receipt, did not alter tho nature of tho property, but that tho remainder of tho money still remained a cJiose in action. In tho last case, a rociopt of part of tho money by tho husband vfiM not, as we have soon, hold snfficiont to alter tho nature of tho property in tho I'omaindor, so as to deprive tlio wifo of her right to it by survi- vorship. In general, however, if tho husband, either alone or jointly with his Avife, authorise another person to receive tho property of the wife, Avhether it bo money, legacy, or other thing, and such poi-son actually obtain it, such rociopt Avill change the Avifo's interest in the property, and bo a reduction into possession by the husband. Thus, in Dosicell V. Earle,^ Avhero an executor, with tho wife's consent, had paid a legacy, to Avhich tho Avife Avas entitled on tho death of her mother, to the husband, upon his undertaking to pay the interest to tho mother during her life, and tho Avifo having survived hor and her husband, filed a bill claiming the money against her hus^:and'8 executors, the bill Avas dismissed. The mere proof in bankmptcy, of a debt due to the Avife by tho hus- band, Avill not alter the property of the debt, and it still remains a chose in action.^ It seems, however, that an award by an arbitrator giving money to the husband, to which he was entitled in right of his wife, Avill ' Pringle v. Pringle, *» ^eav. 631 : and see Exparte Norton, 8 De 0. M. & G. 258 : 2 Jur. N. S, 479 ; see, however, Hansen v. Mitter, 14 Sim. 23, 26 : 8 Jur. 20'J, a5i ; Cuningham v. Antrobut 10 Sim. 436, 442 : 13 Jur. 28 ; Burnham v. Bennett, 2 Coll. 254 : » Jur. 888. " 2 Eq. Ca. Ab. 1, pi. 5 : 2 Mad. 135, n. 3 Bunb. 188. See Yat€8 v. Sherrington, 11 M & W. 42, and 12 M. & W. 855, as to the effect of bank- ruptcy of the husband upon a promissory note given to the wife dum sola. * 2 Mad. 138, 139. » 12 Ves. 478 ; see also Burnham v. Bennett, 2 Coll. 254 : 9 Jur. 888 ; Hansen v. Miller, 14 Sim. 22, 26 ; 8 Jar. 909, 362 ; and Cunningham v. AtUrobue, 16 Sim. 4-36, 443 : 13 Jar. 28 ; but see Pringle V. Pringle, 28 Beav. 631. • Anon, 3 Vera. 707. MARRIED WOMEN. .»* Imvo the cftoct ofttltoring the property, ami giving it to tho husband iibsohitoly.' • >- With roHpoct to tho ottect of u judgment at Law in altering the pro- perly of a wife's chose in nctim, much dependw, an we have Hoen,' upon whether tho wife in or is not named in the jiroeeedingH. If the wife be not a party (which Hho need not bo at Law, if the right accrued (o her (luring coverture,)' a judgment in an action connneneod by the husband will vent the property in him : ho that, in the event of hiH death before execution, tho wife would bo ilejirived of her right by wurvivorHhip ;♦ this, however, will not be tiiecaso if tho wife be a party: in which case, if the husband die after judgment and before execution sued (Uit, the judgment will survive to her.s , . Decrees in Equity, as wo have scon,« so far resemble judgments at Law in this respect, that until the money be ordered to be paid, or de- clared to belong to the one oi" tho other, tho rights of tho partios will remain undisturbed ; but an oi-dor for payment of a sum of money to tho husband in right of his wife, changes tho property, and vests it in tho husband.' Where, however, a decree or order has been made by tho Court, for tho payment of a sum of money to tho husband and wife, and either party dies before payment, tho money will belong to the survivor. Thus, whorj a plaintiff and his wife, brought thoir bill against an executor for a legacy bequeathed to tho wife before marriage, and a (lecree was mado tha^ tho money should bo paid to tho plaintiffs : upon u question whether tho money should go to tho wife or to tho adminis- tratrix of the husband, tho Court referred it to one of tho Judges to certify, who gave it as his opinion that a decree in Chancery for money or any other personal thing, being a judgment in Equity, was of tho like nature with, and ought to bo governed by, tho same rules as a judgment for a debt or damages at Common Law, and consequently that the interest or benefit of the decree, and tho money duo thereby, ought t<) go and bo to such of tho parties as should have tho right thereto in case it were a judgment for debt or damages at Common Law : accord- ing to which, if a judgment bo had by husband and wife, in an action brought by them for a debt duo to tho wife before marriage, and tho husband dies after tho judgment, and before execution sued, tho debt ' Oglander v. Boston, 1 Vern. 396. ' Ante. ' Md. * Oglander v. Boston, ubt sup. » Oarforth v. Bradley, 2 Vea. S. 676. ' Ante. ^ Heygate v. Annesley, 3 Bro. C. C. 86 643. i P I ! ; and eee Ttdd v. Lister, 3 De G. M. & G. 867, 871 ; 18 Jar. 96 81T1T8 BY PER80NR WHO ARE UNDER DI8ABILITY. duo on tho judgment belongs i() tho wife, and hHo may huo cxoi'ution upon the judgment, and not tho oxoeutor or adminiHtrutor of the bus band.' Upon tbo name principle, in Forbes v. Phipps,^ whore a docroc wa« made that ono-Hixth of tho residue to which the wife was entitlnl Hhould bo paid to her and lior huHband, and tho wife died before the money Avaw received, it was determined by Loi-d Northington that tln> husband was entitled to the money, not as administrator to the wife, but as survivor under tho decree. With respect to the effect of an assignment by the husband of his wife's chose in action, ujion her rightof survivoi'ship, it has been for sonic time settled, that whore the citose in action, is not capable of immediate reduction into possession, as whore it is in reversion or expectancy, an assignment of it will not bar tho right which tho wife would otherwise have had to possess it, in the event o'her surviving her husband, unless it is actually reduced into possession l»oforo his death. And where a prior life interest is assigned to the wife, there will bo no equitable merger, so as to enable the husband and wife to deal with tho reversion, and bar her right of survivorshi j). " It appears formerly to have been considered that, in this rcspeet, there existed a difference between legal and equitable choses in action^ or, to speak more correctly, between cJioses in action, and equitublo interests in the nature of ckoses in action. With respect to the latter it appears to have been thought, that an assignment of them by the hus- band would, in certain cases, without any reduction into possession before his death, have tho effect of defeating tho wife's right to them by survivorship ; and attempts have been made to establish distinctions in this respect between assignments for valuable consideration, and | assignments without consideration or by operation of law ; the former having been considered as barring the right of the surviving wife, and I the latter as not having that effect. The decisions, however, of Sir Thomas Plumer, in Homsby v. Lee,* and Purdew v. Jackson,' have re- moved all doubts upon this subject; and have shown, that no suchj distinction as that supposed between legal and equitable choses in action, or between assignments of the latter for valuable consideration, and! voluntary or general assignments, exists. In tho latter case. Sir Thomas Plumer, after long argument, and a diligent and careful | investigation of all the cases which had occun*ed upon the i)oint, -, 2 P. Wms. 490. \ » Nanney v. Martin, 1 Ch. Rep. 834 ; Coitpin v. - 3 1 Eden, 602. 3 Whittle V. HenrUng^ Phil. 781, 785 : 12 Jur. 1079 ; ib. 298 : 11 Beav. 222, overruUnjf Creed v. Perr^ I 14 Sim. 693, and HaU v. Hugonin, ib. 695 ; 10 Jur. 940; and eee Bitliopp v. (^ebrook, 11 Jar. 793, V.C.E. ; iyancA*^^ V. iSHacoe, 22 Beav. 496. ' * 2 Mad. 16; see also Hutchinga v. Smith, 9 Sim. 187 : 2 Jur. 281. • 1 Rubs. 1, 94, 42. 1 MAtlRtMD WOMEV. «l exprossod his opinion to bo, <*that all asHlgnmonts mndo by tho husband of tho wifo'H outstanding personal chattel which is not or cannot be then reduced into possession, whether tho assignment be in bankruptcy or under the Insolvent Act, or to trustees for tho payment of debts, or to a purchaser for a valuable consideration, pass only the interest which tho husband has, subject to tho wife's le^al right by survivorship." ' It will have been observed, that the rule, as laid down by Sir Thomas Plumer, is confined to such outstanding personal chattels of the wife as are not, or cannot, bo reduced into possession ; from whence an opinion ttt one time prevailed, that the rule did not apply to assignments for valuable consideration of such cfioses in action as at the time of the assignment were capable of reduction into possession, or as became reducible into possession before the death of tho husband. This opinion bail the high authority of Loi-d Lyndhui st, who, inJIonner v. Morton," thus explained the principle: — "Equity considers the assignment by tho husband as amounting to an a,p'»*ooment that 'ic will rediico tho property into possession ; it likewit. considers ^vuat a party agrees to do IS actually done ; and therefore, when th husband has the power of reducing the property into possession, his assignment of the chose in action of the wife will be regarded as a reduction of it into possession." It appears, however, from later cases, that the dist^'nction which has been thus pointed out, between the efl'ect of an assignment for ^ alual'Ie consideration by the husband, upon a cJu)se in action which is capable of being reduced into possession, and one which is not, can no longer bo relied upon.' This point came before Sir J. L. Knight Bruce, V. C.^ in Ashby V. Ashby,* who, after stating that ho agreed in tho opinion ox- pressed in the Jast-mentioned case of Ellison v. Elwin, decided, that an ! assignment by a husband for valuable consideration of a wife's chose in action, which had fallen into his power during his life, but had not been in fact reduced into possession by him, did not prevent the right to the I chose in action from surviving to the wife. In the case, moreover, of assignments by act of law, no distinction [exists between assignments of chases in action capable of immediate reduction into possession, and those which are not so. Thus, in Pierce V. Thomely,^ where a married woman had a vested interest in possession I in a legacy, and her husband became bankrupt and died, it Avas decided ' 1 Russ. 70; see also ffonmr v. Morion, 8 Buss. 65 ; Watson v. Dennis, ib. 90 ; Sta~nper v. Barker, 5 Mad. 167, 164. USU8S.68. * EUiion T. Mwln, 13 Sim. 309, 815 ; S. 0. turn. BHwyn v. WilUams, 7 Jnr. 887. * 1 Coll. 658: 8 Jur. 1159; see also Box v. Jackson, Dm. 43, 83: 2 Con. & L. 605; X« Vatseur V. Scratton, 14 Sim. 116; Miehelmor« v. Mudge, 2 Oiff 183. ' 3 Sim. 167, 176 ; and see Oayner v. Wilkinaon, 2 Diclc. 491 : 1 Bro. C. C. 60, n ; MUfard v. Mi(ford, fl Ves. 87, 95, 100. i ■ i 98 SUITS BY PERSONS WHO ABE UNDER DISABILITY. that the widow, and not the assigaee, was entitled to the monej'- : because the assignment in bankruptcy could not pass to ti.o assignee a larger right, or better title, than the husband himself had, which was a right to reduce the legacy into possession, but which was not done in his lifetime. Of course, the assignment under bankruptcy passes the whole interest of the husband la the wife's chose in action, at the time of the bankruptcy.' It follows, therefore, that an assignment by the husband of his wife's equitable chose in action, will neither have the, effect of depriving the wife of her right to it in the event of her surviving her husband, nor of depriving her of her equitable right to a settlement out of it, should any application for that purpose be made by her during the lifetime of her husband. 3 And even the wife's concurrence in the assignment by her husband during coverture, will not have the effect of rendering such assignment valid against her claim by sui'vivorship, in cases where an assignment by her husband alone would not have had that conse- quence. » Where also, a feme covert is an infant, the circumstance of her father being party to the deed will not alter the interest of the wife.< With respect to the effect of a release by the husband, in. depriving his wife of her right by survivorship to her choses in action, not reduced into possession during the coverture, it appears that he can release debts due to her before marriage; legacies absolutely given to her;* and interests accruing to her under the Statutes of Distributions, and the like ; and that these acts might be done by him, although he and his wife were divorced a mensa et thoro, because the marriage still subsisted/ In the case of Hore v. Becher,"^ a single woman being entitled to an annuity securec' by bond, married ; her husband executed a release of | the annuity, and died, leaving his wife surviving ; it turned out that j the release had been executed under a mistake, and was inoperative, so that it was not necessary to decide upon its effect on the wife's right by survivorship. Sir Lancelot Shadwell, V. C, however, obsei-ved, "If a man gives a bond, or a promissory note, to secure an annuity to a single woman, and she afterwards marries, her husband may release the bond | or note ; and if ho releases the security, there is an end to the annuity." » Bipky V. Woods, 8 Sim. 165. « Ante. i > See Re WhitUnghum, 10 Jnr. N. S. 818 : 12 W. R. 775, V. 0. W.. as to effect of protection order, I in defeating an aBBignment of reverslouary interest which fell into possession aacr tueordc;| had been obtained. « Stamper v. Barker. 6 Mad. 167, 164. • Glib. Kq. B. 88 ; 9 Roll Rep. 184 ; 1 Brteht, H. & W. 73 ; Sir L. Shadwell, V. C, held, however, ii | the case of Harrison v. Andrews, 13 Sim. 596, that a receipt was insulnclent. * Stephens t. Totty, Noy. 46 ; Cro. Elii. 008 ; but this cannot be done after a dl ssolution of marriage, I nor after a judicial reparation or protection order : Wdls v. Matbon, 81 B«av. 48 : 8 Jur. N. ^ 349 ; Heath v. Lewis, 10 Jur. N. S. 1098 : 13 W. R. 198, V. C. S. ' 1 13 Sim. 466 : 6 Jur. 93. Where reversion ment, to the assigi annuity, d after his thereof CO It is to interests o case of the important by a husba The into which a wi title; bein^ alienation c terms for y survivorshi] he sui-vive ] the wife, bu years, and c ment withoi for a term o expired, the These rules ( is only equit was assignee upon a quest or to the wif term, as wel need not tak case, if a mar his wife, this doctrine, as fi ' Bogfers v. Acas ^ StW'v.Bveritt V/: * C. C. Lister, 8 De ( ' On this subject, ' In a marginal having marrl< ' P(ae V. mtcheU ' Earl qr Bath y. ' PaU V. mtcheU. 18; 90liB. Ca. ,so jhtby l"Ifa (single bond] luity/ [jnordM.I tUeorderl yever, ml narrlageJ lur.N.S MARRIED WOMEN. 99 Where, however, the interest of the wife in the chose in action is reversionary, the release of the husbajid is as inoperative as his assign- ment, to affect the wife's right by survivorship.' It seems also, that the assignment or release by the husband during coverture of his wife's annuity, does not prevent her right by survivorship to payments accruing after his death ; it being considered that each successive payment thereof constitutes a separate reversionary interest.^ It is to be observed, that the rules above laid down apply to those interests of the wife which are of a strictly personal nature. In the case of those interests which fall under the description of chattels real, important distinctions exist with respect to the eifect of an assignment by a husband, in barring his wife of her right in them by survivorship.' The interest given by the law to the husband in the chattels real which a wife has, or may be possessed of during marriage, is a qualified title ; being merely an interest in right of his wife, with a power of alienation during coverture ;* so that, if he do not dispose of his wife's terms for years or other chattels real in his lifetime, her right b}- survivorship will not be defeated; if, however, he do not alien them, and he suiwive his wife, the law gives them to him : not as I'epresenting the wife, but as a marital right. Thus, if a feme covert has a term for years, and dies, the lease is the husband's, and he may maintain eject- ment without taking out letters of administration ',' and if a wife, tenant for a term of years of a copyhold, marries and dies before the term is expired, the husband shall continue without any new admisson or fine." These rules equally apply where the interest of the wife in the chattel is only equitable ; thus, where a term of years, determinable upon lives, was assigned to trustees in trust for a woman who married and died : upon a question whether this trust went to the husband, who survived, or to the wife's administrator, it was held clearly, that the trust of a term, as well as the term itself, survived to the husband, and that he need not take out administration ;' and so, as we have seen in the last case, if a man assign over the trust of a term which he has in right of his wife, this shall prevail against the wife, though she survives." This doctrine, as far as regards the trust of a term assigned to a trustee for ' Rogers v. Acaster^ 14 Beav. 445. » Stiff ^ V. Everitt, 1 M. & C. 37, 41 ; Thompson v. ButUr, Moore's Eep. 5SJ2 ; Whitmarsh v. Bobertson, r r. & C. C. 0. 716 : 8 Jur. 921 ; WhitUe v. Henning, 2 Phil. 731 : IS Jur. 1079 ; and ico Tidd v. Lister, 8 De G. M. & G. 867. 874 : 18 Jur. 643. ' On this Bubject, see 1 Bright, H. & W. 94—111. * In a marginal abstract, 9 Mod. 104, it la aaid that a wife being possessed of a term of years, and having married an alien, the n">rriage is not a gift in law of thu term. ' Pale T. MtcheU, 2 £q. Ca. Ab. Ibo. pi. 4 n. (a). ' Earl qf Bath v. Almey, 1 Dick. 263, arg. ^ Pale T. mteheUt uM tvp. " Packer v. ITynifAam, Prec. Ch. 413, 418; Sanders v. Page, 3 Ch, Rep. 223: Pitt v. Hunt, 1 Vero 18 ; S Olia. Ca. 73 ; Ponne v. Hart, 2 R. & M. 300, 304. i ■ # ■-« o ft. 100 SUITS BY PERSONS WHO ARE UNDER DISABILITY. a wife before marriage, appears to have been first laid down by the House of Lords, on appeal in Sir E. Turnei''s case, ' Avliich, from the report of the subsequent casQ of Pitt v. Hunty appears to have excited the surprise of Lord Chancellor Nottingham ; who, however, after some hesitation, said he must be concluded by the Lords' judgment, and de- creed accordingly.^ The gi'ound of the decmion in Sir E. Tumefs case appears to have been this : that as the husband can at law dispose of a term for years, so he may dispose of the trust of a term in Equity, because the same rule of property must prevail in Equity as well .as atLaAv;' and this has ever since been considered as the law of the Court.* In Walter v. Saunders,'^ a distinction was attempted to be drawn, in argument, between a term in trust to raise money for a woman, and a trust of the term itself for the woman ; but the Master of the Eolls determined, that no such distinction could be taken." It has also been helvi, that if the wife has a judgment, and it is extended upon an elegit, the husband may assign it without* consideration. So, if a judgment be given in trust for a feme sole who marries, and, by consent of her trustees, is in possession of the land extended, the husband may assign over the extended intei'est; and by the same reason, if she has a decree to hold and enjoy lands until a debt due to her is paid, and she is in possession of the land under this decree and marries, the husband may assign it without any consideration, for it is in the nature of an extent.' A husband maj'', as wo have seen, assign his wife's mortgage for a term; but if the mortgage be in fee, then it seems clear that the Avife's right to the debt by survivorship is not affected by any assignment made by the husband, or by his banlaniptcy : unless the debt is reduced into possession in his lifetime.* It is an established principle, in deciding upon the effect of mortgages, whether of the estate of the wife, or the estate of the husband, that if the wife joins in the conveyance, either because the estate belongs to her, or because she has a charge by way of jointure or dower out of the estate, and there is a more reservation, in the proviso for redemption of the mortgage, which would carry the estate from the person who was > lVern.7. « 1 Vom. 18 ; 2 Cha. Ca. 73. » Per Lord Hardwlcke, in Jeweon v. Moidaon, S Atk. 417, 421. < Bates V. Dandy, 8 Atk. 207 ; more fully reported, 3 Rusb. 72, n. ; Incledon v. Norlkcote, 8 Atk. 480. » 1 Kq. Ca. Ab. 68, pi. B. • See alBO Packer v. Wyndham, Prec. Ch. 412,418. "• Lmd Carteret v. PaschaU, 8 P. Wms. 200. • Burnett v. Kinmuton, 9 Vern. 401 ; Mlford v. Miiford, 9 Ves. 87, 9B; Packer v. Wyndham, vU sup. ; Purdew v. Jackson, 1 Rush. 68; Uonner v. Morton. 3 Rum. 66; ElUison v. Elwin, 18 Sim. am; S. C. nom. ; Elwyn v. WiUiams, 7 Jur. 837 ; overruling Bosvil v. Brander, 1 P. Wms. 458 ; Bates V. Dandy, uM sup. owner al for the b to the ci] It is tc to assign of his wij ibr a wift doubt he or term o raised ou< which wo executors purpose b( go to the ] the inherii of the trut would not In an an that a feme alimony al husband fr possessed 1: injunction, marriage, a the same jx as lie woul( upon couns the cause m the bardshi the marria^ circumstanc nor tho wife was merely with by the it does not a cause. ' Lord liedcsda V. Burah, S » Sir K Tnrne 18, where L the assign m ' fWcAeVcase, * Best V. Statnn ■' 9 Mod. 43. ALiRRIED WOMEN. 101 owner at tho time of executing the mortgago : there is a resulting trust for tho benefit of the wife, or for tho benefit of tho husband, according to the circumstances of tho caije.' It is to be observed, that although the husband is considered entitled to assign the trust of a term or other real chattel created for the benefit of his wife, yet, where a term or chattel real has been assigned in trust for a wife, with the privity or consent of her husband, then without doubt he cannot dispose of it." A fortiori he may not, if he make a lease or term of years for the benefit of his wife.^ And where a term was raised out of tho wife's inheritance, and vester^ :n trustees for purposes which were satisfied, and subject thereto for the benefit of the wife, her executors, administrators, and assigns, it was held, that the particular purpose being served for which the term was raised, tho trust did not go to the husband, who was the administrator of tho wife, but followed the inheritance.* From this it may bo inferred, that the assignment of the trust of such a term by the husband in the lifetime of the wife, would not effect tho wife's interest in it by survivorship. In an anonymous case which octurs in OMotlcrn Reports,* it appears that ixfeme covert, but who had been divorced a mcnsa ct thoro, and had alimony allowed to support her, applied to tho Court to restrain her husband from jiroceeding to sell a term of years of yv^hich she was possessed before her marriage, and that the Court at fii'st refused the injunction, because the separation a mensd et thoro, did not destroy the marriage, and during the timo the mamago continued, the husband had the same power to dispose of the term which he had in right of his wife, as ho would have had if it had been in his own right ; but afterwai'ds, upon counsel still pressing for an injunction, in order that the merits of tho cause might come before tho Court, and insisting very much upon the hardship of tho case, tho Court granted it, on tho groui/d that, though the marriage continues notwithstanding tho divorce, yet, under such circumstances, the husband does nothing in his capacity of husband, nor tho wife in that of wife. It is to bo remarked, however, that this was merely an interlocutory order, to \ revent the toi-m being parted with by the husband till the question should bo properly discussed, and it does not appear that any further proceedings were over had in the cause. ' Lord Redcsdale, in Jackson v. Innes, 1 Bligh, 126, cited by Sir .1. L. Knight Bmce, V. C, in Clark V. Burgh, 8 Coll. 287 : 9 Jur. 679; and see 3 De O. M. & 0. 15. ' Sir E. Turner's case, 1 Vem. 7 ; see also Bosvil v. Brander, 1 P. Wms. 458 ; Pitt v. Hunt, 1 Vera. 18, where Lord Nottingham, liowever, said, that to prevent a husband, he must be a party to the assignment. ' Wiche's case, Scacc. Pasc. 8 Jac, cited 1 Vem, 7, Ed. Itaitbby, noUs. * Best V. Stamnfordt 2 Freem. 288 ; 8 Vem. 580 ; Prec. Ch. 852. •"> 9 Mod. 43. 102 SUITS BY PERSONS WHO ARE UNDER DISABILITY. It seems, that an absolute transfer or assignment by the husband of his wife's term of years, or other chattel real, is not requisite to deprive the wife of her right by survivorship ; but that, since an agreement to do an act is considered in equity the same as if the act were done, so, if the husband agree or covenant to dispose of his wife's term of years, such covenant will be enforced, although he dies in her lifetime.' The power which the law gives the husband to alien the whole interest of his wife in her chattels real, necessarily authorizes him to dispose of it in part ; if, therefore, the husband be possessed of a term of years in right of his wife or jointly with her, and. demise it for a less term, reserving rent, and dies, such demise or underlease will be good against her, although she survive him : but the residue of the original term will belong to her, as undisposed of by her husband.' So also, if the husband alien the whole of the term of which he is possessed in right of his wife, upon condition that the grantee pay a Bum of money to his executors, and then dies, and the condition is broken, upon which his executors enter upon the lands, this disposition by the husband will be sufficient to bar the wife of her interest in the term : it having been wholly disposed of by him during his life, and vested in the grantee.' It seems, however, that if the condition had been so framQa tKat it /plight have been broken in the husband's life- time, and he had entered for the breach, and had then died before his wife, without making any disposition of the term, she would be entitled to it by survivorship : becaiiso the husband, by re-entry for a breach of the condition, was returned t<^ 'the same right and interest in the term as he was possessed of at the time of the grant, viz., in right of his wife.* In cases of assignments by the husband of his wife's chattels real, the wife will be ec^ally barred of her survivorship, whether the assignment be for a valuable, or without any consideration ;* but it is to bo observed, that there is a great distinction where the disposition is of the whole or part of the property, and where it is only a collateral grant of some- thing out of it ; for although, if a husband pledge a term of years of his wife for a debt, and either assign or agree to assign all or part of such term to the creditor, the transaction will bind the wife,« yet, if the transaction be collateral to, and do not change the property in the term, as in the grant of a rent out of it, then, if the wife survive the husband, her right being paramount, and her interest in the chattel not having > Bates V. Bandy, 2 Atk. 907 : 3 Raes. 78, n. ; see also Steed v. Cragh, 9 Mod. 43 ; Shannon v. Brad- street, 1 Hch. & Lef. S3. a Sfftn's case, Cro. Eliz. 33 ; Co. Litt. 46 b. » Co. Litt. 46 b. « See Watts v. Thomas, ? P. Wms. 964, 366. » Lord Carteret v. PaschcU, 3 P. Wms. 197, 900 ; Mi(ford v. Milord, 9 Vee. 99. * Bates T. Dandy, 3 Atk. 907 : 8 Rubs. 79, n. been displt rent. • Moreover rcversiionar as that it ca Jn regard wife, to ren( arrears of i opinion in tl to the mann( husband alor a rent, that i iub-dcniiso c is presumed, to the arrcar of the last c surviving wi: death, althouj rent were resi demise and r wife's origina solo and absol rent had been their interests j entire, it is coi be entitled to to the arrears in action, and and wife in the liiewife.f It the choses in a I withc'Ut any co j therefore, an Idrmiciled in j legacy is the pi j widow. When I to the widow, ii [was held to be ^ ' Co. LIU. 184 b. ' Ihi6erley v. Day, l ' 1 Roll, Abr. 844, 84 *4Vin.Abr.ll7,D. ' letUe V. BaiUie, 9 ' ALVRRIED WOMEN. 103 been displaced, she will bo entitled to the term, discharged from the rent. ' Moreover, it has been decided, that the husband cannot assign a reversionary interest of his wife's in chattels real, of such a description as that it cannot by possibility vest during the coverture.^ In regard to the right of the husband's executors, or his surviving wife, to rent reserved upon under-leases of her chattels real, and to the arrears of rent due at the husband's death, there is a difference of opinion in the books, which may probably be reconciled by attending to the manner in which the rents were reserved. Accordingly, if the husband alone grant an under-lease of his wife's term of years, reserving a rent, that would be a good demise, and bind the wife as long as the sub-demise continued ; the husband's executors, therefore, would, as it is presumed, be entitled not only to the subsequent accruing rents, but to the arrears due at his death.' And it would seem, that the principle of the last case would entitle the executors, to the exclusion of the surviving wife, to subsequent rents and all arrears at the husband's death, although the wife was a party to the under-lease, provided the rent were reserved to the husband only : because the effect of the sub- demise and reservation was an absolute disposition, pro tanto, of the wife's original term, which she could not avoid, and the rent was the solo and absolute property of the husband. But if, in the last case, the rent had been reserved by the husband to himself and wife, then, as their interests in the term granted and the rent reserved were joint and entire, it is conceived that the wife, upon surviving her husband, would be entitled to the future rents, and that she would be equally entitled to the arrears of rent at her husband's death : because they remaining I in action, and being due in respect of the joint interest of the husband and wife in the term, would, with their principal the term, survive to 1 the wife.* It may lastly be remarked that, by the law of Scotland, the ckoses in action of the wife become the property of the hXisband, without any condition on his part of reducing them into possession. If, therefore, an English testator leaves a legacy to a married woman domiciled in Scotland, and her husband dies before payment, the legacy is the property of the husband's representatives, and not of the widow. Where, however, in such a case, the executors paid the legacy to the widow, in ignorance of the law of Scotland, the payment to her [was held to be good.* ' Co. Lltt. 184 b. ' D-uberley v. Day, 16 Beav. 33 : 16 Jur. 681. ' 1 RoU. Abr. 344, 34S. ; Co. Lltt. 46 b. ; 3 Lev. 100 ; 8 Kob. 30O; 1 Bright H. & W. 43-47. MVin.Abr.in.D. a. ' LetUe V. BaOlie, 3 Y. & C. 0. C. 91, 96 : 7 Jur 77. ■ s * n * ^■« ■ % 104 PERSONS A0AIN8T WHOM A SUIT MAY BE INSTITUTED. CHAPTEE IV. PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. "' Section I. — Generally. Having pointed out the persons who are capable of instituting suits in Equity, and considered the peculiarities of practice applicable to each description of parties complainant, wo come now to the considera- tion of the persons against whom suits may be commenced and carried on, and the practice of the Court as applicable to them. A bill in Equity may be exhibited against all bodies politic and corporate, and all other persons whatsoever, who are in any way inter- ested in the subject-matter in litigation, except only the Sovereign, the Queen-consort, and the Heir-apparent ; wb >so prerogatives prevent their being sued in their own names, though .hey may in certain cases, as wo shall see presently, be sued by their respective Attornies or Solicitors-General. But although all persons are subject to bo sued in Equity, there are some individuals whose rights and interests are so mixed up and blended with those of others, that a bill cannot be brought against them, unless such other persons are joined with them as co-defendants ; and there are other individuals who, although their interests are distinct and independent, so that they may be sued alone upon the record, are yet incapable, from the want of maturity or weakness of their intelleciual faculties, of conducting their own defence, and must, therefore, apply j for and'obtain the assistance of others to do it oi\ their behalf. In the first class are included married women, • ' '^e husbands must 1 be joined with them as co-defendants upon tljo .»., ' ; unless they are plaintifts or exiles, or have abjured the real: 1 p. Wmg. 445. * Ibid, 446 ; and see Stx.y Fowler, Bumb. 88. s 1 Eden, 177, 181. * 1 Yes. S. 444. « 3 Soh. A Lef. 607. \ * Ibid., 617. ^ 3 Yes. 424, 436. . « 10 Yes. 863, 854. * Burke v. Brown, 8 Atk. 399. >• Jbid. >> PcUerton v. B&wet, 4 Grant 170. See as to remedy of the subiect against the Crown, Hitter v. Attorney- General, 9 Grant, 668 ; and Norwich v. Attorney- ibiect agal General, i Grant 668. ■*! ■ •"? THE QUEEN'm ATTORNEY-OENERAh. 107 The necessity of making the Attorney General a party, Is not confined to those cases in which the interests of the Crown in its own ri^ht are concerned, but it extends also to cases in which the Queen is considered as the protector of the rights of others. Thus, as wo have seen,' the jtmnteeofa chose in action from the Crown may eitlier institute i)rocced- inf^s in the name of the Attorney-General, or in his own name, making the Attorney-General a defendant to the suit; and so, in suits in which tho Crown may be interested in its character of prot* ctor of the rights of others, the Attorney -General should bo made a p '/ty. Thus, the Attorney-General is a necessary party to all suits whore the subject- matter is, either wholly or in part, money appropriated for general charitable purposes; because tho Queen, o» parens patricv, is supposed to superintend the administration of aU charities, and acts in this behalf by her Attorney-General. Where, however, a legacy is given to a charity already established, as where it is given to tho trustees of a I particular foundation, or to the treasurer or other officer of some chari- table institution, to become a part of the general fund of such foundation or institution, tho Attorney-General need not bo a party, because ho can have no interference with the distribution of their general fimds.' And it seems that there is a distinction where trustees of the charity aro appointed by tho donor, and where no trustees are appointed but there is a devise immediately to charitable uses ; in tho latter case, there can be no decree unless tho Attorney-General be made a party, but it is lothorwiso where tnistees are appointed by the donor.' Therefore, Iwhere a bill was filed to establish a will, and to perform several trusts, Isomo of them relating to charities in which some of the trustees were Iplaintiffs, and other trustees and several of tho cestui que trusts were Idcfendants, an objection, because the Attorney-General was not made la defendant, was overruled : it being considered, that some of tho Itrustces of the charity* being defendants, there might be a decree to Icompol tho execution of trusts relating to these charities.* In that case, lit was said by Lord Macclesfield, that if there should bo any collusion jbctwoon tho parties relating to the charity, the Attorney-General might, notwithstanding a decree, bring an information to establish tho charity pnd set aside the decree, and that he might do the same, though he were (lado a defendant, in case of collusion between the parties. But it seems [that the mere circumstance of the Attorney-General not having been lado a party to the proceeding, will not be a sufficient ground to sustain i i 'Ante, ' WelMovea v. Jom, 1 S. & S. 40, 48; Chittv v. Parker, 4 Bro. C. C. 88. • 4 Vin. BOO, PI. 11, notis; 8 Eq. Ca. Ab. 167, pi. 18, n. * It appears from s sabeequent part of Uie case Uiat one of tiie trastees of the charity vas abroad. ' MonUv. Lawton, 4 Vin. 600, Fl. 11 ; 9 Eq. Ca. Ab. 167, pi. 13. 108 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. an inforraution for tho purpose of Hotting iMido a docreo nindo in a former Huit, unless the decree is impeached upon other grounds.* When it is said that, in cases wliero a legacy is given to the trustccR of a charity already in existence, for the general purposes of the charity, it will not be necessary, in a suit concerning it, to make the Attorney General a defendant, the rule must bo understood to apply only to those charities which are of a permanent nature, and whose objects are defined; for it has been determined, that where legacies are given to the officers of a charitable institution which is not of a i)crmanom nature, or whose objects are not defined, it is necessary to nuike the Attorney-General a party to a suit relating to them. Thus, in the case of Wcllheloved v. Jones,' where a legacy was given to the officers, for the time being, of an academical institution, established at York for the education of dissenting ministers, which officers, with the addition of j such other pei'sons as they should choose (in case they should think an additional number of trustees ne( ossary), were to stand possessed of the money, upon trust to apply the interest and dividends for the augmentation of the salaries of dissenting ministers, a i)referenco being given to those who should have been students in the York institution, and in case such institution should cease, then upon trust that tht! persons in whose names the fund should be invested, should transfer] the same to the principal officers for the time being of such other in- stitution as should succeed the same, or bo established upon similar I principles : Sir John Leach, V.C., upon a bill filed by the officers of the institution, praying to have the fund transferred to them, to which the Attorney-General was no* party, ordered the case to stand over, with leave to amend by making the Attorney-General a party: his Honour observing, that the Court could not permit the legacy to come into the hands of the plaintiffs, who happened to fill particular offices in the society, but would take care to secui'e the objects of the testator by the| creation of a proper and permanent trust, and upon hearing the cause, would send it to the Master for that purpose ; and that it would be one of the duties of the Attorney-General to attend the Master upon the subject. And even in cases where a legacy is given to the trustees of j a charity already in existence, the trusts of which are of a permanentf and definite nature, unless it appears, from the terms of the bequest, that the trusts upon which the legacy is given are identical with thosel upon which the general funds of the corporation are held, it is necossaryj to make the Attorney-General a party. ^ I Attorney -Genertil v. Warren^ 2 Swanst. S91, 311. > 1 S. & S. 40, 43. 3 Ooriwation qf the Sons tif the Clergy v. ifiwe, 9 Sim. 610, 613. A bill was religious pur question arof* been made a d The Attorne;5 corporator of members ' of f trust by the e It is to be party only wli that where it bring him befc society, enterc such of the n Lord IIardwi( wasnotapartj When the At inhisdiscretio the usual cours tliat he was a of the Crown, to have theroi rights and int which the intt require it, a fu General,'' in wl question might and it would, tl to urge any m properly subm Erringtm v. T) the defendants upon which the and the injuncti and at the san ' Img V. mimotte ' BffuUony. Church ' Anm. S Atk. 277. * i>avi8onv. Attorn. ' See Bunb. 808 ; 1 ] ' Cokbrooke v. Atto '7Pri.l. ' See also Deare v. , ' Bunb. 803. THE QUEEK'fl ATTORNEY-GENERAL. lOD A bill was filed to administer an estate, and declare a legacy for religious purposes void. The trustees were made defendants, but a question arose whether the Attorney-General ought not also to have been made a defendant, Estcn V.C. held that he was a necessary party. ' The Attorney-General is not a necessary party to a bill filed by a corporator of the Church Society on behalf of himself, and all others members of the vSociety, to correct and prevent alleged breaches of trust by the corporation." It is to be observed also, that the Attorney-General is a necessary party only where the charity 's in the nature of a general charity ; and that where it is merely a pri /ate charity, it will not be necessary to bring him before the Court. Thus, were the suit related to a voluntary society, entered into for the purpose of providing a weekly payment to such of the members as should become necessitous, and their widows. Lord Ilardwicko overruled the objection that the Attorney-General was not a party : because it was in the nature only of a private charity. ' When the Attorney-General is made a defendant to a suit, it is entirely in his discretion whether ho will put in a full answer or not.* Formerly, the usual course was for him to put in a general answer, stating merely that he was a stranger to the matters in question, and that, on behalf of the Crown, ho claimed such rights and interests as it should appear to have therein, and prayed that the Court would take care of such rights and interests of the Crown in the same.* In cases, however, in which the interests of the Crown, or the purposes of public justice require it, a full answer will be put in:^ asjn Craufurd v. Tlie Attorney- Gmeral,'' in which case the Lords of the Treasury had directed that the question might be brought before the consideration of a Court of Justice ; and it would, therefore, have been unbecoming in the Attorney-General to lU'ge any matter of form which might prevent the case from being properly submitted to the Court before which it was brought.* In Errbvjtmi v. The Attorney-General,^ the Attorney-General, being one of the defendants to a bill of interpleader, put in the usual general answer, upon which the other defendants moved that the bill might be dismissed, and the injunction dissolved J the Attorney-General opposed the motion, and at the same time prayed that ho might bo at liberty to withdraw ' I/mg V. "WUmotte 2 Cham. R. 87. ' Boultonv. Church Society, 14 Grant 123. . ^ . .. ' ^non. 8 Atk. 277. * Davison v. Attorney- General, 6 Pri. 898, n. ' See Bunb. 803 ; 1 Hare, 223 ^ • Colebrooke v. Attorney- General, 7 Pri. 192. '7Pri.l. « See also Deare v. Attorney- General, 1 Y. & 0. Ex. 197. « BuQb. 803. ■.*;- f -i- no PERSONS AGAINST WHOM A SUIT MAY BS INSTITUTED. his gonoral answer, and put in another, insisting upon the particular right of the Crown to the money in question: which was granted. The answer of the Attorney-General is put in without oath, but is usually signed by him. And it seems that such an answer is not liable to be excepted to, even though it be to a cross bill filed by the defendant in an information, for the purpose of obtaining a discovery of matters alleged to be material to his defence to the information. We have, however, seen before that whore a cross bill is filed against the Attorney- General, praying relief as well as discovery, ho cannot protect himself from answeHng by means of a demurrer : ' but whether he could, by sucii means, protect himself from answering a mere bill of discovery, does not appear to have been decided ; it is most probable that ho might, and that the Court would, in such a case, if discovery were wanted from the Crown, leave the party to prefer his Petition of Eight.' The right of the Attorney-General to receive his costs, where he is made a defendant to a suit, has been before noticed.' During the vacancy of the office of Attorney-General, the Solicitor- General may be made a defendant to support the interests of the Crown ;♦ and whore there has been an information by the Attorney-General, the object of which has been to set up a general claim on behalf of the Crown, at variance with the interests of a public charity, the Solicitor- General has been made defendant, for the purpose of supporting the interests of such charity against the general claim of the Attorney- General. On the other hand, where an information was filed by tlic Attorney-General, claiming certain property for charitable purposes, inconsistent with the rights of property of the Crown, the Solicitor- General was made a defendant, as the officer on whom the representation of such rights had devolved.' The means of obtaining the appearance or answer of the Attorney- General, will be found in the subsequent Chapters upon Process. Section III. — Oovemments of Foreign States and Ambassadors. It has before been stated, that the Sovereign of a foreign country | recognized by this Government, may sue either at Law or in Equity, in respect of matters not partaking of a political character;* and it has 1 Dean v. Attomey-Oenerai, vM tup. : ante. • Deare v. Attorney- OenercU, vbi mp. » Ante. * Ld. Red. 108. ' * Attorney-General v. Dean and Canons qf Windsor, 24 Bmt. 6^9 : 4 Jar. N. 8. 818; 8 H. L. Ci. I 869 : 6 J»ir . N. 8. 833 ; and see Attorney- General v. Mayor of Bristol, 2 J. &jW. 312 ; Attorney General v. Ironmongers^ Companyy% M. A K. 578« n. • ArUe. ' OOVKRNMKNTB OF FORKIGN 8TATIS AND AMBASSADORS. Ill boon determiued, that if ho files a bill, a crosH bill may bo filed against him : becauso, by suing hero, he submits himself to tho jurisdiction of the Court; and, iu such a case, if requir«>d, ho is bound to answer upon oath.* . . The question whether a foreign Sovereign, who has not submitted to tho jurisdiction, can bo sued in the Courts of this country, was raised in the case of tho Duke of Brwmdck v. The King of Hanover.' It was an important feature in this case, that tho defendant, as a subject of this kingdom, had renewed his allegiance after his accesHion to tho throne of Hanover, and exorcised the rights of an English poor. Tho gonornl object of tho suit was to obtain an account of property belonging to the plaintiff, alleged to have been possessed by the defendant, under colour of an instrument creating a species of guardianship unknown to the law of England. None of tho acts complained of took place in this country, or wore done by the defendant before he became King of Han- over. Moi'oovor, though it was not necessary to decide tho question, tho Court seemed to consider that those acts wore jf a political character. The defendant demurred to the bill ; and in giving judgment upon the demurrer. Lord Langdale, M. E., after elaborately reviewing all the authorities and arguments upon the subject, said : " His Majesty tho King of Hanover is, and ought to be, exempt from all liability of being sued in the Courts of this country, for any acts done by him as King of Hanover, or in his character of sovereign prince ; but being a subject of the Queen, ho is and ought to be liable to bo sued in the Courts of this country, in respect of any acts and transactions done by him, or in which he may have been engaged, as such subject. And in respect of any act done out of the realm, or any act as to which it may be doubtful whether it ought to be attributed to the character of Sovereign, or to the character of subject, it appears to me, that it ought to be presumed to be attributable rather to the character of Sovereign, than to the character of subject."' Accordingly, as it did not appear that tho alleged acts and transactions of the defendant were of such a description as could render him liable to be sued in this country, the demurrer was allowed. It further appears ftom the last mentioned case, that as a Sovereign prince is ^nma/acic entitled to special immunities, it ought to appear on the bill that the case is not one to which such special immunities extend.* There have, moreover, been cases in which, the Court being called > Bilktt T. King 6 Beav. 67. * See 6 Beav. 68. X 112 PERsoJta AGtAl^fST Whom a smf may be tNsitTUTED* upon to distribute a fund in which some foreign Sovereign or State may have had an interest, it has been thought expedient and proper to make such Sovereign or State a party. The effect has been to make the suit perfect as to parties, but, as to the Sovereign made a defendant, the eifect has not been to compel, or attempt to compel, him to come in and submit to judgment in the ordinary course, but to give him an oppor- tunity to come in and claim his right, or establish his interest in the subject-matter of the suit. • iv ;> '■ " *? > 1^; ^ ; Section IV. — Corporations and Joint- Stock Companies. . ;5,i It has been stated before,^ that corporations aggregate must be sued by their corporate name, that is, by their name of foundation : though it has been said that, if a corporation be known by a particular name, it is sufficient to sue it by that name.' This, however, must be confined to the case of a corporation by prescription; for in other cases, where the commencement of it appears by the record, it can have no other name by use than that under which it has been incorporated, and the Court will not permit it to be sued by any other name.* A corporation aggi'egate which has a head, cannot be sued without it: because without its head it is incomplete. « It is not, however, necessary to mention the name of the head ;" nor is it in general proper to make individual members of aggregate corporations parties by their proper Christian and surnames : though cases may occur where this will be permitted, for the purpose of compelling a discovery from them of some fact which may rest in their own knowledge. Thus, in the case put by Lord Eldon, in Bummer v. The Corporation of Chippenham,'' of an indivi- dual corporator whose estate was charged with a rent or payment to a charitable use, of which the corporation had the management, and who had obtained possession of the deed, and had destroyed or cancelled it, his Lordship was of opinion that, upon an information for the purjjose of having the estate of the charity properly administered by the corpo- ration, it would be perfectly competent to call upon the mayor, if he was " Beav. 68. In Gladstone v. MttsurusBey, 1 H. & M. 495: 9 Jur. N. S. 71, t^«^ Sultan was made a defendant, but did not appear. « Ante. » Attorney-General v. Corporation qf Worcester, a Phil. 3 : 1 C. P. Coop. t. Cott. 18. ^ • Ibid. • 2 Bac. Ab. tit. Corp. (E.) PI. 2. In F sugars v. Bivaz, 28 Beav. 2JS, 249 : 6 Jr". N. 8. 854, it was held, that the corporation of the French Protestant Chureh having become divided into separate churches, and there being no public officer at the head sf the corporation, the bill was properly filed against the governing body of the particular church, and not against the corpor- ation by its corporate name. • 3Salk.l03: 1 Leon. 30T. M4Ve8.246,264. . the individii rest under tl relative to tl cipal case, w ration who v of the trusto on the groun members of it parliament parties, for t as to their al in by these f discovery ag case of the A plaintiff and members of them in the i The practj parties to a si oath of the i upon and ack which occurs a bill having the defendant sworn, would clerk of the should think tettle the oatl plaintiff \\ as i discovery onl directors, and company. It ' c. & P. 1, 21. ^ Ld. Red. 188, 18! » 1 Vem. 117; bul 310, 312; Gibi India Cu., 29 * 11 Sim. 306. 8( General v. Me 5W. K. 486; also Moodalei Dutnmer v. : the case of S against the c( and that, instt to matter of ff was disallowei answer the cl M'Jntoshy. Q COEPORATIONS AND JOINT STOCK COMPANIES. 113 the individual implicated in that conduct, not only to answer with the rest under their common seal, but also to answer as to the circumstances relative to the deed supposed to be in his hands. So also, in the prin- cipal case, which was that of a bill by a schoolmaster against a corpo- ration who were trustees of a charity, to be relieved against a resolution of the trustees by which ho was deprived of his ofS^o of schoolmaster, on the ground that the resolution had l^eon pronounced by five of the members of the corporation, from improper motives with reference to a parliamentary election, to which bill the five members wore made parties, for the purpose of obtaining fiom them an answer upon oath as to their alleged improper conduct, a demurrer, which had been put in by these five members on the ground that no title was shown to the discovery against them, was overruled by Lord Eldon. And in the case of the Attorney-General v. Wilson,^ a corporate body, suing both as plaintiff and relator, sustained a suit against five persons, formerly members of the corporation, in respect of unauthorized ads done by them in the name of the corporation. The practice of making the officers or sei-vants of a .corporation parties ^..o a suit, for the purpose of eliciting from them a discovery upon oath of the matters charged in the bill, has been too frequently acted upon and acknowledged to be now a matter of doubt. ^ The first case which occurs upon the point is an anonymous one, in Vernon, ^ where a bill having been filed against a corporation to discover writings, and the defendants answerinsr under their common seal, and s^, not being sworn, would answer nothing to their prejudice, it Avas ordered that the clerk of the company, and such principal members as the plaintiff" should think fit, should answer on oath, and that the Master should f-cttlo the oath. ^^ the case of Glasscott v. Copper Miners' Company,* the plaintiff was sued at Law by a body cprporate, and filed his bill for discovery only : making the governor, deputy-chairman, one of the directors, and the secretaiy of the company, co-defendants with the company. It was objected, upon demurrer to the bill, that an officer is p 'C. &P. 1, 21. ' , ' ' Ld. Red. 188, 189. ' 1 Vera. 117 ; but the answer cannot be read against the Corporatloji : Wych v. Meal, 3 P. Wms. 310, 312 ; Gibbons v. Waterloo Bridge Company, 1 C. P. Coop. t. Cott. 386 ; Wadeer v. Eaut India Co., 29 Beav. 300 : 7 Jur. N. 8. 350. * 11 Sim. 306. See 3PIntosh v. Oreat Western Railway Company, 2 De O. & 8. 758 ; Attorney- Getieral v. Mercers'' Company,9W. K. 83; Attorney- General v. East Dereham Corn Exchange, 5 W. R. 486; Ranger v. Great Western Railway Co., 4 De O. & J. 74 : 5 Jur. N. 8. IIDI ; see also Moodaleyy. Morton, 1 Bro. C. C. 469. Ii should be observed here, thet Lord Eldon, In Dummer v. The Corporation qf Chippenham, 14 Ves. 254, mentioned It as his opinion, that tlie case of Steward v. The East India Company. 2 Vem. 380, in which a demurrer to a bill against the company and one of its servants, is r^orted to have been allowed, is a misprint ; and that, instead of statiiig that the demurrer was allowed without putting them to answer as to matter of ftand and contrivance, which is nonsense, it should have been, that the demurrer was disallowed, with liberty to insist by their answer that they should not be compelled to answer the charges of fhtad, &c. ; this case however, appears to be correctly reported, Bee M'Intosh v. Oreat Western Railway Company, 2 De G. & S. 770. 44 I 'I 114 PERSONS AGAINST WHO»I A SUIT MAY BE INSTITUTED. of ti coi'porotion could not bo made a co-dofondaiit to a bill which nought for discovery only, or at any rate, that individual moraberp, could not be joined as defendants with tho corporation at largo ; but the demurrer was overruled. : ,y i. . - It may bo observed hero, that where tho officer of tho coiiioration from whom tho distovery is sought is a more witness, and tho facts he is required to discover are merely such us might bo proved by him on his examination, ho ought not to bo ma IIow V. Best, 5 Mad. 19. » Attorney-General v. The Largesses qf East Retford, 2 M. & K. 40. PERSONS OUT OP THE JURISDICTION OP THE COURT. 115 Where a suit is instituted against a corporation sole, he must appear and defend, and be jiroceeded against in the same manner as if ho were a private individual. But where corporations aggregate are sued in their corporate capacity, they must appear by attorney, and answer under the common seal of the corporation ; however, those ol" the corporation who are charged as private individuals, must answer upon oath, i If the majority of the members of a corporation arc rctKly to put in their answer, and the head or other person who has the custody of the common seal refuses to affix it, application must be made to the Court of Queen's Bench for a mandamus to compel him, and in the meantime the Court of Chancery will stay the process against the corporation.' The process for compelling the appearance or answer of a corporation will be found in future Chapters. i 1:^ \ ' Section V. — Persoiio out of the Jurisdiction of the Court. Where a suit aftccts the rights of persons out of the jurisdiction, the Court will in some cases, whore there are other parties concerned, pro- ceed against those other parties, and if the absent persons are merely passive objects of the judgment of the Court, or their rights are incidental to those of the parties before the Court, a complete determination may bo obtained without them.^ Thus in Attorney-General at the relation of the University of Glasgow v. Baliol College,^ which was an information filed to iinpeach a decree made in 1699, on a former information* by the Attorney-General against the trustees of a testator, his heirs at law and others, to establish a will and a charity created by it, alleging that the decree was contrary to the will, and that the University of Glasgow had not been made a party to the suit: Lord Hai-dwicke overruled the latter objection, as the University of Glasgow was a corporation out of the reach of the process of the Court, which circumstance warranted the proceedings, without making that body pai'ty to the suit. And so, where a bill Avas filed for the rocoveiy of a joint debt against one of two partners, the other being out of the kingdom, the question before the Court was : whether the defendant should pay the whole or ' Rex V. Wyndham, Cowp. 8T7 ; 2 Bac. Ab. tit. Corp. (E.) 2. ' Ld. Red. 31, 32 ; and Bce PmoeU v. Wright, 7 Beav. 444, 450. In PostgcUe v. Barnes, 9 Jur. N. S. 450, V.C.S., a demurrer to the bill of a married woman to enforce bcr equity to a settlement, on the eround that her husband was only made a defendant when he should come within the Juris- diction, was overruled ; and see Jackson v. Norton, 4 Jur. N. S. lOOT : 7 W. K. 4, M.R. ' Dec. 11, 1744; Ld. Red. 83, n. («). * Reported in 9 Mod. 407. ' fc 116 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. only a moiety of tho debt ; and Lord Hai*dwicke was of opinion that he ought to pay the whole' Upon the same principle, a bill may be brought against one factor without his companion, if such companion bo beyond sea;^ and where there were two executors, one of whom was beyond sea, and a bill Avas filed by a residuary legatee against tho other, to have an account of his own receipts and payments : the Court, upon an objection being taken at the hearing, on the ground of the absence of the co-executor, allowed the cause to go on. ^ In his treatise on pleading, Lord Eedesdale says, " when a person who ought to be a party is out of the jurisdiction of the Court, that fact being stated in the bill, and admitted by the defendants, or proved at tho hearing, is, in most cases, a sufficient reason for not bringing him before the Court; and the Court will proceed, without him, against the other parties, as far as circumstances will permit;"* and on this principle, the Court as frequently made decrees without prejudice to tho rights (if any) of absent pjtrties, or reserving all questions in which they were interested, and determining only such as did not affect them.^ In bills of interpleader, also, a plaintiff may proceed with his suit and obtain an injunction against a party resident in this country, although the other parties claiming the property are outofthejurisdiction.fi In such cases, however, the plaintiff is bound to use prompt diligence to get tho parties who are absent to come in and interplead with those who are present. If he does not succeed in doing so within a reasonable time, tho consequence is, that tho party within the jurisdiction must have that which is represented to be tho subject of competition, and the plaintiff must be indemnified against any proceeding being afterwards taken on the part of those who are out of the jurisdiction.' For this purpose, " if the plaintiff can show that he has used all duo diligence to bring persons out of tho jurisdiction to contend with those who are within it, and they will not come, the Court upon that default, and their so abstaining from giving him an opportunity of relieving himsoU'^ would, if they afterwards came here and brought an action, order service on their attorney to be good service, and injoin that action for ever: not permitting those who refused the plaintiff that justice, to commit that injustice against him''.^ Upon the same ground it has been ■ \ ^ Darwent y. WallOHt iAik. 510. a ivj. ;;.;.. i;^,: _•:..*;.;■•;, ; " Cowalad v. Cely, Prec. Ch. 83. ' Cowslad V. Celu, Prec. Ch. 83. ■^ * LA. Red. 164; eeo also Smith v. Hibernian Mine Company, 1 8ch. & Lcf. 238, 240 ; Roaers v. Z/ntoi, Bunb. 200 ; WcMey v. WaUey, 1 Vern. 487 ; Duxbury v. Jsherwood, 18 W. R. 821, V.C.W. 1 mUats V. Busby, 5 Beav. 103, 200; Frnvell v. Wright, .7 Beav. 444, 450 ; Morky v. Hennoldsoii, 2 Hare, 570, 585 ; 7 Jiir. 938 ; Mores v. Mores, 6 Hare, 135, 127, 135 ; 12 Jur. 820. " Stevenson v. Anderson, 2 Vea. & B. 407, 411. ' Ibid. * Per Lord Kldon, 2 Ves. & B. 412 ; see also Martinius v. Helmuth, G. Coop. 245, 248 ; reported -m in some copies of 2 Ves. & B. 412 n. ; East and West India Dock Company v. LitUedale, 1 j llare, 67. determine served, wi bill may b interplead Where, 1 whoso into: proceed in are before i out an elegi against real the Court w for life, subj has been he who has roc jurisdiction, the West In and had got suit was inst apijointcd bj motion for a that the pure had never be It has beer pointed, notv case of Tanfi to Sir John ! secured by a had gone abr the applicatic deprive a ma: but upon tho order for a re prevent anj- j from ousting not see why t away, by the pearance, and ' Fairbrother v. ' Browne y. Blou 8 Hare, 1 : 14 , ' Roveray v. Ora * Stratton y. Dav\ ' 3 Ru88. 149, IBl ; "tSS, and cases m PERSONS OUT OP THE JURISDICTION OP THE COURT. 11? determined, that where a party to a bill of interpleader, who has been served, will not appear, and stands out all the process of contempt, the bill may be taken pro confesso against him, and ho will bo decreed to interplead with the other defendants.' Where, however, the person who is out of the jurisdiction is one whoso interests are principally affected by the bill, the Court cannot proceed in his absence, even though the parties having the legal estate are before the Court ; thus, where a judgment-creditor, who had sued out an elegit upon his judgment, filed a bill for crpiitablo execution against real estates, which were vested in trustees upon certain trusts, the Court would not proceed with the cause, because the equitable tenant for life, subject to the trusts, was abroad.^ Upon the same principle it has been held, that bail cannot maintain an injunction against a creditor, who has recovered a verdict, where the princij)al debtor is out of the jurisdiction. 3 In a case where a contract for the sale of an estate in the West Indies hatl been entered into by a person who resided there, and had got into possession without paying the purchase money, and a suit was instituted in this country by the vendor against the consignees appointed by the purchaser. Lord Lyndhurst refused to entertain a motion for a receiver of the proceeds of the consignments, on the ground that the purchaiL'er, who was the principal defendant, was abroad, and had never been served with subpcena.* It has been held, that a receiver of a mortgaged estate may be ap- pointed, notwijihstanding the absence of the mortgagor. Thus, in the case of Tanfield v. Irvine, * an application for a receiver had been made to Sir John Leach, Y. C, by the grantee of an annuity, which was secured by an equitable charge upon an estate ; and though the grantor had gone abroad, and had not appeared to the suit, his Honour refused the application, on the ground that the Court hatl not jurisdiction to deprive a man, who was not present, of the possession of his estate ; but upon the motion being renewed before Lord Eldon, he made the order for a receiver, but guarding it, however, in such a way as not to prevent any person having a better title to the possession of the estate, from ousting him if they pleased. His Lordship observed, that he did not see why the rights of the equitable mortgagee were to be taken away, by the circumstance that the mortgagor had not entered an ap- pearance, and could not be compelled to do so; and that a second ' Fairbrother v. Prattent, Dan. Exc. Rop. 64; and the decree, ib. 69, n. (c). » Browne v. BkmnU 2 R. & M. 88 ; and see Kirwan v. Daniel, 1 Hare, 3-17 : J/' Calmont v. Ilanlin, 8 Hare, 1 : 14 Jur. 475 ; Anderson v. Slather, 2 Coll. 209. ' Roveray v. Orayson, 3 Swanst. 145, n. * SlraiUm v. Davidson, 1 R. & M. 484. ' 3 Ru88. 149, 151 ; see also Coward v. C/iadwiek, ib. 6.S4, and 150 n. : Doii'liriff v. Hudson, 14 Beav. 493, and cases collected in the note thereto. 118 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. mortgagee might be delayed to all eternity, if the residence of the mortgagor out of the jurisdiction were to have the effect which the Vice- Chanceller had given It. It is usual, in cases Avhere any of the persons who, if resident in this country, would be necessary parties to a suit, are abroad, to make such persons defendants to the bill, stating the fact of their being abroad : which fact, unless they appear, must be proved at the hearing ; ' and, notwithstanding the observation of Loixl Redesdalo cited above, it seems that the admission of the parties before the Court is not evidence on which the Court will act.^ When the proof of this fact at the hearing is not such as to satisfy the Court, the usual practice is to direct the cause to stand over for the purpose of supplying the proper evidence. ^ In some cases, however, if there are preliminary inquiries or accounts to bo taken, they have been directed to be proceeded with in the mean- time ;* and in others, an enquiry as to the fact has been directed.* In Penfold V. Kelly, ^ Sir R T. Kindersley, Y. C, refused an application for leave to serve a defendant coming within the jurisdiction after decree, and against whom no specific relief was prayed, with a copy of the bill. In Capel v. Butler, "^ where a party who was named as a defendant, but had never been served, appeared by counsel at the hearing, and consented to be bound by the decree, the defect arising from his not having been served was held to be cured. ' In some cases, where a defendant has been abroad during the pro- ceedings in a cause, he has been allowed to come in after decree has been pronounced, and to have the benefit of it, without the process of filing a supplemental bill. Thus, in Banister v. Way,^ after a decree, pronounced in a suit by a residuary legatee, establishing a will, and directing the necessary accounts, others of the residuary legatees, who were abroad, applied to have the benefit of the decree, submitting to be bound by it ; and an order was made by Lord Thurlow (they sub- mitting to the decree), that they should be at liberty to enter their appearance, and should have the like benefit of the decree as if they had put in an answer, and had appeared at the hearing of the cause. A ' AToodiey. Bannister,! Drew. 614. The party should not be named as a defendant "when he shall come within the Jurisdiction," but as being "out of the Jurisdiction : " see Jackson v. Norton, 4 Jur. N. 8. 1067: 7 W. B. 4, M. R. a Wilkinson v. Beat, 4 Mad. 408 ; Hughes v. Hades, 1 Hare, 486, 488 : 6 Jur. 255 ; Eggintm v. Burton, 1 Hare, 488, n. ; 1/' Calmont v. Bankin, 8 Hare, 1 : 14 Jur. 475. s Eddington v. Burton, 1 Hare, 488, n. ; Smith v. Edwards, 16 Jur. 1011, V. C. S. * Butler T. Borton, 6 Mad. 40, 43 ; Hughes t. Eades, 1 Hare, 486 : 6 Jnr. 966. » Mores v Mores, d Hare, 136: 12 Jur. 690 ; Eades v. Harris, 1 T. & C. C. 9.30, 2.34; but see Bibbs V. Goren, 1 Beav. 467. • 19W. R. 286, andseeOrd. X.11,18. ' » 2 S. & 8. 467, 4'(J2 ; and see Sapte v. Ward, 1 Coll. 94. * For form of introductory part of decree, see Seton, 3, 4 ; and 1 Coll. 25. • 2 Dick. 686. 1»ER80NS OUT OF THE JURISDICTION OP THE COURT. similar order was made by Lord Lyndhur-st, after a cause had been heard upon further directions.' '; •;•'',. '. An order for leave for a defendant to come in, after decree, may bo obtained by petition of course, if the plaintiff will consent thereto. If ho will not consent, notice of motion, must be served on him.^ The petition, or notice of motion, usually asks that the defendant, on sub- mitting to be bound by the decree and proceedings already had, may bo at liberty to answer the bill, and may have the like benefit of the decree, and may be at liberty to attend the subsequent proceedings, as if ho had appeared at the hearing. A copy of the oi*der, when passed and entered, should be served on the solicitors of the other defendants, and on the plaintiflfs solicitor when the order is made on petition. On production of the order to the Eccord and Writ Clerk, an answer appearance by the defendant may be filed in the usual way, and notice thereof must be given, on the same day, to the plaintiffs solicitor ; and the cause thenceforth proceeds against such defendant in the ordinary manner. • In the case of infants, however, the Court must be satisfied, by inquiry or otherwise, that it is for their benefit to adopt the proceedings. ^ Wliere a defendant is stated to bo abroad, he is not considered a party to the suit, at least not till he has been served with the bill, for the determination of any point of practice, arising between the plaintiff and the other defendants; therefore, an order to amend cannot be obtained, after the usual time, on the ground that a defendant abroad has not answered.* Under the present practice of the Court, however, such questions as we have been considering, with reference to defendants out of the jurisdiction, will be of comparatively rare occurrence ; for the Court can now, in many cases, direct service on persons out of the jurisdiction ;5 and can also, when the suit is defective for Avant of parties, and the defendant has not taken the objection by plea or answer, make a decree, if it shall think fit, saving the rights of absent parties. ^ Our Court has the same power under order G5, which provides that "Where a defendant, at the hearing of a cause, objects that a suit is defective for want of parties, the Court, if it thinks fit, may make a decree saving the rights of the absent parties." ' ]\7iite V. Hatt, 1 R. & M. 332 ; and see Pi-endergast v. Lushingion 5 Hare 177 ; Potts v. Jirifton, M. R. In Chamb., 22 Deo. 18M. •^ Braitbwalte'8 Pr. 323. For form of order, see Seton, 1950. ^ Copley V. Smithsm, 5 De G. & S. 6Sfi ; BailUe v. Jackson, 10 Sim. 167. ♦ King of Spain v. Hullet, 3 Sim. 338. s Pro. Sta. 20 Vic c. 56, s. 15, and 88 Vlc. c. 17. 8. 12, and Con. U. O. Nob. 90, 92, 96, 101, 102. « Ord. XXIII, 11 ; Maybeiij v. Brooking, 7 De G. M. & 0. 673 : 'i Jiir. N. S. 76. 120 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED, And it may licro bo observed that, as a general rule, persons are not now named parties to a suit unless direct relief is sought against them ; and therefore, if they happen to be out of the jurisdiction, it will in general, on the authority of Browne v. Bbunt,^ and the other cases before referred to, be necessary to serve them. ^ ^ ■■. Section VI. — Paupers. Although the 11 Hen. "VII. c. 12, before referred to as that under which the practice of admitting parties to sue in forma pauperis, origin- ated, 2 does not extend to defendants, and consequently a defendant in an action at law is never allowed to defend it as a pauper,' yet a greater degree of liberality is practised in Courts of Equity; and a defendant who is in a state of poverty, and, as such, incapable of defending a suit, may, as well as a plaintiff, obtain an order to defend in forma pmiperis, upon making the same affidavit of poverty as that required to be made by a plaintiff. Indeed, originally, the right of admission in forma pauperis appears to have been confined to defendants. By Lord Bacon's orders it is said, that " any man shall be admitted to defend in forma pauperis upon oath ; but for plaintiffs, they are ordinarily to be referred to the Court of Requests, or to the provincial counsels, if the case arise in the jurisdictions, or to some gentleman in the country, except it be in some special cases of commiseration or potency of the adverse party." * It has been before stated, that no person suing in a representative character is allowed the privilege of proceeding in forma pauperis. The same ride applies to defendants sued in a representative character, even in cases where they have received no assets of the estate of the testator whom they represent.* . ' The order admitting a party to sue or defend in forma pauperis, has not the effect of releasing him from costs ordered to be' paid prior to his admission, but the payment of such costs may be enforced in the usual manner ; it may, however, be doubtful whether the admission may not have a retrospective effect upon costs incurred before the dale of his admission, but concerning which no order for taxation and pay- ment has been made. » Where a defendant had been committed for not » 2 R. & M. 83, an<«. ;: : i" v .VV. :^ ' :. ':- J'-^ ■ -;'■• -■■. - .■^:' .•■:•'':;'>,"■■ ',, « Ante. » Chitty's Arch. 1277. * Beames' Ord. 44 ; Sand. Ord. 123. This order is abrogated by the Cons. Ord. ; but see ib. Prel. Ord. r. 5; eee also Lord Clarendon's Orders, Beames, 215—818: Sand. Ord. 312; now Cons. Ord. VII. 9—11. « Oliifleld V. Cobbett, 1 Phil. 618; ante. • Davenport v. Davenport, 1 Phil. 124; see. however. Prince Albert v. Strange, 2 De G. & S. 662, 718 : 13 Jur. 507, where a defendant, having been admitted to defend in the course of the cause, was ordered, at the hearing, to pay the plaintiirs costs up to the time of euch admission. BANKRUPTS AND INSOLVENT DEBTORS. 121 answering, and had subsequently obtained permission to defend in forma pauperis, and tlieroupon luid put in liis answer, Sir J. L. Knight Bruce, V. C, ordered him to be discharged, without payment of the costs of the contempt : considering the Court to have power to make such an order, either under its general authority independent of the 11 CJeo. IV. & 1 Will. IV. c. 3C, or under that statute combined with its general authority.' It appears that where the plaintift' dismisses his l)ill against a pauper dol'endant, the practice is to allow the defendant divca costs.^ To entitle a party to defend as a pauper, ho must make an affidavit similar to that required from a plaintiff applying to sue in that character ; and it seems that if ho is in possession of the property in dispute, he cannot be admitted, or if admitted, ho may, upon the fact being afterwards shown to the Court, be dis-paupered.^ In this and in most other respects, the rules laid down with regard to persons suing in forma paupei'is* arc applicable to persons defending in that character: the only difference being in the form of application for admission ; for the petition, in the case of a defendant, is much shorter than in the case of a plaintiff, and is not required to contain any statement of the case, or to be accompanied by any certificate of counsel." Section VII. — Bankrupts and Insolvent Debtors. It is a general rule of Courts of Equity, that no person can be made a party to a suit against whom no relief can be prayed ; and it follows, as a consequence of this rule, that no person whose interest in the subject-matter of the suit Jias been vested by act of law in another, ought to bo made a defendant. Consequently, it has been held, that bankrupts and insolvent debtors, whose interests, whether legal or equitable, in the property, must have devolved upon their assignees, cannot be made parties to suits relative to any property which is affected by the bankruptcy or insolvency. « Upon this principle, a demurrer put in by a bankrupt, who was joined as a co-defendant with his assignees, in a bill to enforce the specific ' Bennett v. Chudleigh, 2 Y. & C. C. C. 164 ; see, however, SnowbaU v. Dixm, 2 Do G. & S. 9 ; and Dew V. Clark, 16 Jur. 1, L. C. '^ Eiibery v. Morris, 1 Me N. & G. 413: 16 Sim. .312, 43.3: 12 Jur. 689. Unless otherwise directed, coBta ordered to be paid to a party suing or defending in fmina prnqxris, arc to be taxed, as dives costs, Ord. XL. 5, 1&19. ' 5j;«k!erv. Sryan^ 11 Yes. 49; see also Wyatt's P. R. 321. , * Ante. ' See Ord. May 1861—1849. ' Whitwwth V. Davis, 1 Ves. & B. 546, 647; De Oolls v. Ward, 3 P. Wms. 311, n; Collins v. Shirley, 1 K. & M. 638 ; Judgment of Lord CoUenham In Rocfifvrt v. Batterslty, 2 H. L. Ca. 408 ; ana see Davis v. SneU, 28 Beav. 321. 12£ PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. performance of an ngrcomont entered into by him previously to his bankruptcy, was allowed.' It is said by Lord Rcdesdalo that, although a bankrui)t made a party to a bill touching his estate may demur to the relief, all his interest being trannforred to his assignees, j'Ct it has been generally understood, that if any discovery is sought of his acts before ho became a bankrupt, he must answer to that part of the bill for the sake of the discovery,, and to assist the plaintiff in obtaining proof, though his answer cannot be read against his assignee; otherwise, the bankruptcy might entirely defeat the ends of justice. » This opinion has given rise to much dis- cussion, and is made the subject of an elaborate judgment by Sir Thomas Plumer, V. C, in the case of Whiticorth v. Davis,^ in the course of which he observes that " the case of Fentm v. Hughes* lays down a broad j>rinciple, viz: that a person who has no interest, and is a mere witness, against whom there could bo no relief, ought not to be a party ; a bankrupt stands in that situation : a competent witness, having no interest, against whom, therefore, no relief can bo had at the hearing[; he falls precisely within that general rule."* Ho, however, allowed the demurrer in tho ease before him, without determining the general question. When tho bankruptcy of a defendant does not appear on tho face of the bill, or has occurred subsequently to tho filing of the bill, but before the expiration of the time for putting in his answer, the defendant may take the objection by way of plea. « Ho may also plead the bankruptc}- of a co-defendant, even where it took place after the filing of the bill.'' The decision of Sir Tliomas Plumer, in Whiticorth v. Davis, still leaves it doubtful whether a bankrupt can bo made a party to a bill against his assignee for the mere purpose of discovery and injunction ; but there is no doubt that if he is niatle a party for the purpose of obtaining relief against him, he may demur to tho bill, and that in such case his demurrer will protect him fi'om the discovery as well as the relief; where, however, fraud or collusion is charged between the bankrupt and his assignees, the bankrupt may be made a party, and he cannot demur, although relief bo prayed against him. Thus, where a creditor, having obtained execution against tho effects of his debtor, • Whitworth v. Davif, 1 Ves. A; B. 545 ; see also Griffln v. Archer., 2 Anst. 478 ; Uoyd v. Lando 6 Mad. 282, 288 ; CoUet v. WoUaston^ 3 Bro. C. C. 228. » Ld. Eed. 161. ■ i 3 1 Ves. &B. 545. * 7 Ves. 287; see also Le Texier v. Margravine ofAnspaeh, 15 Ves. 159, 16C. 6 1 Ves. & B. 549, 550; Bee Gilbert v. Lewis, 1 Do G. J. & S. 38 : 2 J. & H. 452: 9 Jur. N. S. 187: Story Kq. PI. s. 223, n. « Turner v. Hobimon, 1 S. & 8. 3t Lane v. Smil/i, 14 Beav. 49; Jones v. Binns, 10 Jur. N. S. 119, 10 . W. K. 389, M. li. ^ Sergrove v. Mayheiv, 2 M'N. & G. 97. filed a bill had issued, i charging th execution, i ])0ssessed pj insteati of pi a demurrer might bo e; principle, w to accept bill wards indors drawer of tli injunction, t, tho bill filed, ruled the plcj Wliere a d the suit, the choice, either go on witli t JCnox V. Brou own bill witli self that the o of Rutherford an order with^ made on beha the plaintiff's although ho a an order witl plaintifi" upon t usual undertal Smith,"^ Lord mentioned cas( missed it must It appears fr iiotwithstandin Ktng V. Martin, 2 J. &H. 462: 9 merely except ii * Mackworth v. Ma ' Monteith v. Taylo * 2 Bro. C. C, 186. "8 Anst. 468. ' 9 Ves. 615. ' 1 M'N. & Q. 80. BANKRUPTS AND INSOLVENT DEBTORS. 123 filed a bill against the debtor, againtst whom u eommisHion of bankrupt had issued, and the persons claiming as assignees imdor the commission, charging that the commission was u contrivance to defeat the plaintifl's execution, and that the debtor having, by permission of the plaintiff, possessed part of the goods taken in execution for the purpose of sale, instead of paying the produce to the plaintiti'had paid it to his assignees : a demurrer by the alleged bankrupt, because ho had no interest, and might be examined as a witness, was overruled.' Upon the same principle, whore a man had been fraudulently induced by the drawer to accept bills of exchange without consideration, and tlie drawer after- wards indorsed them to others; upon a bill filed against the holder and drawer of the bills of exchange, for a delivery u]> of the bills, and an injunction, the drawer pleaded his bankruptcy, which took ])laco after the bill filed, in bar to the bill; but Sir Lancelot Shadwell, V. C, over- ruled the plea. 3 Wliere a defendant becomes bankrupt after the commencement of the suit, the bankruptcy is no abatement, and the plalntift' has his choice, either to dismiss the bill and go in imder the bankniptcy, or to go on with the suit, making the assignees parties. » It seems that in Knox V. Broivn,* Lord Thurlow permitted the plaintiff to dismiss his own bill without costs, because it was by the act of the defendant him- self that the object of the suit was gone. In a subsequent case, however, of Rutherford v. Miller,^ the Court of Exchequer refused to make such an order without costs ; and in Monteith v. Taylor,'^ where a motion was made on behalf of the defendant, who had become bankrupt, to dismiss the plaintiff's bill with costs, for want of prosecution. Lord Eldon, although he at first entertained a doubt whether he could make such an order with costs, afterwards expressed an opinion against the plaintiff upon that point, upon which the plaintiff submitted to give the usual undertaking to speed the cause; and in the case oi Blackmore \ . Smith,'' Lord Cottenham, after referring to the order made in the last, mentioned case, in the Registrars' book, held, that if the bill were dis- missed it must bo with costs. It appears from the two cases last refeiTcd to, that a defendant may, notwithstanding ho has become bankrupt, move to dismiss tlie plaintiff's c 9 i !■ ' King v. Martin, 2 Ves. J. 641, cUed Ld. Red. 162 ; but see Gilbert v. Uwis, 1 De O. J. & S. 38 : 2J.&H. 463: 9Jur. N. S. 187. By Cou. G. O. No. 85, no bill is to be AM for discovery merely except in certain cases. " Jfacftwor Blackmore v. Smith, ubl sup. ; neo nlso Jiobson v. Earl of Devon, . Craibe v. Movbery, 6 De O. & S. 317; Benison v. Woriley, ib. 648. " See Drant v, Vame, 2 T. & C. C. C. 521 : 7 Jur. 037, L. C. ; Egremont v. Egremont, 2 De G. M. & G. 730: 17 Jur. 55; Foster v. Cautley, 10 Hare, App. 24 : 17 Jur. 370 ; Storr v. Pannell, 1 W. E. 209, V. 0. S. ' Con, O. O. No. 526. " i?e m«a», 9 W. B. 689, n. c p 1 I 126 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. advcrso interest;' but the plaintiff, a jiiaiT>d woman, or a person out of the jurisdiction, 3 cannot bo appointed. If no applicat ion for the appointment of a guardian is made on behalf of the infant, the plaintiff may obtain the appointment of one. One of our orders 3 provides that "In case it shall appear to the Court that any defendant upon whom an office copy of a bill has been served is an infant, or a person of weak or unsound mind not so found by inquisition, unable of himself to defend the suit, the Court, upon the application of the plaintiff, at any time after bill filed, may order that one of the Solicitors of the Court be assigned giArdian of such defendant, by whom ho may answer the bill and defend the suit." It has been seen* that by Order 30 of the Con. G. Orders, this appointment may bo made by a Local Muster. When the infant is a mal-ried woman, :i guardian must be appointed ; though it appears to be the practice to appoint her hus- band to be her guardian, where he is a defendant with her, and they intend to defend jointly. ^ It is no bar to the appointment of a guardian ad litem to an infant defendant, in an administration suit commenced by notice of motion, that the application for a guardian is made before the return of the notice of motion for administration. « But the infant should be served with the bill before the return of the notice of appli- cation for the appointment of guardian.' By another order^ it is directed that ** Notice of the application must be served upon, or left at the dwelling house of the person with whom, or under whose care the defendant resides, at least one week before the hearing of the application ; and Avhero the defendant is an infant, not residing with or under the care of his father or guardian, notice of tho application must also be served upon, or left at tlio dwelling house of the father or guardian, unless the Court at tho time of hearing thQ application thinks fit to dispense with such service." The notice should be served on, or left at the dwelling house of the person under whoso care the defendant is;' and Avhere it appeared that tho mother and father of an infant defendant were living ai>art, and that the infant had absconded, and could not be found to bo served with notice of the application for the appointment of a guardian, tho notice was directed to be served at tho residence of the mother, that being the last place of residence of tho infant; service on » Sec Bonfldd v. Grant, 11 W. R. 275, M. R. ; Newman v. &W<^, if>- "i^i, M. R ; Anon, 9 Hare, App.?". '•' ^now, 18 Jur. 770, V. C. W. 3 Con. G. O. No. 519. \^ „ ., . . : * Ante. C'olman v. Northcote, 2 Hare. 147. • Barry v. Brazil, 1 Cham. R. 937. '' Robinson v. Bobson, Ibid. 257. s Con. G. O. No. 580. « Taylor v. Amley, 9 Jur. 1055; Christie v. Catneron, 8 Jur. N. S. 035, and see Bowman v. BecMU 8 Grant. 55tf. in 3asc of ai w INFANTS. 127 the father being disponsod with.* Where the plaintiff was unable to diHcovor where the parents lived, service was deemed Hiifticient on the head of a College, of which the infant was an undergraduate. = Upon an application to appoint a guardian ad liteM to an infant, who was a resident pupil at Upper Canada College, Toronto, it appeared that notice of the application had been served upon the principal of the College, it was IveUl that this Avas service upon " a person with whom, or under whose care " the infant was residing. ^ Where the infant's lather was dead, service of the notice at the house of the infant's mother and stepfather was held 8ufficient<* Though the rule applies to infants residing abroad \^ yet, where an infant defenduat, having no substantial interest in the suit was abroad, service of notice of the application was dispensed with.« Wliere an absent defendant is an infant, the Court has like powers as to granting an onler for service by ])ublication as in oasc of an adult ; but, semblc, the notice published should not state tliat in default of answei*, the bill will be taken pro confesso. The Court will also in exercise of the discretion given to it by 28 Vic.C. 17, Sec. 12, call upon such defendant by the same order to show cause why a Solicitor of the Court should not be appointed his guardian ad litcm."^ Where a gmu'diau rtt// . . If tho guardian of an infant defendant, or the next friend of an infant plaintiff, does not do his duty, or other sufficient ground bo made out, • Jamtis V. Robertson, 1 Cham. R. 197. " ■■ • i.,. 9 Aikin8 V. Blain, 1 Cham. R. 249. ' , « Commawtier V, to V. •Tarmore, 1 Cham.;R. 38. , /■ the Court wi that infants adults; thus part of the ij infants are ci whether it i pronounced i authority as thereupon \m an order for i without woul Tho Court ad litem : thui administratio solicitor for t defendants, af bj leave of th matle to chan/ into the paper! should bo app( take measures a guardian ad that the notice weeks to appei 1863, (the infa the guardian i decree. * An infant t person of full i I a defendant wl unless upon th •IS fraud, coll us The general iidult, bound b^ To impeach ; may proceed bj ' levy V. Levy, 3 M * WcUl\.BusM>y,\ 13W.R.116,L. ° Fletcher v. Boewt ' Hamilton v. Ham ' M'DougaU v. BeU INFANTS. m tho Court will remove him.' It was said by Sir John Leach, V. C.,^ that infants are as mnch bound by tho conduct of their solicitor as adults ; thus, an issue devisavit vel non may, it seems, be waived on the part of tho infant. ^ And so, although the Court usually will not, where infants are concerned, make a decree by consent, without an inquiry whether it is for their benefit, yet when once a decree has been pronounced without that previous step, it is considered as of tho same authority as if such an inquiry had been directed, and a certificate thereupon made that it Avould be for their benefit. In the same manner, an order for maintenance, though usually made after an inquiry, if made without would be equally binding. < Tho Court will in a proper case, sot aside an appointment of guardian ad litem ; thus, where a suit had been instituted by a creditor for the administration of the estate of a party deceased, and the agent of the solicitor for the plaintiff was appointed guardian ad litem to the infant defendants, after a sale of lands under the decree, at which the plaintiff, by leave of tho Court, had bid off a portion of the lands, a motion was made to change tho name of the pm'chaser. The Court upon looking into the papers refused the application, and directed that a new guardian should be appointed, who, unless the parties consented thereto, was to take measures to set the proceedings aside.* And an order appointing a guardian ad litem was set aside for irregularity, where it was shown that the notice of motion, for the appointment did not allow the infant six weeks to appear and show cause, as required by Order 6, of 10th January, 1863, (the infant as well as his father being resident in Montreal) but the guardian thus irregularly appointed, was allowed his costs up to decree. 8 An infant defendant is as much bound by a decree in Equity as a person of full age ; therefore, if there be an absolute decree made against a defendant who is under age, he will not be permitted to dispute it, unless upon the same grounds as an adult might have disputed it ; such as fraud, collusion or error. The general rule is clear that an infant plaintiff is equally with an adult, bound by proceedings in a suit institued by him.' To impeach a decree on the ground of fraud or collusion, the infimt may proceed by original bill. He may also impeach a decree, on the ' Euml V. Sharpe, IJ. & W. 482. ' TiUotmn v. Ilargrave, 3 Mad. 494 ; see Morrison v. Morrison, 4 M. & C. Slti, 226. ' Levy V. Levy, 8 Mad. 245. « Wall V. BusMy, 1 Bro. C. C. 484, 488 ; and eee Brook v. Mostyp, 10 Jur. N. 8. 564, M. R. ; ib. 1114 ; 13W.R. 116,L.JJ., as to compromiBee with the Court's sancUon, where infants arc interested. ° Fletcher v. Bosworth, 6 Grant. 448. • Hamilton v. Hamilton, 3 Cham. R. 160. ' ^'Z)OMgra« V. JB««, 10 Grant, 288. 'I O i il 130 PERSONS A0AIN8T WH03I A SUIT MAY BE INSTITUTED. ground of error, by original bill ; and ho is not obliged, for that purpose, to wait till he has attained twenty-one. > Among the errors that have been allowed as sufficient grounds on which to impeach a decree against an infant, is the circumstance that,. in a suit for the administration of assets against an infant heir, a sale of the real estate has been decreed before a sufficient account has been taken of the personal estate.^ And so, if an account were to be directed against an infant in respect of his receipts and payments during his minority, such a direction would bo erroneous. » Another ground of error for which a decee against an infant may be impeached is, that it does not give the ini'int a day after his coming of age to show cause against it, in cases where he is entitled to such indulgence.* Upon the re-hearing of a cause where the decree of foreclosure did not reserve a day to the infant, it was Jieldper Cur, (Blake 0. dissentin^^ that in decrees of foreclosure against infant defendants, a day to show cause, after attaining twenty-one, must be reserved to the defendants.^ But in a decree against an infant defendant as trustee of real estate, i is not necessary to reserve a day for the defendant to show cause after attaining twenty-one. « In a later case' it was held by the Chancellor, that when a decree had been made against the ancestor of infant defend- dants, in a suit revived against such infant defendants, that the decree having been made in the lifetime of the ancestor, it was not necessary to insert in the final order a day to the infants to show cause. The decree being binding on the ancestor must bo so on the infants ; and he observed that it was, he thought " originally intended to give the infants a day to show cause, where a conveyance was required from him, and this seems to have been extended to foreclosures of his mere equity." Besides the cases in which a conveyance was required from an infant, there was one case in which the decree was not made absolute against him until he had attained twenty-one, namely, the case of a legal fore- closure ; 8 and it appears that, in this case, it is still necessary to insert in the decree a clause allowing the infant six months after he comes of age, to show cause against the decree." It is to be observed, however, that in cases of foreclosure, the only cause which can bo shown by the ^ Uichmoiidy. Tayleur, IV. Wma.lSH; Brook V. MostyiifUbi sup. ■ '. i' » Bennett v. IlamiU, 2 Sch. & Lef. 566. 3 Hindmarsh v. Soutkgate, 3 Riisa. 3'24, 337 ; see Stoit v. Meanock, 10 W. R. 005, bis, L.JJ. * Bennett v. Jlamill, ttbi sup. * Mair v. Kerr, 2 Grant, 283 ; aflirmed on appeal, 26th February, 1852. • Lake v. M'lntosh, 7 Grant, 532. ' SuUierland v. Dickson, 2 Cham. R. 25. • Booth V. Rich, 1 Vern. 898 ; Williamson v. Gordon, 19 Ves. 114 ; Anon. Mos. 66 • Bennett v. Edwards, 2 Vern. 392; Price v. Carver, 3 M. & C. 101. » Newbury v. Marten, 18 Jur. 166, V. C. Ld. C. ; Yates v. Crewe, Selon, 685 ; and aee Jbid. 689 ; bui aeo Fiiiber on Mortgages, 631. INFANTS. 131 defendant is error in the decree ; and it has been held, that he may not unravel the account, nor is ho so much as entitled to redeem the mort- gage by paying what is due.'- Tho clause, giving the infant a day to show cause against a decree of foreclosure after attaining twenty-one, must be inserted in the order for making the decree absolute, as well as in the original decree ; and in Williamson v. Gordon," an order was made, upon motion, for varying a decree, in which the clause had been omitted, by directing its insertion. It was said by the Court in Booth v. Mich,^ that where there is an infant defendant to a bill of foreclosure, the proper way is to decree the lands to be sold to pay the debt, and that such a sale would bind the infant; but in Goodierv. Ashton,* Sir William Grant, M. E., said, that the modern practice was to foreclose infants, and refused to refer it to the Master to inquire whether a sale would be for the benefit of the infant. In a subsequent case, however. Lord Eldon said,^ it would be too much to let an infant be foreclosed when, if the mortageo would consent to a sale, a surplus might be got of perhaps £4000, considered as real estate for the benefit of the infant. His Lordship accordingly made a decree, by which it was referred to the Master, to inquire and report whether it would bo for the benefit of the infant that the estate fihould bo sold. In that case, the reference was to be made only in case the mortgagee consented ; and the same appears" to have been the order in Pace v. Marsden;'^ but in WakeMm v. Lome, and Hamond v. Bradley,'' like decrees appear to have been made, without its being stated that they were made by consent, or oven that a sale was prayed. It is to be observed also, that in those cases, as well as in Pace v. Marsden, the ilecree was made for a sale, without a previous reference to inquire whether it would be for the benefit of the infant. In Pace v. Marsden, however, it seems that a sale was prayed by the bill. In Price v. Carver,^ Lord Cottenham seems to have suggested, that a decree fo^" sale was the proper course, as against an infant defendant ; and in the event of such a decree, it would appear that no day to show cause is given." Now, however, in all foreclosure suits, the Court is empowered, if it thinks fit, to direct a sale, instead of a foreclosure ; and where it ' Mallack v. GMoth 3 P. Wms. 352 ; Lyne v. WiUis, ib. n. [B] ; Bishop of Wincheskr v. Beavor, 3 Ves. 314, 317. This, however, must not be underBtood as applying to cases where the decree lias been obtained by A-aud, or where the infant claims by a title paramount to the mortgage. ' 19 Ves. 114. ' lVem.295. : f*;--: r:j. • ', ■%• • . •• , ' > . - '■■'-' ■ '■, '_ ■ < 18 Ves. 84. » ^ondey V. jtfbntfey, 1 Ves. & B. 228. ' Seton, 275, Ist ed. " V ' Md. «8M. &0. 157,161. ' • » Schol^eld V. HeaJMd^ 7 Sim. 669 ; 8 Sim. 470 ; Davis v. Dowding, 2 Keen, £46. ■i t c p i t t 132 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. is for tho bonofit of tho infant, it is the practice to do so.' Whoro the valiio of tho mortgaged property was clearly less than tho amount duo to tho mortgagee, tho Court, at the hearing, made an absolute decree for foreclosure against an infant defendant, upon the plaintiffs paying the infant's costs.^ Mcro irregularities and errors in the proceedings of tho Court will not invalidate a sale, or prevent a good title from being made under a decree ; 3 it seems, however, that if there is a material error in substance, as well as in words and form, a purchaser may object to tho titlo, and the Court will discharge him from his contract. Thus, in the case of Calvert V. Godfrey,'^ where a sale of an infant's estate was ordereil, merely because it was beneficial to the infant, and without there being any person who had a right to call upon tho Court to sell tho estate for the satisfaction of a claim or debt. Lord Langdalo, M. E., considering 1^ ' . h an order was not within tho jurisdiction of the Court, allowed f, i' Jon to tho title, made in consequence of tho iiTCgularity of the decree. ' TYhore .n/i answer is put in on behalf of an infant, it is put in "uiwii the o.i.It oi liio porson appointed his guardian ;s but the infant is not bound by such answer, and it cannot be read against him : the true reason of which is, because in reality it is not tho answer of the infant, but of the guardian, who is the person sworn, and not tho infant; and the infant may know nothing of the contents of the answer put in for him, or may be of such tender years as not to bo able to judge of it.« This being the case, it would be useless, and occasion unnecessary expense, to call upon an infant to put in a full answer to the plaintitt's bill;"' and it is, therefore, held, that exceptions will not lie to the answer of an infant, for insufficiency. « It is not noAV the practice to require any answer from an infant. Formerly, when an answer from every defendant was necessary, an infant's answer was generally confined to a mere submission of his rights and interests in tho matters in question in tho cause to the care and protection of the Court ; tho infant might, however, state in his answer anything which he meant to prove by the way of defence ; » and he may now file a voluntary answer for this purpose, whenever it is for « Meara v. Best, 10 Hare, App. 51 ; Siffkin v, Davis, Kay, App. 21. « Croxm V. Lever, 10 Jur. N. 8. 87 : 12 W. R. 237, M. R., foUowing BiUson v. Scott. Setoii, 686, v. C.W. » Calvert v. Godfrey, 6 Beav. 97, 107 ; Baker v. Sowter, 10 Beav. 343, 8-18. « 6 Beav. 97, 109. Now, however, the Court has statutory power to ecU infants' settled estates. » Ld. Red. 314. m-o«c«tej/ V. B«/i''e«A, 3 P. Wms. 286. ^ \ Strudwick v. Pargiter, Bunb. 338. Copeland v. Whcder, 4 Bro. C. C. 260 ; Lucas v. Lucas, 13 Ves. 274 ; Ld. Red. 818. Ter Richards, C. B., in Attorney-General v. Lambtrth, 5 Fri. 398. Infants. 133 his benefit so to do, as in many cases it may be;' but whatever admissions there may be in the answer, or whatever points may be tendered thereby in issue, it appears that the plaintiff is not in any degree exonerated from his duty in proving, as against the infant, the whole case upon which he relies»2 When an answer has been put in by a guardian on behalf of an infant defendant, and the infant comes of age, and is dissatisfied with the defence put in by his guardian, he may apply to the Court for leave to amend hiH answer, or to put in a new one; and it seems that this privilege applies as well after a decree has been made as before.' An infant, however, wishing to make a new defence, must apply to the Court as early as pc^ssiblo after attaining twenty-one ; for if he is guilty of any laches, his application will be refused." The same reasons which prevent an infant from being bound by his answer, operate to prevent his being bound by admissions in any other stage of proceeding, unless indeed such admissions are for his benefit. Thus, it was held that, where an infant is concerned, no case could be stated by the Court of Chancery for the opinion of a Court of Law : because an infant would not be bound by the admissions in such case.^ Upon the same principle it has been held, that an infant is not bound by a recital in a deed executed during infancy. « The consequence of this rule is, that where there are infant defendants, and it is necessary, in order to entitle the plaintiff to the relief ho prays, that certain facts should be before the Court, such facts, although they might be the subject of admission on the part of adults, must be proved against the infants.' For the same reason, where a will relating to real estate is to be established in Chancery, and the heir at law is an infant, it is always necessary to establish the due execution of the will by the examination of witnesses. From the report of the cases of Cartwright v. Gartwright, and Sleeman V. Sleeman, in Mr. Dickens' Reports, « it seems to have been held, that where the heir at law in an original suit, being adult, had by his answer ' Lane v. Ilardwicke, 9 Beav. 148. » /Wrfen V. fleam, 1 Beav. 445, 455 : 3 Jur. 428. ^' ' Kehallv. Kelsall, 2 M. & K. 409, 4l6; Snow v. Hole, 15Sim. ICl: lOJur.347; Codrington v. Johnstone, cited 1 Smith Pr. 675; Seton, 685. * Bennett v. Leigh, 1 Dick. 89. In the case of Bennett v. i>e, 2 Atk. 487, and 529, referred to in the margin of 1 Dick. 89 as 8. C, the application was made during the infancy, see post, and see Cecil V. Lord Salisbury, 2 Vem, 224 ; Morris v. Morris, 11 Jur. 260, V.C.K.B, Monifpenny v. Bering, 4 De G. & J. 175 : 5 Jur. N. 8. 661. " Hawkins v. Luscombe, 2 Swanst. 392 ; but it was done in Walsh v. Trevannion, 16 Sim. 178 : 12 Jur. 547. ' Milner v. Lord Harewood, 18 Ves. 214. ' }yilkinson v. Be(d, 4 Mad. 408 ; see also, Quantock v. BuUen, 5 Mad. 81, where the Court refused to allow evidence, taken before the infants were made parties, to be read against them; but see Baillie V. Jackson, 10 Sim. 167, as to accounts ; and see Jebb v. Tugivell, 20 Beav. 461. " 2 Dick. 545, 787. p 134 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. admitted the due execution of the will, but died before the cause was brought to a hearing, leaving an infant heir, who was brought before the Court by revivor, the will must be proved per testes against the in- fant heir. But in Livesey v. Livcsey, ' Sir John Leach, M. E., held, that the circumstance of the first heir having admitted the will, rendered it unnecessary to prove it against the infant; and in a subsequent case,^ Sir Lancelot ShadwoU, V. C, expressed himself to bo of the same opinion as the Master of tho Rolls, and said that he had referred to the entries of the cases of Sleeman v. Sleanan, and Cartwright v. Cartiiright, in the Registrars' book ; and that with respect to tho former, no such thing as is mentioned by the reporter appears to have taken place, but tho original heir having admitted the will, tho Court established it ; and with respect to the latter, all that was stated was, that on hearing the will and proofs read (not saying what proofs), the Court declared that the will ought to be established. ^ By the English practice, where an infant has a day given him by the decree, to show cause against it, the process served upon him at his coming of age is a writ of subpcena; but by our Orders" it is provided that " Where, by an order, a day is reserved for an infant defendant to show cause, it shall not be necessary to issue a subpcena to show cause against the order, but the plaintiff is to serve the defendant after he attains twenty-one years of age, with an office copy of the order, endorsed with a notice in the form set forth in Schedule W." If after this service the party does not appear within the time limited, the decree will be made absolute, upon an ex parte motion, supported by an affidavit of service of the order and notice, and evidence that the infant is of age." It is said above," that in cases of foreclosure, the olily cause w^hich can be shown by an infant after attaining twenty-one, against making the decree absolute, is error in the decree, and that he will not he permitted to unravel the account, nor even to redeem the mortgage on paying what is due. This strictness, however, must not bo understood as applying to cases in which fraud or collusion have been made use of in obtaining the decree.' Neither, it is apprehended, will the above rule apply to cases where the title claimed by the infant is paramount tho mortgage. Thus, in a case where an estate had been conveyed to the great-uncle and grandfather of the infant, as joint-tenants in fee, and > Cited 4 Sim. 182. . '; 1 " Lock V. Foote, 4 Sim. 132. * tiee also Robinson v. Cooper y 4 Sim. 131. Sncli a statement by an ancestor plaintiff, in a bill, is an admission binding on his infant heir : Hdlings v. Kirkhy, 16 Sim. 1S3. * Con. G. O. No. 536. * For Form of Order, absolute, see Seton 685, 689. . / ^ .;V . . * Ante. '■' ' ■'■','■■ ■' » Xoydv. if«n«/,2P. Wms. 73. . ^ - deed, to distui I against makini] Anon, Mo9. CO, f "^ INFANTS. 185 upon the death of the groat-unclo, tlio grand fiithcr, being tlio survivor, had mortgaged the estate, and died, leaving the infant his heir at law: upon a bill filed by the mortgagee against the infant to foi-eclose, the infant stated in his answer that the estate had been purchased and paid for by his great-uncle, who devised the same to his grandfather for life, with remainder to his heirs in tail, and so claimed the estate as heir in tail by a title paramount the mortgage ; but the Court decreed an account? and that the defendant should redeem or be foreclosed, unless he showed cause within six months after he came of age, on the ground that the grand- father being by the deed joint-tenant in fee Avith his brother, whom ho survived, must have appeared to the mortgagee to have a good title. The infant, however, when he came of age, upon being served with a subpa-na to show cause, moved for leave to amend his defence, by putting in a new answer, and swore that he believed he could prove that the mortgagee had notice of the trust for his great-uncle at the time he lent the money, which was a point not insisted upon in his former answer ; and the Court made the order. ' The reason of this distinction between the case of a claim by the infant paramount the mortgage, and that of a claim subject to the mortgage, is obvious ; for^in the latter case, it will be presumed that the Court would not have made the decree had it not been satisfied that the mortgage was properly executed, and, therefore, it would not be reasonable to allow a party, claiming subject to that [deed, to disturb the title which the mortgagee had acquired under it; ' but in the former case, the mortgage may have been properly executed, and the account taken under it may have been perfectly correct, and yet the mortgagor may not have had a title to make the mortgage : in which ease, it would not be just to preclude the infant from an opportunity of establishing a case which, from the circumstance of its not having been insisted upon in the infant's answer, was not properly submitted to the I decision of the Court at the time the decree was pronounced. In ordinary cases, where an infant has a day given him to show cause lagainst making a decree absolute, he may either impeach the decree on Ithe ground of fraud or collusion between the plaintiff and his guardian, lor he may show error in the decree. He may also show that he had Igrounds of defence which were not before the Court, or were not insisted lupon at the hearing, or that new matter has subsequently been discovered, [upon which the decree may be shown to be wrong. If the late infant seeks to controvert the decree on the ground of fraud or collusion, he is not bound to proceed by way of rehearing, but he nay impeach the former decree by an original bill, in which it will be enough for him to say, that the decree was obtained by fraud or collusion : Amn, Mo9. OC. 136 PERSONS AGAINST WHOM A SUIT MAT BE INSTITUTED. II lie may in like manner impeach the decree by original bill, even though his ground of complaint against it is confined to error. ' In such cases, it is not necessary for the infant to wait till he comes of ago before he seeks redress, but application for that purpose may bo made at anj' time.^ If the late infant seeks to impeach the decree, by showing Uiat he had grounds of defence which wore either not before the Court, or not insisted upon at the original hearing, ho might under the old practice, apply to the Court, either by motion or petition, for leave to put in a new answer; and it seems that such application might be made ex parte, and was a matter of course;' but under the present practice (unless an answer has been put in, or it is thought desirable to put one in, on behalf of the infant), it is conceived the form of the motion or petition will be, for leave to make a new defence. Although it was a matter of course, that an infant defendant to a suit, who had had a day given him to show cause against the decree after attaining twenty-one, might have leave to put in a new answer, yet, if he was plaintift' in a cross bill, and that suit or any part of it had been dismissed, he was not allowed to amend his cross bill, or to file u new one for the same matter.* He might, however, file a bill of discovery in aid of the case intended to be made by his answer ; and it seems that if he did so, the time of six months allowed by the course of the Court for a defendant to show cause why a decree should not be made absolute after he comes of age, was not so sacred but that in particular cases, and where the matter was of consequence, the Court might enlarge it; and, therefore, in the case of Trefmis v. Cotton,^ where a defendant, on attaining twenty-one, and being served with a suhpcena to show cause against a decree, filed a bill against the plaintiffs in the original suit for discovery, and applied to the Court to have the time for showing cause enlarged till the defendants to the bill of discovery had put in their answer, Lord King made an order, enlarging the time for three months after the six months were expired; and on that time being out, and the defendants not having put in a full answer, the time was twice enlarged upon motion quousque. It seems, however, from a subsequent notice of the same case/ that an infant, after he attaiuH ' Richmond v. Tayleur, 1 P. Wma. 737 ; Carew v. Johnston, 2 Seh. & Lef. 292 ; Brook v. ifosfyn, 10 Jar. N. S. 664. M. H. ; ib. 1114 ; 13 W. R. 116, L.JJ. In the case of grosa fraud or conuslon nsed in obtaining a decree, the Court will entertain an original bill for the purpose of impeacb- ing it, even though tlie party oomplaining was not an infant at the time of the decree pronounced ; Bee Loyd v. JUamel, it P. Wms. 78; Sheldon v. FOrtescue, 8 P. Wms. 111. 9 Richmond v. Tayleur, 1 P. Wms. 787; Carew v. Johnston. 2 Sch. & Lef. 292. » Fountain v. Caine, 1 P. Wms. 504 ; Napier v. Lord I^fflngham, 2 P. Wms. 401, Affd. 4 Bro. P. C. ed. Toml. S40 ; Bennett V. Lee, 2 Atk; 629, 631 ; KelsaU v. KeleaU 3 M. & K. 409, lin which the cases are reviewed. * Sir J. Napier v. Lady Ilfflngham Howard, cited Mos. 67, 68. « Mos. 203. • Mos. 308. INFANTS. 137 twenty-one, cannot controvert the original decree by anew bill praying relief, unless for fraud or collusion, or for error;' and that if he does so, the original decree may bo pleaded in bar to such new bill. Although, where a day is given to an infant to show cause against a decree, he need not, as we have seen,' stay till that time before ho seeks to impeach it on the ground of fraud, collusion, or error, =• yet, if he proceeds on the ground that he is dissatisfied with the defence which has been made, and wishes to make a new defence, he must, in general, wait till he has attained twenty-one before he applies ; because, if he should apply before, and there should be a decree against him upon the second hearing, he may with as much reason make similar applications, and 80 occasion i. linite vexation. This was the opinion originally expressed by Lord Hardwicke, in the case of Bennet v. Lee;* though he afterwards held, in the same case, that as the facts upon which the infant wished to rest his new defence were of long standing, and the witnesses were consequently very old, and might die before he came of ago, the infant might put in a better answer.* And so in Savage v. Carrol,^ leave was given to the infant defendant, upon the same grounds, to put in an «mended answer before attaining twenty-one ; but it was subsequently held in the same case,' that where an infant, before attaining twenty-one obtains leave to put in a new answer, he will thenceforth be considered as plaintiff, and as such will bo bound by the decree. • ' • ^ v.. Where an infant defendant on coming of age, having obtained leave to put in a new answer, did so accordingly, he might show that fact for cause why the decree should not be made absolute, and the plaintiff was obliged to proceed upon the answer according to the rules of the CouH in other cases. » The consequence of an infant putting in a new answer was, that, if it was replied to, ho might examine witnesses anew to prove his defence ; which might be different from w'hat it was before. » > Richmond v. Taylevr, 1 P Wms. 737. ' Ante. \. • Richmond v. Taylevr, 1 P. Wms. 737. ♦2Atk.487. 'iMd.582. • 1 Ball. &B. 648. . . • V '2BaU.&B.244. ^ ~ ' Cotton V. Trefusls^ Mos, 813. ' Napier v. Lord Efflngham, 8 P. Wms. 401, 403; and see Codringtonv. Johnstone, Seton, 686; it«/«o« V. A'etoa/l; 2 M. & K. 409, 416. 138 PERSONS AOAINST WHOM A SUIT MAY BE INSTITUTED. Section IX. — Idiots, Lunatics, and pcrso7is of iceak mind. An idiot oi* a lunatic may, as wo have seoii,' bo mndo a dofondant lo a suit, but then, where ho has been found of unsounil mind by inquisition, he must defend by the committee of his estate, who, us well as the idiot or lunatic whoso estato is under his care, is a necessary party to a suil respecting that OHtate." No oi'dor is required in the Huit to entitle the committee to defend ; but the committee must obtain the sanction of the Court, before defending, in the same manner as b institutiuj,' a suit.!* Usually the lunatic and his committee make a Joint defence to the suit ; but if it happens that an idiot or a lunatic has no committee, or the committee is plaintiff, or lias an atlverfse interest, an order shoukl bo obtained, on motion of course, supported by affidavit, appointing a guardian to defend tho suit;* audit is the same where ho is respondent to a petition, s Whore, after decree, tho committee died, and a new one was appointed, an order was made, on motion, that in all subsequent proceedings the name of tho new committee should bo substituted for that of the former;" where no decree had been made, such an order was refused.' Lunatics not so found by inquisition, » and persons of wo.'^^*' intellect, or who are by age or infirmity reduced to a second infanc nust defend by guaixlian : who will bo appointed on an applicatii... ^ motion, in the name of the jjorson of unsound mind ; and it is tho same in the case of a petition, where no suit has been instituted." Tho application must bo supported by affidavits proving the mental incapacity of the defendant," the fitness of the proposed guardian, and that he has no adverse interest." A co-defendant may be appointed, if he has no adverse interest;" but not the plaintiff, nor a married woman, nor a person resident out of tho jurisdiction." If tho guardian dies, it appears that similar evidence of mental in- capacity is necessary, in support of the application for the appointment » Ante. « Ld. Red. 30, 104 « Ante. * Ld. Red. 104 ; Sndl v. Hyat, 1 Dick, S87 ; Lady Hartland v. Atcfm'ley, 7 Bcav, 63 ; Worth v. McKemie, 3 M ' N. & G. 363 ; Snook v. Watta, Seton, 1251. For form of order, see Seton, 1251. 6 Seei?e Greaves, 2 W. R. 855 : 2 Eq. Rep. 516, L. C. & L. J. J, « Lyon V. Mercer, 1 S. & S. 356; Bryony. Twigg, 3 Eq. Rep. 62: 3 W. R. 42, V. C. K. T Sudd V. Speare, 3 De O. & S. 374. « Ld. Bed. 104 ; and see Bonfield v. Grant, 11 W. R. 275, M. R. » Ld. Red. 103; and see Newman v, Se^fe, 11 W. R. 764, M. R. ; but see Steel v. Cobb, ib 298, M. R. >» Re Greaves, 2 W. R. 855 : « Eq. Rop. 516, L. C. & L. JJ. »> Simmons t. Bates, 20 L. T. 273. '» Piddocke v. Smith, 9 Hare, 395; 11 Jur. 1120; and see Foster v. Cautley, 10 Hare. App. 94: 17 Jur. 870. «» SonMd V. Grant, 11 W. R. 275, M. R. ; Newman v. Selfe, ib 764, M. R. »* LadyHartiand v. Atcherley, 7 Beav. 53. II of a new gua death of the must also be liy summons. Where an a !•}• or on bel tho practice is an infant, wlii Tho order Lunacy;' and been irrogulai (lefondant, to direct an inqui The defenda the plaintiff an may be discha Ilia guardian's I to iidd them to The answer leommittee as h Itlie Court to ( J((W'.T/y,8 that jguardian, may Ihave been doubt( |t would be deci( Where tho inf ^llow time to fih The committoi Ibund by inquisi ihe ordinary cou Jhould first obtai All orders app ^rit Clerks' Offi ' See Needham v. Sm I ' Pidcocke V. Bouitbee YLeey.Jiyder,6MaA ySwFramptonv. Wt yibid. ■'Ld. tted. 315. * Prec. Ch. 229. v \' MickletAwaite v. Ai reported on this pi 369; H. L. I' Willyams v. Eddge, 1 I V. Coftft, 11 w. R. 2 •' Bralthwaite'B Pr. 47. IDIOTS, LUNATICS, AND PERSONS OV WEAK MIND. laft of a now guardian, to that required on the original application.' The death of the guardian, and titnesH of the pcrHon proposed in Iiis phioe, must alHo bo proved. The application whould be made by motion, =• (U' by summons. Where an application for the appointment of a guardian in to I)e made liy or on behalf of a defendant of unsound mind, or weak intellect, the practice istlie same as on the appointn)ent of a guai-dian ad litem to an infant, which has been already pointed out. The order is made under the jurisdiction in Chancer}-, and not in Lunacy;' and if the fact of the infirmity is disputed, or the order has been irregularly obtained, the plaintiff may move, on notice to the Idefondant, to discharge the order; and if necossar}', the Court will I direct an inquiry whothov i lo defendant is competent or not.* The defendant, on his recovroperty iH'lon/ijin^ to tho wife, she cannot bo proceeded ji^aitiHt wKhout \w\' husband, unloHs nhe lias obtained an order to aiiHwer separatcdj" ; in which cane, nho will bo liable to tho UHual procoHS of contempt, if she (loos not put in her annwer in conformity with tho order which nhe herself haw obtained." it irt to bo obHorved hero, that a feme coyt^r^ executrix or adminislra- trix in not conHiderod as Jiavini^ a Hoparato property in I ho asnotH of !icr testator or intoHtato; and upon thi8 ground. Lord Kldon, in Pannell v. Taylor,^ hold, that a writ of nc exeat regno, against a married woman sustaining that character, could not bo maintained. In that case, liiw Lordship had originally granted tho writ, upon tho authority of Moore V. Meynell,*' and Jernerjan v. Olftsse;'^ but upon further argument, lio was of opinion that it could not be maintained : observing, that if ho had 1)0011 apprised of tho circumstances of tho case of Moore v. Meynell (upon the authority of Avliich Lord llardwicko appears to have acted in Ji'megan v. (Jlasse), ho should Jiot have granted tho writ. Whore a married woman is living separate from her husband, and is not under his influence or control," or where sho obstinately refuses to join in a defonco with him,' tho Court will, upon tho application of the husband, give him leave to put in a separate answer. Tho application is mado.by motion, of which notice must bo given to tho plaintiff, » and must be supported by an affidavit of the husband," verifying tho cir- cumstances ; and process of contempt will then bo stayed against him for want of his wife's answer, and tho plaintiff must i)rocecd separately against tho wife. If tho separate answer of tho husband is received and filed at tho Record and Writ Clerk's Office, before an order for him to answer I 1 p p ' Anon. 2 VcB. J. 332. ' PoweU V. Prentice, Rldjc. 258. Husband and wife may defend a suit in forma pauperin, and tho order for leave to do 80 is, of uourBc, iV« V. /V«, 17 Jur. 571, V. C. S. .^ _. ' T. & R. 96, 103. ■ * 1 Dick 30. " Ibid. 107 : 3 Atlc. 409 : Anb. «i : and T. & R. 97, n. (b.) ; but Bee Moore v. Hudson, 6 Mad. 218 : 2 C. P. Coop. t. Cott. 245 ' Chambers v. BtUl.l Anst. SB9 ; Darry v. Catie, 3 Mad. 472 ; Oarey v. Whittingham, 1 8. & 8. 163; Gee V. Co<««, 8 M. & C. 180; Nichols v. Ward, 2 M'N. & O. 140. ' Ld. Red. 106, Pain v. , 1 Ca. In Ch. 296 ; Murriet v. Lyon, Bunb. 178 : Pavie v. Acourt, 1 Dick. 13. ' Wlietlier notice sliould bo given to the wife also, Q^are : see 1 S. & S. 168 ; 2 M'N. &, 0. 143. ' See Barry v. Cane^ 3 Mad. 472, n. -.i^'. 142 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. separately has boon obtained, it is an irregular proceeding ; ' and the plaintiff may move, on notice to the husband, that the answer may bo taken off the file for irregularity ;=* or he may sue out an attachment against the husband, for want of the joint answer ;" or he may waive the irregularity, and move, on notice to the wife, and an affidavit of the facts, that she may answer separately.* The husband, if in custody for not filing the joint answer, cannot clear his contempt by putting in the separate answer of himself: « he should move, on notice to the plaintiff, 8 supported by his own affidavit' of the facts, for leave to answer and defend separately from her, and that, upon putting in his separate answer, he may be discharged from custody. » Where a married woman claims an adverse interest," or is living se- parate from her husband,' " or ho is mentally incompetent to answer,' ' or she disapproves of the defence ho intends to make, ' " she may, on motion, ' ^ obtain an order to defend separately ; and if a husband insists that his wife shall put in an answer contrary to what she believes to be the fact, and by monances prevails upon her to do it, this is an abuse of the process of the Court, and he may bo punished for tho contemj)t. ' < Where a married woman is interested in an estate, and no joint ansAver is put in by herself and her husband within tho time limited, ajjplication may bo made to allow her to put in an answer separate from her husband ; the defendants to state why her answer is required. ' ' If the husband has put in his answer separately from his wife, under an order so to do ; » « or without an order, and tho plaintiff desires to waive the irregularity ; " cr an order has been made, exempting the husband from process for want of her answer ; * ^ or if she refuses to join with him in answering ;> » or if he is abroad ;2 o or if the suit relates to > Gee V. Cottle, .3 M. & C. 180 ; ' Nichols v. Ward, 2 M'N. & 0. 140 ; and sec Gareij v. WMttingham, 1 S. & S. 103 ; Lenaghan v. Smith, 2 Phil. B3!». » Gee V. Cottle, and Nichols v. Ward, vbi sup. » Gee V. Cottle, upt sup. Garey v. Whittingham, 1 S. & 8. 1G.3; Nichols v. Ward, 2 M'N. & G. 140. * Nichols V. Ward, 2 M'N. & G. 143, n. » Gee V. Cottle, 3 M. & C. 180. • Quare, if the wife should bo served : see 1 S. & S. 163; 2 M'N. & G. 143. ^ Barry v. Cane, 3 Mad. 472, n. 8 See Nichols v. Ward, 2 M'N, & 0. 143 ; Seton, 1255, No. 5. » Ld. Rod. 104 ; Anon. 2 Eq. Ca. Ab. 66, pi. 2. "• Ld. Red. 104; Budge v. Weedon, 1 W. R. 368, V. C. K., n. '» JE's» Woodward V. Con«ft«ir, 8 Jur. 649, V. C. W. 30 DtOois V. Hoki 8 Yern. 618 ; Bunyan v. Mortimer, 6 Mad. 378 ; LelKUy v. Taylor, 9 Sim. 362. ,/ MARRIED WOMEN. ■'•■',> 143 her separate estate, and she is abroad,' or they live apart;' or if the husband, from mental incapacity, is unable to join with her in answer- ing;" or if, after the joint answer is put in, the husband goes abroad, and the bill is amended, and an answer is required thereto ;* or if the fact of marriage is in dispute between the husband and wife:^ the plaintiff, where no order for her to answer separately has been obtained by her or her husband, ma}-, on motion, supported by an affidavit of the facts, obtain an order" that she may answer separately from her hus- band. Notice of the motion should be given to the wife ;' and if she is abrpad, an order for leave to servo her there with the notice is necessary, « and may be obtained on an ex parte motion. , ,.. By our practice a bill cannot bo taken pro confesso against a married woman unless an order for her to answer separate from her husband has been served upon her. But this rule applies only where the case is a proper one for a separate answer; for, where the plaintiff applies for an order against a married woman to answer separately, on the ground that the time for the joint answer of herself and husband had elapsed, and no answer had been filed, the order was refused, because it was not shown that the case was a proper one for a separate answer. » And before an order will hi made for a married woman to answer separate from hor husband, it must be shown that an office copy of the bill had been served upon her, and that she is in default for want of answer ; ' ° and it 1$ not necessary to serve the bill on a married woman (her husband being a co-defendant) before obtaining an order to answer separately, service on the husband alone being sufficient. • ' The husband must be served before the wife will bo ordered to answer separate I3' ; and it makes no difference that the husband cannot bo found, for the orders of Court provide for such cases by advertizing the defendant. ' 2 "Where service of an office copy of the bill had been accepted by a solicitor on behalf of the defendant Sharpe and his wife, and a written consent was given by such solicitor, that in the event of no answer being filed, the bill might be taken pro confesso, it was held, that this did not dispense with an order for the wife to ansAver separately, and apart from her husband, before proceeding to take the bill j)ro confesso. ' " The time within which 1 Nichols V. Ward, 3 M'N. & 0. 143, n. ' ' * ' Wickens v. Marchioness of Townsend, cited, 1 Smith's Pr. 410, n. ; Seton, 125(5. ' Estcmirt v. Ewington, 9 Sim. 253 : 3 Jur. 414. < C«r/eton V. iTJ'nz/e, 10 Ves. 443. ' Ion<7tcor ;. , , , ; In Butter v. Baldwin,^ the Court agreed clearly, that a wife can never be admitted to answer, or otherwise as evidence, to charge her husband ; and that where a man marries a widow executrix, her evidence will not be allowed to charge her second husband ;3 but in that case, the wife having held herself out as &feme sole, and treated with the plaintiff and other parties to the cause, who were ignorant of her marriage, in, that character, and it having been proved in the cause that on some occasions the husband had given in to the concealment of the marriage, the Court allowed the answer of the wife to bo read as evidence against the husband, and decreed accordingly. . . . , . - , ,, It was supposed that the admission of a will, in the separate answer of a married woman, who was the heiress-at-law of the testator, was sufficient evidence to enable the Court to declare the will established ;♦ but it has now been decided, that such evidence is not sufficient for that purpose, or to bind her inheritance. » As a general rule, however, the separate answer of a married woman may be read against her. « Where a husband and wife are made defendants to a suit, relating to Ipersonal property belonging to the wife, and they put in a joint answer, [such answer may be read^ against them, for the purpose of fixing them I with the admissions contained in it ; but where the subject matter Irelates to the inheritance of the wife, it cannot;' and the facts relied jupou must be proved, against them by other evidence. Thus, in Merest h. Hodgson,^ theL. C. B. Alexander refused to permit the joint answer of ^he husband and wife to be read, but ordered the cause to stand over, give the plaintiffs an opportunity of proving the facts admitted. Lnd it has been held, that the joint answer of the husband and wife my bo read against the wife with reference to her separate estate, as > Barron v. GriUard, 3 V. & B. 165. » 1 Eq. Ca. Ab. 227, ^1. 15. ' See Co/e V. Gray, 2 Vern, 79. > . .,.. *Codringlonv.EarlqfSMburn,ZJilck.il5. ' Brown V. ZTayward, 1 Hare, 432 : 6 Jur. 847. ; • • Ld. Red. 104, 105. ' Evans v. Gogan, 2 P. Wms. 449. 9 Pri. 63; Bee also JElston v. Wood, 8 M. &. K. 678. |-^> c p i 148 PERSONS AQAINST WHOM A SUIT MAY BE INSTITUTED. woU as hor Bopnrato answer, on the ground tlmt in such a case kIio tannot bo eompollod to answer separately.' From the report of the ease of Eytm v. Eyton,^ it appears, on first view, as if the separate answer of a husband hatl been a Lord Cot- Icnham entered into the principles upon wliich JiJquity enforces tlu; contracts of married women against her separate estate, and rejected the theory that such contracts are in the nature of executicuis ol'a power of appointment: he observed, "The view taken by Lord Thr.rlow, in Jfuline v. Tenant, is more correct. According to that view, the separate property of a married woman being a creature of Equity, it follows, that, if she has power to deal with it, she has the otluu' power incident to property in general, namely, the power of contracting debts to bo paid out of it; and inasjnuch as her creditors have not the means at Law of compelling payment of those debts, a Court of Equity takes upon itself to give otfect to them, not as personal liabilities, but by laying hold of the separate property, as the only means by which they can be satisfiAjd ; " acting upon this principle, Lord Cottenham referred it to the Master, to inquire what debts there were to be paid under tlie provisions of the will. In order to bind her separate property, however, there must bo a contract, fraud, or breach of trust; but the contract, it would seem, need not be in writing.^ ";, Whore tho Coiu't thought a married woman defendant ought to pay certain costs, and it did not appear that she had separate estate, tho Court gave the plaintiff liberty to apply for payment of these costs, in case of any monies becoming payable to her separate use." Ifthocquity of redemption of a mortgaged estate comes to a married woman, and a bill is brought against her and her husband to foreclose it, upon which a decree for foreclosure is pronounced ; the wife is liable to be absolutely foreclosed, though during the coverture, and will not have a day given her to redeem after her husband's death ;* and where a widow tiled a bill to sot aside a decree of foreclosure pronounced against her and her husband during coverture, and to bo let in to redeem, and the mortgag(?o pleaded tho proceediugs^and decree in the former cause, tho plea was allowed.* h u: . )• » C. &P.48,54: 4Jur. 1151. " Vaughan v. Vanderstegen, 2 Drew, 165, 868 : Hobday v. Peters, (No. 2), 28 Beav. 354 : C .Tur. N. S 7!»4 ; Wright v. Chard, 4 Drew. 673 : 5 Jur. N. S. i;»4 : 1 Do G. F. & .J. 567 ; 6 .Tur. N. S. 476 : Clive V. Carew, 1 J. «& H. 199 : 6 Jar. N. S. 487 ; Johmton v. Oallager, 7 Jur. N. S. 273 ; 9 W. R. 506, L. JJ. ; Bolden v. Mcholay, Jur. N. 8. 884, V. C. W. . . . . 3 Petnberton v. W Gill, 1 Jur. N. 8. 1046, V. C, W. ' ' " ' * Mallack i.]Galton, 3 P. Wms. 352; bat tho decree ought not to be mndc absolute at once, oven by consent, on an affidavit vertifying the amount due, Harrison v. Kennedy, 10 Hare, App. 61. '■ MaUacky.Qalton,^V.V Burk V. Crosbiey 1 Ball & B. 489; Kennedy v. Daly, 1 Sch. & Lef. 3S6. " Elliot V. Ince, 7 De G. M. & G. 476 ; 3 Jnr. N. 8. 697. » Ld. Red. 59 ; Shelderry v. Brlggs, 2 Vera, 849 ; 1 Eq. Ca. Ab. 1, pi. 4 ; Durbaine v. Knight, 1 Vera. 818 ; 1 Eq. Ca. Ab. 126, pi. ■». ♦ Ld. Red. 68 ; Wharan v. Broughton, 1 Ve§. S. 182 ; and «ee iSapte v. Ward, 1 Coll. 26. » Mole V. Smith, IJ. & W. 666, 668. j^,. PARTIES HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 161 Lord Eldon, although ho recognized the principle laid down by Sir Thomas Plumer, said, that ho should have been inclined, in that case, to have come to a different decision, as he thought that it wouUl have been difficult for the widow, in her answer to the supplemental bill, to state her case differently from the way in which it had been stated in her former answer. ' It is conceived that under the present practice, however, it would not be hold necessary for the plaintiff to take any step in the cause, in order to enable a widow to raise a new defence. It follows, from what has been before stated, that where a man and his wife are defendants to a suit, if the wife dies there will be an abate- ment of the suit. Thus, where a man having married an administratrix tiie plaintiff obtained a decree against him and his wife, after which the wife died : it was held, thatthd suit was abated, and that the new admin- istrator ought to be made a party, before any further proceedings could be had in the cause. 3 s , "i: ' •; m v,..*! I 1 '■"; '<■':■■ . •J-kj' ■■ CHAPTEE ir_ 1- , PARTIES TO A SUIT. ■U:'\ , . ,,I .;•,-; >■■■ ;:■'•■■ ^ a It^'i Section 1. — Necessai^ Parties, in respect of the Concurrence of their Interests with that of the Plaintiff. - It is the constant aim of a Court of Equity to do comj)lete justice by deciding upon, and settling, the rights of all persons interested in the subject of the suit, so as to make the performance of the order of the Court perfectly safe to those who are compelled to obey it, and to prevent future litigation. ^ For .this purpose, all persons materially interested in the subject ought generally to be made parties to the suit, either as plaintiffs or defendants- or ought, by service upon them of a copy of the bill, or notice of the decree, to have an opportunity afforded of making themselves active parties in the cause, if they should think fit. > Mole V. Smithy Jac. 490, 495. ' Jackson v. Bawlins, 2 Vera. 195; ib. Ed. Raithby, n. (2). ' Ld. Ked. 163; Richardson v. Hastings, t Beav. 323,326; Hare v. London and North-Western liailway Company, 1 J. &. H. 262. It Mems, however, that, under the modern practic. the Court la less unwilling to relax the general rule in special cases, Ford v. Tennant, 29 Beav. 452 ; 7 Jut. N. S. 615, L. JJ. 5 181 PARTIKS TO A SUIT. Tho Strict application of this rule, in many cases creates difficultios: which have induced iho Court to relax it; and, as wo shall see, it has lon^ been tho established practice of tho Court, to allow a plaintiff to 8U0 on behalf of himself and of all tho others of a numerous class ol which ho is one, and to make one of a numerous class (as tho members of a joint-stock company,) the only defendant, as roprosontin/^ tho others, on tho allegation that they are too numerous to bo all miulo parties; and, in addition, tho Court is now enabled, whenever it thinks fit, to adjudicate upon questions arising between parties, without making other persons who are interested in the property in question, or in other property comprised in the same instrument, parties to tho suit.' When tho Court acts on this power, the absent parties are not bound by tho decree ;» whereas, in the cases first alluded to, tho absent parties are generally bound. ^ , Our Order No. 67, of the Con. G. Orders is taken from S. 61, of the Imp. Sta. 15 & 16 Vic, and declares that " Where questions arise be tween parties, who are some only of those interested in tho property respecting which the question arises ; or where the property in question is comprised with other property in tho same settlement, will, or other instrument, or is tho property of an intestate, the Court may adjudicate on tho questions arising between such parties, without milking- the other parties interested in the property respecting which tho quewtioii arises, or interested under tho settlement, will, or other instrument, parties to the suit, and without requiring the whole trusts and purposes of tho settlement, will, or instrument, or the whole estate of tho intestate, to be executed or administered under tho direction of the Court, and without taking the accounts of the trustees or other accounting parties, or ascertaining the particulars or amount of the property touchinj; which the question or questions have arisen, or of the whole estate or assets ; but where the Court is of opinion that the application is fraiulu lent or collusive, or that for some other reason the application ought not to be entertained, it may refuse to make the order r>ravod." The application of tho general i'ule abo^ r^ jrred lo, will be con. sidered : first, with reference to those who is are conmrrent witli the rights of the party instituting the suit id secondly, \\ a reference to those who are interested in resisting the |,i!iintift s claim. With respect to the first class, it is to be obsei \'ed, that (subject to > 15 & 16 Vic. c. 86, 8. 61. The Court acted on this power in tlie case of Parnell v. Mnggton, 8 Sn. & G. 337, which is believed to be the only reported case in which it has done so; sec also Swall&w V. Binm, 6 Hare. App. 47 : 17 Jur. 296 ; Lanham v. JPtrie, 2 Jur. N. S. ia01,..V. C S.; | Prentice v. Prentice, 10 Hare, App. 22. » Doody V. Riggings, Hare, App. 32. 3 Barker v. Walters, S Beav. 93, 97.. This in England is done under the Imp. Sta. 15 &16, Vi' 86. Our orders 53, 54, and 55, are taken from this Statute. PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFI-'. 153 1 ■ tho provisionH of the lato Act above pointed out,) in all casoH whoro a party comcrt to a Court of Equity to seek for tho roliof which the princi- ples there tictcd upon entitle him to recoivo, ho should l)riii<; before the Court all Huch parties as aro necessary to enable it to do coinpleto justice ; and that he should so far bind the rights of all persons interested in the subject, as to render the performance of the decree vvluch ho seeks perfectly safe to tho party called upon to perform it, by preventing his being sued or molested again respecting the same matter, either at Law or in Equity. For this purpose, formerly, it was necessary that ho should bring regularly before the Court, either as co-plaintiffs with himself, or as defendants, all persons bo circumstanced that, unless their rights were bound by the decree of tho Court, they might have caused future molestation or inconvenience to the jjarty against whom the relief was sought. . . But now, a plaintiff is enabled, in many cases, to avoid tho expense of making such persons active parties to tho cause, by serving them with notice of the decree under our General Orders. Tho practice arising under these orders will be stated hereafter : for, as it does not atfect the principle requiring all persons concurrently interested with the plaintiff to be bound by tho decree, but only substitutes, in some eases, an easier mode of accomplishing that end, it will be convenient, in the tirst instance, to consider what is the nature of those concurrent rights and interests, which render it necessary that the persons possessing them should be made either active or passive parties to a suit. In general, where a plaintiff has only an equitable right in tho thing demanded, the person having the legal right to demand it should be a party to the suit : for, if he were not, his legal right would not bo bound by the decree, ' and he might, notwithstanding the success of the plaintiff, have it in his power to annoy thp dofendant by instituting proceedings to assert his right in an action at Law, to which the decree in Equity, being res inter alios acta, would be no answer, and the defendant would be obliged to resort to another proceeding in a Court of Equity, to restrain the plaintiff at Law from proceeding to enforce a demand which had been already satisfied under the decree in Equity. This compli- cation of litigation it is against the principles of equity to permit ; and it, therefore, requires that, in every suit, all tho persons who Have legal rights in the subject in dispute, as well as the persons having the equitable right, should be made parties to the proceedings. Upon this ground it is, that in all suits by persons claiming under a trust, the trustee or other person in whom the legal estate is vested, is required to be a party to the proceeding. Thus, where an estate had > Ld. Bed. 179. . ,?'i 7.-;x7:" PARTIES TO A SUIT. been limited by a marriage settlement to a trustee and his heirs, upon trust, during the liv es of tae plaintiff and his wife, to apply the profits to their uso, with remainder to the children of the marriage, with remainders over, and a bill was brought by the persons interested under that settlement to set aside a former settlement, as obtained by fraud, it was held, that the plaintiff could have jo decree : because the trustee was not a party ; » and where it appealed that a mortgage had been made to a trustee for the plaintiff, it was dettrmincd that the trustee was a necessary party to a suit to foreclose the eo[uity of redemption. = The rule is the same whether the trust be expressed or only implied; as where the executor of a mortgage files a bill to foreclose a mortgage of freehold or copyhold estate, he should make the heir-at-law of the mortgagee a party : ^ because, although according to the principles upon which Courts of Equity proceed, money secured by mortgage is con- sidered as part of the personal estate of the mortgagee, and belongs on his death to his personal representative, yet, as the legal estate is in the heir, he would not, unless he was before the Court when it was pro- nounced, be bound by the decree. Another reason why it is necessary to bring the heir before the Court, in a bill to foreclose a mortgage, is, that if the mortgagor should think proper to redeem the estate under the decree, he will be a necessary party to the reconveyance.* And so important is it considered, in such a case, that the heir should be a party, that where a mortgagee died without any heir that could be discovered, the Court restrained his executor from proceeding at Law to compel payment of the mortgage money, and ordered the money into Court till the heir could be xound.* . ,. . ' ' The rule however in this Province is just the reverse, for it has been decided that the heirs of a deceased mortgagee, or the persons benefi- cially interested under hU. mil, are not necessary parties to a suit for foreclosure ; « the parties being to allow the real representative to be made a party in the Mabter's office ; and as the only purpose for whicii he can be needed as a party ,Js that he may convey in case of redemption, he is thus made a party at as early a stage of the suit as is necessary. » 9 Mod. 80. » Wood V. miliams, 4 Mad. 180 ; Hicfiem v. Kelly, 3 Sm. & G. 204. 3 Scott V. mcMl, 3 Rubs. 476. « Wood V. Williams, 4 Mad. 186. » Schoole V. Sail, 1 Sch. & Lef.' 177. The reeult of this case was, that after the cause had remained gome years In Court, it was thoug^ht wortJi while to get an Act of Parliament to revest the estate, on an allegatio.i that the heir could not be found. Soe also Stokoe v. liobson, 3 V. & B. 51 : 19 Ves. 385 ; Smith v. BickneU, 3 V. & B. 51, n. ; Schdmardine v. Harrop, 6 Mad. 89. Thp diffi- culty experienced in the case referred to is now met by the provision of the Trustee Act, IBaO, 8. 19, which enables the Court, in such a case, to vest the estate : and see lie Baden's Tnist, 1 De G. M. & G. 67: 9 Hare, 820; JRe Lea's Trust, 6 W. R. 4S« Y. C. W. ; but see Jie Hetvill, '4 L. J. Ch. 308 L. C. & L. JJ. • Lawrence v. Humphries, 11 Grant, 209. PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 155 The heir, however, is only a necessary party where nothing has been done by the mortgagee to affect the descent of the legal estate upon him. If the descent of the legal estate has been diverted, it is necessary to have before the Court the person in whom it is actually vested ; and therefore, where a mortgagee has devised his mortgage in such manner as to pass not only the money secured, but the legal estate in the pro- perty mortgaged, the devisee may foreclose, without making the heir- at-law of the original mortgagee a party.* ^ Upon the same principle, where a mortgagee in his lifetime actually asdgns his whole interest in the mortgage, even though the assignment be made without the privity of the mortgagor, the assignee alone may foreclose, without bringing the original mortgagee before the Court ;3 and where there have been several mesne assignments of the mortgage, the last assignee, provided the legal estate is vested in him, will be sufficient, without its being necessary* to bring , ae intermediate ones before the Coui't. ^ It is to be observed, however, taat in order to justify the omision of the intermediate assignees in the case of an assignment of a mortgage, the conveyance must have been absolute, and not by way of sub-mortgage : for if there be several derivative mortgagees, they must all be made parties to a bill of foreclosure by one of them. Thus, where A. made mortgage for a term of years, for securing £350 aud interest to B., who assigned the term to C, redeemable by himself on i)aying £300 and interest, and JB. died, and C, brought a bill against i. to foreclose him, without making the representatives of B. the original mortgagee, parties, it was held by the Court, that there was plainly a want of proper parties.* , , • .■ ,, .,, ,. , The principle that requires a trustee, or other owner of the legal estate, to be brought before the Court in suits relating to trust property, applies equally to all ases where the legal right to sue for the thing demanded is oatstandi jg in a different party from the one claiming the beneficial interest. Thus, where a bill is filed for the specific perform- ance of a covenant under hand and seal of one. for the ben'^fit of another, the covenantee must be a party to a bill by the person for whose benefit the covenant was intended, against the covenantor. * And so, in Co/;e v. Farry,^ which was a bill filed for the specific performance of a covenant for the surrender of a copyhold estate to A., in trust for others, L. C. B. Eichards, said, that as the effect of a sui'render, if the Court ^ ' Bmvolze v. Cooper, 6 Mad. 871 : 1 8. & S. 364. » Chambers v. Ooldwin, 9 Ves. 969. ' Ibid. * Hobart V. Abbot, 2 P. Wms. 648. » Cooke V. Cooke, 2 Vera. E6; 1 Eq. Ca. Ab. 78, pi. 8. « 2 J. & W. 688 ; and see SoUe Y. Tafe, YelY. * n ; 1 Bnlet. 26, b. M 156 PARTIES TO A SUIT. decreed it, would bo to give the legal estate to -4., he ought to be a party: otherwise, another suit might become necessary against him. The pi'ecocding English cases arose uppn covenants formally entered into under hand and seal ; the same rule will not, however, apply to less formal instruments, such as ordinar}'^ agreements not imder seal, where one party contracts as agent for the benefit of another. In such cases, it is not necessary to bring the agent before the Court ; because, even at law, it is the undoubted right of the principle to interpose, ami supersede the right of his agent, by claiming to have the contract performed to himself, although made in the name of his agent. This principle was acted upon by the Court of Queen's Bench in the case of the Duke of Norfolk v. Worthy \^ and in Bethune v. Farebrother," where the plaintiff, not wishing to appear as purchaser, procured J. S. to bargain for him, who signed the contract (not as agent), and paid the deposit by his own cheque : yet, inasmuch as it Avas the plaintiff's money, he was allowed to maintain an action for it, without showing any disclaimer by J. S. Upon the same principle, in Equity, if the plaintiff* had filed a bill against the vendor for a specific performance, ho would not have been under the necessity of making J. S. a party to the suit ; because, if he had succeeded in his object, performance of the contract to the plaintiff might have been shown in answer to an action at Law by J. S., whose title was merely that of agent to the plaintiff. It is, however, frequently the practice to join the auctioneer as co-plaintiff with the vendor, in suits for specific performance of contracts entered into at auctions; 3 but that is, because he has an interest in the contract, and may maintain an action upon it; he has also an interest in being pro- tected against the legal liability which he may have incurred, in an action by the purchaser to recover the deposit. In order to enable the plaintiff to dispense with the necessity for making the agent, entering into a contract for his employer in his own name, a ijarty to a suit to enforce such contract, the plaintiff must .state in his bill, and show by evidence, that tlie person entering into the contract was actually an agent, as appears to have been do7ie in BefhuM v. Farebrother,* by proving that, although the money was paid by the cheque of the agent, it was in fact the money of the purchaser. The fact of the person contracting being the agent of the plaintiff, may likewise appear from the contract itself; but if it does not appear froin the contract and the plaintiff is notable to show the agency, byproviug that the money was liis own, or some equally conclusive fact, he must | » 1 Camp. 337 ; Sugd. V. & P. 287. a Cited 5 M. & 8. 885. » SCO Cutis V. Thodei, 13 Sim. 306, 211 ; and seo 7 Ves. 289. * Ante, PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 157 make tho agont a party, either as co-plaintiff with himself or as a defendant, in order to bind his interest: for otherwise, such agent would have a right to sue, either in Equity for a Hpecific performance of the game contract, or to bring an action at Law for tho recovery of the money paid to the defendant ; and parol evidence on the part of the defendant wf uld, in either case be inadmissablo to show, in opposition to tho written contract, that the purchase was made on behalf of another. ' Tho same rule will apply, if tho agent contracted, as well on his own behalf, as in tho capacity of agont for another. In that event, the bill must bo filed in his own name, and in that of tho person on whose behalf ho acted, or at least such a person must be a party to the suit; and upon this principle, in Sinall v. Attwood," where a contract was entered into for the purchase of an estate, by certain persons in their own names, but in ftict on their own account and also as agents for other parties, a bill to rescind the contract was filed in the names both of the agents and of tho other parties for Avhom they contracted. With respect to the effect of a sub-contract, in rendering it necessary to bring the party concerned in it before the Court, in a litigation botvvcon the original contracting parties, the following distinction has been made : viz., if A. contracts with B. to convey to him an estate, and B. afterwards contracts with C, that he, B., will convey to him tho same estate : in that case, C. is not a necessary party to a suit between A. and B. for a specific performance; but if the contract entered into by B. with C, had been, not that ho, J?., should convey the estate, but that A. tho original vendor should convey it to C, then C. would have been a necessary party to a suit by B. against A. for a specific performance. =" Upon the principle above stated, it is presumed, that whore a man enters into a contract which is expressed in tho instrument itself to have been entered into by him as agent for another, he would not after- wards be allowed to ^nc for a performance of that contract on his own behalf, on the allegation that ho was not authorized to act as agent, without bringing the party on whose behalf it was expressed to be made, before the Court.* At Law it has been held, that a plaintiff under such circumstances could maintain an action, by procuring from the party on whose behalf he appeared to have entertained the contract, a renunciation of his interest.* It is to be observed hero that, although an agont entering into a contract in his own name, may be joined in a suit as co-plaintiff with iS i ' nartlett v, Pickersgill, 1 Cox, IfS ; 1 Eden, 515. ' Younge, 407, 455. ' V. WaUfwd, 4 Rung. 37S ; and NeUhorpe, v. Holgate, 1 Coll. 203, and the cases their clt Croft V. Waterton, 13 Sim. 653 ; but eoe 2 Phil. 553 ; Groves v. Levi, or Groves v. Lane, 9 Hare, App. 47 : 16 Jur. 1061. If necessary for the protection of ll»e estate, a bill praying an injunction and receiver, may be filed, although there is no personal representative, Steer v. Steer, 13 W.R. S25, V. C. K. ; but a bill filed before administration to protect the assets is demurrable, if It asks | an account, Rawlings v. Lambert, IJ. & U. 458. » Groves v. Levi, vbi sup. ; Silver v. Stein, 1 Drew, 295 : 9 Ilare, App. 82; see however, Mackmv Dawson, 27 Beav. 21, a09: 5 Jur. N. 8. 1091 ; Williams v. Page, 27 Beav. 373. s Ellice v. Goodson. 2 Coll. 4; Davis v. Chanter, iVhi\. 545,549; Devaynes v. Robinson, 24 Beav. 97, 98: 3 Jur. N. S. 707, 708; Maclean v. Dawson, ubi sup. : Williams v. Allen, 10 W.^i^'' L. Js., overruling S. C. 29 Beav. 292 : 8 Jur. N. S. 276. Faulkner v. Daniel, 3 Hare, 199, 207 ; Davis v. Chanter, ubi sup. Davis v. Chanter, ubi sup. : and Harris v. Millburn, 2 Hagg. 64, referred to, 2 Phil. 552. J?e;^ V. .(l/«a;antfer, 6 Hare, 643, 645. Kay. App. 12. Tarratt v. Uoyd, 2 Jur. N. 8, 371, V. C. W. SI Beav. 620. ^' PARTIES HAVma CONCURRENT INTERESTS WITH PLAINTIFF. 1C3 reported cases in which the Court has acted on this power, or has refused to do so. It has been determined, that the enactment extends to those cases wliero the estate to be represented is sought to be made liable ; ' and pending proceedings in the Probate Court, a representative has been appointed ;3 and, again, where the next of kin refused, or after notice neglected, to take out administration ;3 and where there was an executor, who had proved the will in India, but refused to prove it in England, the Court, appointed him to represent the estate* Where there arc other persons parties to the suit in the same interest as the deceased party, it is conceived that the Court will, generally, permit the suit to proceed, without any representative of the estate of such party ;s so, also, when j the deceased person was an accounting party, or without any beneficial interest, and died insolvent. « Before the late Act, in some cases, when it has appeared at the liear- I ing of a cause that the personal representative of a deceased person, not a party to the- suit, ought to bo privy to the proceedings under a decree, but that no question could arise as to the rights of such repre- sentative, the Court has, on the hearing, made a decree, directing pro- ceedings before one of the Masters of the Court, without requiring the I representative to be made a jjarty by amendment or otherwise ; and jhas given leave to the parties in the suit to bring a representative jbeforo the Master, on taking the accounts or other proceedings directed |by the decree.' Having now noticed the principal cases in which the Court has acted Ion the power given by the statute, those in which it has refused to do Iso will bo shortly referred to. It has been held, that the enactment Idoes not enable the Court to appoint a person to represent the estate, jor to proceed without one, where he Avould have to bo active in the execution of the decree which the Court is called upon to make ;» nor \rhere the whole adverse interest is unrepresented ;» nor where as re have seen, the general administration of the estate to be ivprcsented ' Dean and Chap, of Ely v. Gayford, 16 Beav. 661. ' Hele V. Lord Bexky, 16 Beav. 340. ' Tarratt v. Lloyd, ubi mp.: Ashmall v. Wood, 1 Jur. N. S. 1130, V.C.S. ; Davies v. Boulcoit, 1 Dr. & Sm. 23 ; see also Swallow v. Binns, 9 Hare, App. 47 ; 17 Jur. 295. • Sutherland v. Be Virenne, 2 Jur. N. S. .%1, V.C.S. See also Bliss v. Putnam, 29 Beav. £0 ; 7 Jur. N. S. 12 ; Mortimer v. Mortimer, 11 W. R. 740, M.R. ' Aln-eyy. Neioman, 10 Hare, App. 68 ; 17 Jnr. 153 ; Cox v. Taylor, 23 L. J. Cli. nio, V.C.K. ; Rucker V. Sckol^field, 7 L. T. N. S. 504, V. C. W. In Tarratt v. Lloyd, ubi sup., however, the Court appointed a representative. • Chaffers v. Headlam, 9 Hare, App. 46; Rogers v. Jones, 1 Sm. & G. 17; 16 Jur. 9G8 ; Leycester v. mrris, 10 Jur. N. S. 1173, V.C.K. See also Ashmall v. Wood, tibi sup., where in a similiir case a person was appointed to represent a deceased party ; and see Whittington v . Gooding, 10 Hare, App. 29. In Miles v. Hawking, 1 0. P. Coop. t. Cott. 366, which was a similar case before the Act, an objection for want of narties was overruled; see also Goddart v. Haslam, 1 Jur. N. S 251, V.C. W. ; and Madox v. Jackson, 8 Atk. 406. ' Ld. Bed. 178. • Fowler v. Bayldon, 9 Hare, App. 78. . . ' ffiJjwi V. TF<«», 81 Beav. 6?0. ; t F ■ o i 164 PARTIES TO A SUIT. ^ V fc.i«» ' PERSONS I is sought;' nor will tho Court direct money to bo paid to u jiorsonB'l^®'*^'^^ to be ra appointed under this soction.a • ' ' Blast trustee wan Tho 41th section of the Act expressly refers to other, proceedings, asB'"'' ought to be well as suits; and it has accordingly been held, that it applies toP""^ ^® ^'^*^*'"'®^^^ special cases and petitions. » The proper person to bo appointed under this section is the person who would be appointed administrator ad litem;* but the Courl will iioij appoint a person against his will.^ It would seem, that the plaintifl' may aj^ply for, and obtain, an ordcrl under the 44th section on motion, without serving tho other parties to tho cause or proceeding;* but notice must be given to tho porsons[ entitled to take out administration to tho deceased party;"' the Court can, however, make the order at the hearing. « The rule which requires that the trustees, or other persons havind the legal estate in the thing demanded, should in all cases bo before the Court, has, as we have seen, been adopted on account of the impossibilitj of otherwise preventing the assertion, of the legal rights, in Courts «l Law; for it has been said, that in some cases, where tho trustee b| had no beneficial interest in the property, and was not possessed ofi legal estate which he could set up at law to the annoyance of the! defendant in Equity, tho Court has permitted bills to bo filed by tie] cestui que trusts, without making such trustee a party : the cestui trusts undertaking for him that ho shall conform to such decree astlie| Court shall make.o In a recent case, however, new trustees of a settle' ment, who had been duly appointed, but to whom the trust propertyl had not been assigned or transferred, were held necessary parties to suit for carrying the trusts of the settlement into execution.'" Again, where a bill was filed to carry tho trusts of a will into execi tion, whereby, amongst other things, lands were limited to trustees for| a term of years, to raise a sum of money by w^ay of portions for youngei children, two of which j^oungor children had assigned their shares 1 For other cases where the Court has refuaed, see Bruito'i Maclean v. Dawson, 27 Beav. 21, 3G!>: 5 Jur. >:. S. 1091. liirch, 92 L. J. Ch. 911, V. C. £;| « Byam v. Sutton, 19 Beav. 640; Eawlim v. i/'il/a/ton, 1 Drew. 225; 9 Hare, App. 82; ./dm 'I >auZfte«, 10 W. R. 65, V. C. K. . . li- . i 3 Swallow V. Btnns, 9 Hare, App. 47; 17 Jur. 295; Ex parte Cramer, 9 Hare, App. 47. ♦ Bean of Ely y. Oayford, 16 Beav. 561; and see Hele v. Lord Bexleij, 15 Beav. 340; Ashmd^t Wood. 1 Jur. N. S. 1130, V.C.8.; Sutherland v. Be Virenne, 2 Jur. N. S. 301, V. C. S., whuJ the Court appointed the executor who liad not proved. See sXso Mortimer v. Mortimer, lUfl R. 740, M. R. » Prince of Wales Association v. Palmer,^ Beav. 605; IIill\, Bonner, ^Be&y.STi; Lonp Storie, Kay. App. 12. » Seton, 1179; Davies v. Boidcott, 1 Dr. &Sm. 23; see however, cow^m, Chc{fer8\. Headland Hare, App. 46. T Davies v. Boidcott, vbi sup. ; Tarratt v. Uoyd, 2 Jur. N. 8. 371, V.C.W. » Hewitson v. Todhunter, 22 L. J. Ch. 76, V.C.S. • Kirk v. Clark, Prec. Ch. 975. »• Nelson v. Seaman, 1 De G. F. & J. 368 : 6 Jur. N. 8. 258. who had the be make tho other man had oxecut and Iter childrer the benefit of all it was hold on d tain a suit to c( attorney with w trust was alleget For tho same r the assignor of assignee, yet th fte in ac*im n without bringing two joint cxecui residue and died, other executor f representatives o ofthereceiptof t evidence of the p Tho principle sue for the sam( defendant, shouk decision, apjjlies defendant arising that, at Law, an a the convenants, 1 ho derives title, lessee to institut without having t may be settled j granted a lease Jjtsop them in goo( wife ; and afterwf ' Bead v. Lord Teynfu " Knye v. Moore, IS.i ' Cator v. Croydon d U Beav. 503; Eulha pany, 7 Hare, 114 : : ^ Blake v, Jones, 3 Ans PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 165 the sum to be raised to a trustee for the benefit of the otliers, but which last trustee was not before the Court: the only question was, whether he ought to bo a party to the suit; and the Court was of opinion, that Mtho trustees of the term who had the legal estate, and all the children who had the beneficial interest, were parties, there was no occasion to make the other trustee u party.* Upon the same principle, where a man had executed a deed, providing, in case of his death, for a woman and her children, and had deposited it in tlie hands of an attorney for Ithe benefit of all parties, but afterwards procured possession of it himself, lit was held on demurrer, that the woman and her children could main- tain a suit to compel him to deliver up the deed, without making the 1 attorney with whom it was deposited, and against whom no breach of trust was alleged, a party. ^ For the same reason it has been held, that although, as we have seen, Ithe assignor of a chose in action is a necessary party to a suit by the assignee, yet the assignee of an equitable interest in the nature of a cte in action may maintain a suit for the assertion of that interest, without bringing the assignor before the Court. ^ Thus, where one of two joint executors and residuary legatees assigned his share of the residue and died, and afterwards his assignee brought a bill against the other executor for such share, the Court of Exchequer held, that the representatives of the assignor were not necessary parties, as the proof ofthorcceipt of the purchase-money by the assignor would be sufficient j evidence of the plaintiff's title. ^ The principle of the dourt, that the person having the lefjf.l right to [sue for the same matter which ho might enforce at Law against the defendant, should be before the Court at the time of its pronouncing its decision, applies to all persons who have legal demands against the defendant arising out of the same matter; thus, as it has been decided Ithatj.it Law, an assignee of a lease may bo sued for non-performance of Ithe convenants, both by the lessor and the original lessee from whom I he derives title. Courts of Equity will not permit either the lessor or I 'lessee to institute proceedings against him in respect of his covenants, without having the other before them, in order that the rights of both may be settled at the same time. Upon this ground, where a man granted a lease of houses for thirty years to B., who covenanted to Ikeop them in good repair, and died, having bequeathed the term tp his [wife; and afterwards, by mesne assignments, the term became vested in ' Head v. Lord Teynham, 1 Cox, 57. * Knye v. Moore, 1 S. & S. 61, 64. ' Catw V. Croydcm Canal Company, 4 Y. & 0. Ex. 405, 419 : 8 Jur. 277, L. C. ; Padwick v. Piatt llBeav.503; Fulhamv. McCarthy, 1 H. L. Ca. 708; Bagshato v. Eastern Union Itailway Com- pany, 7 Hare, 114 : 13 Jur. 608 ; afflrmed, 14 Jur. 491. ^ Make V. Jones, 3 Anst. C51. • <■¥' - ".f }l» PARTIES TO A SUIT. a pauper, but the houses becoming out of repair and the rent in arrcar, a bill was brought by the lessor against the assignee for repairs, and an account of tho arrears of rent : upon an objection being taken, that the executors of tho original lessee were not parties, the Lord Chancellor said, that to inake tho proceedings unexceptionable, it would be very proper to have them before tho Court ; for that it did not appear to him but that the plaintiff might have had a satisfaction at Law against tho executors, and, if so, tho plaintiif's equity would be their equity.' Tho same objection was allowed in the case of tho City of London v. Richmond^^ which was also tho case of a bill against tho assignee of a lease, for payment of rent and performance of covenants. / The rule which requires all persons, having similiar rights to sue at Law with that of tho plaintiff, to be brought before the Court, does ncit apply to a bill filed by tho last indorsee of a bill of exchange which lias been lost, against the acceptor : in which case it has been hold, that neither the drawer, =" nor the prior indorsees* are necessary parties: because, in such cases, tho ground of the application to a Court of Equity is the loss of tho instrument; and the Court only relieves upon the terms of tho plaintiff giving tho defendant ample security against being called upon again by tho drawer or indorsees, in case they should become possessed of the instrument. And it seems also, that tho drawer is not a necessary party, whore a suit is instituted by an acceptor against tho holder of a bill of exchange which is forthcoming, for the purpose of having it delivered up. 5 . Tho principle, that persons havo co-existent rights with the plaintiff to sue tho defendant must be brought before tho Court, in all cases where tho subject-matter of the right is to bo litigated in Equity, is not confined to cases where slich co-oxistent rights to sue are at Law ; it applies equally to cases where another person has a right to sue, foi' the same matter, in Equity : in such cases, the defendant is equal!}- entitled to insist that the person possessing such right should bo brought before tho Coui't before any decree is pronounced, in order that such right may be bound by the decree. Thus, where a bill was filed by a vicar against a sequestrator, for an account of the profits of a benefice, received during its vacation, it appears to have been thought by the Court, that the bishop ought to have been a party to tho suit, because the sequestrato;' was accountable to him for what he had received;' • Sainstry v. Grammar, 2 Eq. Ca. Ab. 165, pi. 6. . « 2 Vem. 421 : 1 Bro. P. 0., ed. Toml., 516. » Davies v. Dodd, 4 Prl. 176. ♦ Macartney v. Graham, 2 Sim. 285. » Earle v. Holt, 5 Hare, 180 ; eee however, Per\fold v. Nunn, 5 Sim. 406. « Jones V. Barrett, Bunb. 192. "*?■ PERSONS IIAVINO CONCURRENT INTERESTS WITJI PLAINTIFF. 167 and, on tho other hand, whoro ii bill was filed by a biwhop and a seques- trator against an occupier, for an account of tithes during tho lunacy of the incumbent, who had been found a lunatic under a commission, it was held that tho incumbent or his committee ought to have been a party.' It seems, however, that whore ?. living is under sequestration for debt, the incumbent may maintain a suit for tithes, without making tho sequostator, or tho bishop, a party. This appears to have been the opinion of the L. C. B., Lord Lyndhurst, in Warrington v. Sadler,' where a decree was made in a suit by a vicar lor tithes, although tho vicarage was under sequestration, and tho occupiers had actually paid certain alleged moduses to tho Kcqucstrator. Upon the principle above stated it is hold, that, in general, where a suit is instituted on behalf of a lunatic, either by tho Attorney-General or his committee, the lunatic himself must be a co-plaintiff: beciuso he may recover his senses, and would not bo bound by tho docrcu.' In the above cases, tho person required to bo party, had a concurrent right with tho plaintiff in tho whole subject of the suit ; the same rule, however, applies whore ho has only a concurrent right in a portion of it ; thus, where there are two joint-tenants for life, and one of them exhibits a bill, tho other must bo a party, unless tho bill shows that he is dead;* and where A., B. and C were joint lessees under tho City of London, and A. and B. brought a bill against tho lessors to have certain . allowances out of the rent, and it appeared upon the hearing that C. was living, an objection, because ho was not a party to tho bill was allowed ;'' and 80, where a bill is brought for a partition, either by joint-tenants or tenants in common : as mutual conveyances are decreed, all persons necessary to make such conveyances must bo parties to the suit ; <> and where one tenant in common had granted a lease of his share for a long term of years, tho lessee was held to be a necessary party to the suit, at tho expense, nevertheless, of his lessor, who was to be responsible for his costs.' Where, however, a tenant in common had demised his share for a long term of years, it was held that tho termor for years was entitled to file a bill for a partition against the other tenants in common, to endure during the term, without bringing tho reversioner of the share demised before the Court;* and so, it seems, where one of the parties is only tenant for life, ho may mantain a suit for a partition without ^ ' Bishop of London v. Nichols^ Bunb. 141. ' Tounge, 283. ' See ante. ♦ Haycock v. Haycock^ 2 Ch. Ca. 124 ; Weston v. Keighley, Rop. t. Finch. 82. ' Stc^ordy. The City of London, 1 P. Wins. 428 ; 1 Stra. 95. • Anon, 3 Swanst. 139, n. ' Cornish V. Oest, 2 Cox. 27. , * Baring v. Nai>h, 1 V. & B. 551 ; Ileaton v. Dearden, 16 Beav. 147. 168 PARTIES TO A SUIT. PERSOJ the party entitled in remainder, who is not in esse,^ Where the object of a suit is to ascertain boundaries, the Court will not entertain the bill, without having the remaindermen and all parties interested before it.^ It is not in general necessary, in questions relating to real property that the occupying tenarts under leases should bo parties. The tenant is, however, a necessary party where the object of the suit is to restrain an action of ejectment brought against him. Thus, in the case of Lawley v. Waldon,^ Hjovd Hardwicke allowed a demurrer for want of parties to a bill by the owner of an estate, to restrain an action of ejectment against his tenant, on the ground that the latter was not a party; observing, hoivever, that if the plaintiffin Equity had been made a defendant at Law, as he might have been, he should not have thought it necessary to make the tenant a party to ths bill, notwithstanding his being a co-defendant ; but that, as he was the only defendant at law, he must be a party to the bill, v^ But, although it is not usual, in suits relating to property, to make the occupying lessees of such property parties to the proceedings, yet, if such lessees, or other persons having only limited interests in ihe property, sock to establish any right respecting such property, it is necessary that they should bring the owners of the inLeritance before the Court, in order that, in case the suit is unsuccessful, the decree of the Couvt dismissing the bill may be binding upon them. Thus, to a bill by the lessees of property in a parish, to establish a modus, the owner of the inheritance must be a party ; and for the same reason, if there is a question concerning a right of common, though a leaseholder may enforce it at Law jat if he bring a bill in Equity to establish such right, he must bring the persons in whom the fee of his estate is vested before the Court ; " and so, in a suit in Equity to establish a right to fees in an office, although in an action at Law for such fees it is not necessary to make any person a party but the one who has actually received such fees, yet, in Equity, it is necessary to have all persons before the Court who have any pretence to a right. ^ Upon the same ])rinciple, where r bill was filed by a lessee against ti lord of a manor, and the tenant of a particular house, to have the house which obstructed the plaintiff's way, pulled down, and to be quieted in the possession of the way foi the future, and the defendant's counsel ' Wills V. Slade, Vc». 498 ,• Gaskell t. Gaskell, 6 Sim. 643: see, also, Brassey v. Chalmers, 4 Do G. M. & G. 528. " Rayky v. Best. 1 R. & M. 059 ; suo also Miller v. Warmington, IJ. & W. 484, 493 ; Speer v. CrawUr, 2 Mer. 410; Attorney-General, v. Stephens, 1 K. & J. 724; 1 Jur. N. 8. 1039; Do O. M. & G. Ill; 2Jur. N. 8. 61. s 3 Swanst. 142, n. ; Poole v. uVarsh, 8 8im..52f<. ♦ Poore V. Clark, 2 Atk. 515. ^ Pawletw. liishnpof Lincoln, 2 Atk.Hm. a objected for a the Court, th These cases from being ha is held, that " have all pers< the determiuj The applic where the less that which is his landlord against an o( claim to tith principle, whc an impropriate of documents. In order to claim under a in grant, cann< claiming undo suit for the sai Willis,* the Co bill, because 1 and the plain to amend his b (lemurroi- was demise, in Jat to amend, by m the principle t( the L. C. B., I lessor, had beei his answer disc had dismissed i against the oce had been origi ' Poore V. Clark, n "Per Lord Ilarclwi = Tooth. V. The Dear *3Wood.,29;2Gw ' The hiU was amen decreed to accoi account roi^htb in IR/Wa>,;n v. tt °M'Lel.C2; 13Prl. ' Yoiinge 25-.'. PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 169 objected for want of parties, because the plaintiff's lessor was not before the Court, the objection was allowed.' These cases all proceed upc n the principle of preventing a defendant from being harassed by a multiplicity of suits for the same thing ; and so it is held, that "if you draw the jurisdiction out of a Court of Law, you must have all persons parties before the Court who are necessary to make the determination complete, and to quiet the question. "^ The application of this rule, however, is strictly confined to cases where the lessee seeks to establish a general right : where he only seeks that which is incidental to his situation as tenant, ho need not make his huidlord a party. Thus, a lessee of tithes may file a bill for tithes against an occupier, without making his lessor a party, because the claim to tithes abstracted is merely possessory; and, upon the same principle, Avhcre an occupier, who was sued for tithes by the lessee of an impropriate rector, filed a cross bill against such rector for a discovery of documents, a demurrer to such bill by the rector was allowed.^ In order to entitle a lessee to sue for ^'thcs without his lessor, ho must claim under a demise by deed ; because tithes, being things which lie in grant, cannot be demised by parol, and a decree in favour of a plaintiff' claiming under a verbal demise, would, therefore, be no bar to another suit for the same tithes by the lessor. Upon this ground, in Henning v. IM/'s," the Court of Exchequer allowed a demurrer to tiio jilaintiff's bill, because the impropriator, who was the lessor, was not a party : and the plainiitf h-^ing submitted to the demurrer, obtfMied leave to amend his bill, b_\ aakingthe impropriator a-party.^ A similar demurrer was put in to a bill for tithes by a lessee under a parol demise, in Jackson v. Benson, ^ and allowed ; leave being also given to amend, by making the impropriator a party ; and in Williams v. Jones, ' the principle to be deduced from the foregoing cases was recognised by the L. C. B., Lord Lyndhurst. In that case, the vicar, who was the I lessor, had been originally made a party to the suit, but as he had by his answer disclaimed all interest in the tithes in question, the plaintiff hud dismissed the bill as against him, and brought the suit to a hearing against the occupier only; and Lord Lyndhurst hold, that as the vicar bad been originally a party, the circumstance of the bill having been ' Powe V. Clark, nhi svp. ^ Per Lord Hardwickc, Ibid. ^ Tooth V. T/ie Dean and Chapter of Canterbury, 3 Sim . 49, 61. *3Wood.,a9;2Qwn.898. ' The bill was amended, by making the lessor a defendant, and praying that the occupier might bo decreed to account with the lessee, his co-defmdant ; and that what should be found due on the account might be paid Into Court for the benefit of the plaintiff; see Lord Lj-ndhurst's judgment in ^^'iUiaiM v. Jones, Youngo 255. "M"Lcl.02; ISPri. 131. ' Younge S5J, •^ 5 ^ M 170 PARTIES TO A SUlf. PER80I dismissed as against him made no difference : for although his disclamer could not be read against the other defendants, no inconvenience could arise : because the lessor, after such disclaimer, would never be allowed to set up any claim against the occupier for the same tithesj. The rule that j)ersons claiming joint interests in an estate cannot sue without making their co-owners parties, applies equally whether the subject-matter of the suit be real or personal property; thus, it has been said, that whore a legacy is given to two jointly, one cannot sue for it alone ; though where there are several legacies, each may sue for his own.' And so, where there are several persons interested, as joint- tenants, in money secured by mortgage, they must all be made parties to a bill to foreclose such mortgage. This was decided to be tlio law of the Court by Lord Thurlow, in the case ofJJoice v. Morgan,^ wh re a mort- gagee had assigned the money secured by the mortgage to a trustee, in trust for three persons as joint-tenants. In that case, his Lordship appears to have laid a stress upon the circumstance of the parties interests 1 '" the money being joint-tenants ; from which it has been inferred, thiit a tenant in severalty or in common might forclose as to his share, without making the other persons interested in the money parties ; and a decree to this effect was actually made by Lord Alvanley, M. E., in a c. sc v.\!3re trustees of money belonging to several individuals hud laid it out ai a mortgage, and afterwards one of the persons entitled to part of the mort- gage money filed a bill against the mortgagor and the trustees for his share of the mortgage money, or a forclosure ; although the parties interested in the rest of the money were not before the Court. » In a case before Sir John Leach, V. C. however, it was determined, that there can be no redemption or forclosure unless all the parties interested in the mortgage money are before the Court; and, on this ground, a bill by a person entitled in severalty to one-si xtlx of the mortgage money, to foreclose one-sixth of the estate, was dismissed with costs;* but although all the persons entitled to the mortgage money should be parties to the suit, they need not be co-plaintiffs; and any one of them may file the bill, making the others defendants.' The rule as laid down by Sir John Loach, in the case above cited, is now modified by the provision of the late Act enabling trustees, insult-* relating to real or personal estates vested in them, to represent the persons ' Haycock v. Haycock, 3 Cli. C.a. I'H. But It is conceived Hiat now, the co-legatrc need not be mnili' a party in tlio ttrst instance ; but may be served with notice of tlie decree : the case, thoufrli iwl within tlic words, appearing to be within the spirit of the llrnt and second rules of the 3d* 10 Vic. c. 86, 8. 42. Kules 1 & 2 of No. 58 of our Con. O. O. are similar. " 1 Bro. 0. C. 308 : and sec Stanfjield v. Hobson, l(i Bcav. IW. • Montgomerle v. The Marquis qf Bath, 8 Vcs. 500. « Palmer v. iMrd Carlisle, 1 S. & 8. 123. * Davcnjm't v. James, 7 Hare, 219 ; 12 Jur. y2T. izy beneficially parties; and with some of with all.2 I an assignmei represent all To a bill o* had been exei such creditoi against a truj one of the de trust deed wa by one of sev( benefit of his account of the a party, the < ground of the creditor of tw as fraudulent Held, that if t a party also.' As a persoi foreclose the in the mortga redeem the mo right to redeei For this reas where two est f^ame sum of estate becomes one cannot red insist that the • find, for this pu ' 15 & 10 Vic. c. 8C Sta. ' fftamfield v. Hoi ' Xorku V. Mwletj held, that sclie were nccessar) not to represei ■IJur. N. S. ly * Fraser v. Suther ' 0' Connelly. Che • Wood V. JirenI, < ' Py/tfc V. Camerc '2J.*W. 1,134. PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. Ill beneficially entitled,* unless the Court requires such persons to be parties ; and the Court has, accordingly, in a redemption suit, dispensed with some of the beneficiaries ; though it appears that it will not dispense with all. 3 In a foreclosure suit, however, the trustees of the debt, under an assignment for the benefit of creditors, were held sufficiently to represent all the creditors. ^ To a bill of foreclosure brought by the trustees to whom a mortgage had been executed for the benefit of certain creditors of the mortgagor, such creditors are not necessary parties.* To a suit brought by or against a trustee of an insolvents' estate, in respect of a sum owing by one of the debtors of the insolvent, the creditors for whose benefit the trust deed was executed, are necessary parties. « Where a biL was filed by one of several creditors of a debtor, who had assigned his estate for the benefit of his creditors, against the debtor and the trustees, seeking an account of the estate and payment, without making any other creditor a party, the Court overruled an objection _or want of parties, on the ground of the absence of such creditor. ^ To a bill by an- execution creditor of two joint debtors, to set aside conveyances by one of them as fraudulent and void against creditors, the grantor was a defendant, Held, that if the grantor was a necessary partj-, his co-debtor should be a party also.' As a person entitled to a part only of the mortgage money cannot foreclose tlie mortgage, without bringing the other parties interested in the mortgage money before the Court, so neither can a mortgagor redeem the mortgaged estate, Avithout making all those who have an equnl right to redeem with hims'^lf parties to the Huit. For this reason it was held, in Jjord Cholmondeley v. Lord Clinton,^ that wliere two estates are mortgaged to the same person for securing the same sum of money, and afterwards the equity of redemption of one estate becomes vested in a different party from the other, the owner of one cannot redeem his part separately. The mort i^agee is entitled to insist that the whole of the moi'tgaged estate shall bo redeemed together ; and, for this purpose, that all the persons interested in the several estates ' 15 & 10 Vic, c. 80, s. 48, r. 9. No. 61 of our Con. G. O. is almost a copy of this rule 9. of the Imp. Sta. ' >%in«flelfi V. Ilobson, 10 Boav. 189. ' Morky v. Mwky. 25 Beav. S!5,S. In Thomas v. Dunning, 5 Dc G. & S. OlS, before the Act, It was iiokl, that scheduled creditors to an assignment of an equity of redemption by tlie mortgagor, were necessary parties ; and in a late ease, trustees of a mortgagor's creditors deed were held not to represent judgment creditors, who had not acceded to ii Anight v. I'ocock, 21 Bcav. 436; ■1 Jur. N. S. 197; and see Ralph v. U. C. B. 8y.,li Grant., 875. ' Fra»er v. Sutherland, 2 Grant, 442. ' O'ConneU v. Charles, 2 Grant, 489. • nvwrf V. Jirent, 9 Grant. 7f. ' j^i*/' V. ramero;!, 13 Gr^nt, 131. "iJ.JsW. 1,134. ^ 172 PARTIES TO A SUIT. ;■•{•' or mortgages should be made parties to a bill seeking an account and redemption. The same rule prevailed in Palk v. Lord Clinton,^ which differed from the case above cited, in the circumstance only of its being a bill by a second mortgagee of part of an estate to redeem a first mortgage, which embraced the whole property. In the above cases, the mortgage of the two estates was for the same sura of money, and was part of the same transaction. The rule however, has been extended to cases where a mortgage has been of two distinct estates to the same mortgagee, for securing different sums of money ; and it has been decided in many cases, that a mortgagee of two separate estates, upon distinct transactions, from the same mortgagor, is entitled to hold both mortgages till the amount due upon both be discharged, even against the purchaser of the equity of redemption of one of the mortgaged estates without notice ; so that the mortgages, although for distinct sums, are in effect for one sum. Uj^on this j)i'inciple, v/borc- the purchaser of the equity of redemption of a mortgaged estate filed his bill against the mortgagee, to redeem, and the defendant, by his answer, stated a subsequent mortgage made to him, by the same mort- gagor, of a distinct estate for a distinct debt, it "vvas held, that the persons interested in the equity of redemption of the second mortgage were necessary parties to the suit.^ And this rule prevails, although one mortgage be a pledge of personalty, and the other a mortgage of realty. ^ The rule which requires that, in a bill filed for the purpose of redeeming a mortgage, the plaintiff should bring before the '"^ourt all those Avho, as well as himself, have a right to redeem, has been held to apply to a second incumbrancer filing a bill to redeem a prior incumbrance, who must, in such case, bring the mortgagor, as well as the prior incumbrancer, before the Court.* This is a rule of long standing, and was followed by Lord Thurlow, in a case where his adherence to it was very inconvenient in consequeno'j of the heir-at-law of the mortgagor being abroad; his Lordship there said that it seemed to him " impossible that a second mortgagee should come into this Court against the firs t mortgagee, without making tlie mortgagor, or his heii', a party. The natural decree is, that the second mortgagee shall redeem the first mortgagee, and that tlie mortgagor shall redeem him or stand foreclosed.'' ^ The same rule was » 12 VcB. 48,59. ■ Ireson v. D nn, 2 Cox, 425 ; see however Willie v. Lngg, 2 Eden, 78. 8 Jones V. Smith. ZVes. J. 372; reversed by House of Lords, see 6 Vcs. 229 n. ; see also Watt$\, Svmes, 1 De G. M. & G. 240 ; 16 Jur. 114 ; Tamil v. Smith, 2 De G. & J. 713 ; 4 Jtir. N. S. 101)0; Vint v, Padget, 2 Do Q. & J. 611 ; 4 Jur. N. 8. 1122 ; AV% v. Ponifret, 1 J. & II. :«tj; T Jur. N. S. 860; i6. 835, L. C. « Thompson v. Baskerville, 3 Ch. Rep. 215; Farmer v. Ciirtis^'i Sim. 400; and see //«?(?«' v Macklew, 5 Hare, 238. » Fell v Broion, 3 Bro. V, C. 370, 278. ^ • PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 113 confirmed by Sir William Grant, M. E., in Pall; v. Lord Clinton,^ and has ever Bince been acted upon as the rule of the Court. Bat although a second mortgagee, seeking to redeem a first mortgagee, must make the mortgagor or his heir a party, yet ho may, if ho please, foreclose the mortgagor and a third mortgagee, without bringing the first mortgagee before the Court : because by so doing he merely puts himself in the place of the mortgagor and subsequent mortgagee, and leaves the first mortgagee in the situation in -which ho stood before ;3 and if, ir such a case, ho makes the prior mortga<;ce a party, ho must offer to redeem him. 3 For the same reason it has been held, that a third mortgagee buying in the first, need not make the second mort- gagee a party to a bill to fcecloso the mortgagor. Upon the same ground, it is unnecessary to m^i^'.d annuitants, or other prior incum- brancers parties to a bill by creditors or incumbrancers for the sale of an estate ;* and so, in a suit for tho execution of a trust, by those claim- ing the ultimate benefit of the trust after the satisfaction of prior charges, it is not necessary to bring before the Court the persons claim- ing the benefit of such prior charges; and therefore, to a bill for the application of a surplus after pa^-mcnt of debts or legacies, or other prior incumbrances, the creditors, legatees, or incumbrancers need not bo parties. 5 Under the provision of the late Act above referred to with regard to trustees representing their cestui que trusts,'^ it has been held, that when the mortgaged estate was vested in trustees, who also, as executors of a will or otherwise, Avere the persons who would be in jiossession of the funds for payment of the mortgage debt, they might properly re- present the beneficiaries;'^ but that when this was not the case, the cestui que trusts, or some of them, must be before the Court. » Rule 9 of Section 86, of the Imp. Sta. 15 & IG Vic. C. 86, is similar in effect to our Order 61, which is taken from it. This Order declares that " In all suits concerning real or personal estate which is vested in trustees under a will, settlement oi* otherwise, the trustees shall c P i 'it ■A' ' 12 Ved. 18. 58, ^ Richards V. f.'oojjcr, 5 Beav. 304 ; Lord lIol/i.s\t ca»e, cheA :i Cli. lUp. 80 ; Rose v. I'arje, 2 Him. ■171 ; BHsco v. Kenrick, 1 C. 1'. Cooj). t. Cott. 371 ; and see Arnold v. lUunbrigge, :' De (f. F. & J. 92 ; Audsley v. Ham, StJ Bl-uv. 195 : « Jur. N. S. 205. ' (iordon v. Uortfall, 5 Moor'', 3!);5 : 11 Jiir. :m. ^ See judgmei.t iu Rose v. Pa>j€y 2 Sim. 47.i and eee Parker v. Fuller^ 1 1{. «& M. (j.')G. » Ld. Red, 175. M5 & 10 Vifi. c. 86, 8. 4-J. ' Ifanman v. iPffey, 9 Ilnrc, App. 40; Sale v. /yi/son. 3 Do G. M. & O. 119 : 17 Jnr. IVO ; 10 Hare. App. 50; Wilfiiiis V. Reeres,--^'''V. li.im-.liEq. Rtp-i'M, V. C. W. ; MarrioU v. Kirkham, 3 Giff. 6.30:8Ji:r. N. S. 379. ffoldsmid v. Stonehewer, 9 Hare, App. .38 : 17 Jur. 199 ; Young v. Ward, 10 Hare, App. 58 ; Crop- per V. Mellersk, 1 Jur. N. 8. 299, V. C. 8. ; and bee Siffken v. Davis, Kay, App. 21 ; Wilkins v. Beeves, ubi sup. / Tuder v. Morris, 1 Sm. & G. 503 ; Wallers v. Jones, G Jur. N. S. 530, V. C. 8. 174 PARTIES TO A SUIT. represent the persons beneficially interested under the trust, in the same manner and to the same extent as executors or administrators, in suits concerning personal estate, represent the persons beneficially interested in such personal estate ; and in such case it shall not bo necessary to make the persons beneficially interested under the trust parties to the suit ; but, on the hearing, the Court, if it thinks fit, may order such persons, or any of them, to bo made parties." When the mortgagor has become bankrupt, he is not a nece jsarj'^ party to a suit for foi'cclosure, even if the assignees disclaim : • though the last proposition appears to have been doubted by Sir J ames Wigram, V. C.3 The same principle hich calls for the presence of all persons having an interest in the equiuy of redemption, in the case of bills to redeem a mortgage, requires that where a mortgagee seeks to foreclose the mortgagor, he should bring before the Court all persons claiming an interest in the mortgage ; therefore, a derivative mortgagee must make the original mortgagee, or, if dead, his representative, a party to a bill against the mortgagor for foreclosure. ^ , If, however, a mortgagee has assigned or conveyed away from him- self, not only the money due on the mortgage, but also the mortgaged premises, the assignee may, as we have seen,* foreclose, without making the original mortgagee u party ; and upon the same principle, it may also be inferred from the case of Menvoize v. Cooper,^ that where a mortgagee has devised his interest in the mortgage, in such a manner as to pass not only the mortgage money but the estate mortgaged, the devisee alone may foreclose, without making the heir-at-law of the original mortgagee apart}", unless he claims to have the will established :« in Avhich case^ it would seem, he must be made a defendant ; because a devisee and heir cannot join in the same suit, even upon an allegation that they have agreed to divide the matter in question between them.' The rule which requires that all persons having concurrent intores<:.s with tho yjlaintiff should be parties to the bill, applies to all cases in which an account is sought against a defendant. One person cannot exhibit a bUl against an accounting parry without bringing before the Court all persons who are interested in having the account taken, or in » Collins V. Shirlen. 1 R. & M. C38 ; Kerrick v. Safery, 7 Sim. 31" ; sco also Cash v. Belcher, 1 llare. 310 : (5 Jur. 190. Ford v. White, lOBeav. liU, " » Singleton v. 6to, 4 Hare, 326. s Hobartv. Abbot, 3 P. Wras. ms. * Ante. » 6 Mad. 371. * Lewis V. Nangle, 2 Ves. S. ffll. ^ Lord Cholmondeley v. Lord Clinton, T. & 8,. 107, 116. PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 175 the result of it : otherwise, the defendant might bo harassed by as many- suits as there are parties interested in the account. Thus, in a suit for a partnership account, or for a share of a partnership adventure, it is in general necessary that all partners or persons having shares in the same adventure should be parties ; ' and a residuary legatee seeking an account and share of the residue, must make parties all other ])erson8 interested in that residue i^ either active parties, by making them plaintiffs or defendants to the bill ; or passive parties, by serving them with notice of the decree. ^ And so, where a moiety of a ronidue was given to one of the defendants for life, and upon her decease, to such persons as she should appoint, and, in default of appointment, to certain other persons for life, it was held, that the other persons, although their interests depended iipon such a remote contingency, ought to be before the Court.* As what are called '' Eules " — being portions of S. 42 of the Inp. Sta. 15 & 16 Vie. c. 86, are frequently referred to in this work — it may bo convenient hero to mention that *' rules " 1 to 7 inclusive of our Order 58, are copies of the corresj)onding "rules" of this Statute. Our Order declares that " It shall not bo competent to a defendant to take an objection for want of parties in any case to which the seven rules next hereinafter set forth apply. "KuLE I. — A residuary legatee, or next of kin may have a decree for the administration of tho personal Estate of a deceased person, without serving the remaining residuary legatees or next of kin. / "Bull II. — A legatee interested in a legacy charged upon real Estate ; or a person interested in the proceeds of real Estate directed to bo sold, may have a decree for the administration of the Estate of a deceased person, without serving any other ^egatee or person interested in the proceeds of the Estate. " EuLE III. — A residuary devisee or heir, may have the like decree, without serving any co-residuary devisee or co-heir. " Rule IV. — One of several cestui que tnists, under a deed or instrument, may have a decree for the execution of the trusts of the deed or instru. ment, without serving any other of such cestui tjue trusts. ^ ■ Ireton v. Z«W{», Rep. t. Pinch, 9(5 ; Mofat v. Farquharson, 2 Bro. C. C. 338 ; but it is to be ob- served, that notwithstanding tlie decision in this case, they may be made quasi parlies by the plaintiff suing on behalf of hinieulf and on their behalf. Good v. Blewitt. 13 Ves. 397; and see Hilh V. Nash, 1 Phil. 594 : 10 Jur. 148 ; and see Partridge v. Mcintosh, 1 Grant 50. ' Parsons V. Yeville, SJiro. C. C, '.iK. In Cockburn\. Thompson, 16 Ves., 3'28, Loid Eldon said this admits of an exception, and that when, from great numbers, it was impracticuble to malie tliem all parties, some miglit sue on behalf of themselves and the others ; and see post. M5 & 16 Vic. c. 86, s. 42, rr. 1, 8. See Rule 1 of our Con. G. O. No. 58, and Order No. 60, similar. ♦ Sherrit v. Birch, 3 Bro. C C, 229 ; Lenaghan v. Smith, 2 Phil. 301 ; 11 Jur. 503; but not when the share has been ascertawied and invested: Smithy. Snow, 3 Mad. 10; Ilares v. Stringer, 15 Beav. 206 ; see also Grace v. Terrington, 1 Coll. 3. v\ 176 PARTIES TO A SUIT. " Rule V. — In all cases of suits for the protection of property pcndinjf litigation, and in all cases in the nature of icastc, one person may move on behalf of himself, and of all persons having the same interest. " EuLE VI. — An Executor, Administrator, or Trustee, may obtain a decree against any one legatee, next of kin, or cestui que trust, for the administration of the estate, or the execution of the trusts. ''EuLE VII. — An assignee of a chose in action may institute a suit in respect thereof without making the Assignor a party thereto." Order 59, provides that '' In all the above cases the Court, if it soos fit, may require any other person to be made a party to the suit, and niAy if it sees fit, give the conduct of the suit to such person as it deems proper ; and may make such order in any particular case as it deems just for having the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matter in question." And Order 6, with a number of writs, pleadings and proceedings, abolishes the practice of " setting down a cause on an objection for want of parties merely." And Order GO, that "In all the above cases, the persons who, according to the practice of the Court, would be necessary parties to the suit, are to be served with an office copy of the decree (unless the Court dispenses with such service) en- dorsed with the notice set forth in Schedule A hereunder written, ami after such service, they shall be bound by the proceedings in the same manner as if they had been originally made parties to the suit ; and upon service of notice upon the plaintiff, they may attend the proceed- ings under the decree. Any party so served may apply to the Court to add to, vary or set aside the decree within fourteen days from the date of such service." It may be here mentioned that Order 408 i)rovides that the time of vacation is not to be reckoned in the computation of the time appointed or allowed for "moving to add to, vary, or set aside a decrcq, by any party served therewith." Upon the same principle it is, that in suits by next of kin agaiiista personal representative for an account, the Court requires that all the next of kin, should be j)arties to the suit,' in the same manner as in the case of residuary legatees: either as plaintiffs or defendants to the bill, or by being served with notice of the decree.^ It is to bo observed, that in cases where the parties claim under a general descripti' n, or as being some of a class of persons entitled, the Court would not formerly make a decree without being first satisfied that all the individuiil;- o! ' See Hawkins v. Hawkins, 1 Hare, 543, 846 : 6 Jur. 63*?, explaining UaldcoC. v. Caldecott, C. & P 183: 5 Jur. 218; and see Shuttleworth v. Howarth J. & P. 230 : 5 Jur. M, » IB & 16 Vic. c. 86, s. 4?, rr. 1, 6, and see our Orders, No. 58. PERSOr the class, or For this purp an account, Masters to ii general desci were not be: thorn before i ing to Sir J inquiries Avei interested in taken until af his re])ort. party to the Court might beneficially ii the time of di find that all t ho should the irregularity, { unless it wer( parties. ' Un no longer nec( parties for the such an enqui: preliminary t( to proceed in ■ Where the ] kin of an intei of kin are too cither allow tl Master as to tl In like man one legatee in persons intere one residuary without makir though they n ^ PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 171 the class, or who coino under tho general description, Avcro before it. For tliis purpose, tho Court, in cases of this description, before directing III! account, or other relief prayed by the bill, referred it to one of the Masters to inquire who tho individuals of tho class, or answering the general description, were; and then, if it turned out that any of them wore not before the Court, it was necessary for the plaintitt" to bring thorn before the Court before tho cause was finally heard. And accord- ing to Sir James Wigram, V. C, in an administration suit, in which inquiries were necessary to ascertain who were the parties beneficially interested in the estate, it was irregular to direct the accounts to bo taken until after tho inquiries had been made, and tho Master had made his re])ort. But where tho parties interested were the children of a party to the suit, or persons of a class in such circumstances that tho Court might bo reasonably satisfied, at the hearing, that all parties beneficially interested were parties to the record, tho Court might, at the time of directing the inquiries, also order that, if the Master should find that all the persons beneficially interested were parties to tho suit, ho should then proceed to take tho account ; this was, however, an irregularity, and the Court would not make the order in that form, unless it were reasonably clear that all tho persons interested were parties. • Under the present practice of the Court, however, it being no longer necessary to make all the residuary legatees or next of kin parties for the purpose of tho decree, although it is usual still to direct such an enquiry as above-mentioned, yet it should not in terms be made preliminary to taking the accounts : in order that the Judge's discretion to proceed in the absence of the parties may not be fettered.^ Where the plaintiff, suing on behalf of himself and the other next of kin of an intestate, alleges in his bill, but does not prove, that the next of kin arc too numerous to be made parties by name, the Court will cither allow tho cause to stand over, or will direct an enquiry by the Master as to the next of kin.^ In like manner, as in the case of residuary legatees and next of kin, one legatee interested in a legacy charged upon real estate, one of the persons interested in the proceeds of real estate directed to be sold, or one residuary devisee or heir, may have an administration decree, without making the others of the class parties in the first instji iice : though they must be served wdth notice of the decree." ' liaker v. liar wood, 1 Hare, 327 : 6 Jur. 658 ; see also Hawkins v. Hawkins, 1 Ilnrc, .'513 ; Jur. 038 ; Say v. Creed, 8 Hare, 455 : 8 Jur. 89.3 ; Phillipson v. Oatty, (i Hare, ^0 : 12 Jur. 4;jr. " Si'tnn 188 ; and as to evidence necessary to support such an inquiry, see Miller v. Priddon, 1 M'N. it 0. (187. But the Mast(>r in this Province lias not tho power which a Judge in England has— iiiul where a Macter finds that a party interested in the fund is not before tlie Court, le Bhould ciiuse him to bo served with notice of the Decree under Order 60; and he should, ir no case, dispense with thin without a special order of the Court, or a Judge. ' Mumlman \. .v«jrfer, 3 Grant, 158. * 15 & 10 Vic. c. 86, 8. 43, rr. 2, 3, 8. And sec our Orders No. 58. 13 t I ■ IS ' f: 178 PARTIES TO A SUIT. The rule that all persons interested in an account should be made parties to a suit against the accounting party, will not apply whero it appears that some of the parties interested in such account have bcDn accounted with and paid ; thus, in the case of a bill by an infant cestui que trust coming of age, for his share of a fund, it is the constant practico to decree an account, without requiring the other cestui que trusts, who have come of age before, and have received their shares, to be before the Court. And' in the case of a partnership, where a bill was filed against factors by the persons interested in one moiety of a cargo of tobacco, for a discoveryand account as to that moiety, without making the person interested in the other moiety a party, and it appeared that the defendants had distinguished in their accounts between him and the jilaintifFs, and had divided the funds, and kept separate accounts, the Court held that the owner of the other moiety was not a necessary party to the suit.' And where ^., B. and C, being partners together, A. agreed with D. to give him a moiety of his share in the concern, it was held, that an account might be decreed between A. and D., witliout making J5. and 0. parties.^ It is also held, that to a bill by a person entitled to a certain aliquot portion of an ascertained sum in the hands of trustees, the co-cestui que trusts are not necessary parties. ^ In some cases, where a party.having a joint interest with the plaintiffs in the taking of an account has been abroad, the cause has been allowed to go on without him ; thus, in the Exchequer, where a bill was filed by some of the children of a freeman of London, who was dead, for an account and division of his personal estate, and it appeared that one of the children was beyond sea, the Court was moved that they might hear the cause without him, and that if it appeared that ho had any right, ho might come before the deputy remembrancer on the account ; and, though no precedent was produced of such an order, the Court gave liberty to hear the case without him.* The question whether a trustee of an estate can be called upon by a purchaser of a portion of an estate, sold by the beneficiaries to different persons, to convey to hici the legal estate in such portion, without bringing all the other persons interested in the same estate before the Court, was discussed before Lord Eldon, in the case of Goodson v. Ellism? In that case, the persons beneficially interested in an estate vested in trustees had, many years before the commencement of the suit, yift > Weymouth v. Boyer, 1 Ves. J. 416, 42? ; see also Anon. 2 Eq. Ca. Ab. 160, pi. 7 ; Hills v. Nmh 1 Phil. 694, 597 : 10 Jur. 148. " Brown v. De Tastet, Jac. 284 ; see also Bray v. Fromont, 6 Mad. 5. ' Smith V. Snow, 3 Mad. 10 ; Hares v. Stringer, IB Beav. 206; see also Perry v. Knott, 5 Bear 293 ; Lenaghan v. Smith, 2 Phil. 301 : 11 Jur. 603 ; Hunt v. Peacock, 6 Hare, 361 : 11 Jur. 555. ' Bogera v. Linton, Bunb. 200. » 3 Russ. 583, 593, 596. PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 179 cocdod ta soil tho entirety in various lots, one of which was purchased liy tho plaintiff, and all tho persons beneficially interested joined in convoying it to him. Tho trustee, however, did not join, and upon his death tho legal estate became vested in the defendants : upon Avhoso refusal to convoy without tho sanction of the Court the bill was filed, and a decree for a conveyance by tho defendants was pronounced by Lord Gilford, M. E., who directed that they should pay the costs of tho suit. Upon appeal, however, Lord Eldon expressed considerable doubts whether u trustee could bo called upon to divest himself of a trust, ))y convoying different parcels of tho trust property at different times, and whether it was not, therefore, necessary to have all the otljcr cestui que trusts before tho Court ; but, upon re-argument, ho stated that he thought there wore parties enough before the Court to enable him to make a decree : though as it was tho case of an old trust, ho thought the Court was bound to enquire into tho facts, and that the trustees had a right to have tho conveyance settled in the Master's office. It was a general ru^o, arising out of the preceding principles, admitting, of very few exceptions, that a trustee could not, under ordinary circum- stances, institute proceedings in Equity relating to the trust property, withouc making tho cestui que trusts parties to the proceeding.' Thus, where a bill was filed by trustees for sale, against a purchaser, for a specific performance of the contract, the cestui que trusts of jthe purchase money were hold to be necessary parties, unless there was a clause in the trust-deed declaring the receipt of the trustees to be a sufficient discharge : which was considered as a declaration by the author of the trust that the receipt of tho persons beneficially interested in the pro- duce of the sale should not bo necessary ;2 and where a bill w^as filed by certain persons, describing themselves as trustees for a society consist- ing of a great member of persons, for tho specific performance of an agreement entered into by themselves for tho benefit of the society, and I a demurrer was put in, because the members of tho society were not pai'ties to the suit, upon tho argument of which, it was insisted that a trustee could not file a bill respecting the trust property, without making the cestui que trust a party, and that, although the members of the society were so numerous that it was not practicable to make all of them parties, the bill ought to have been filed by some of them on behalf of I themselves and the others, and that it did not appe."^* by the bill that the plaintiffs were even members of the society: t IcmuiTcr was upon these grounds allowed. ^ Upon the sam.e principle, if a mortgagee ' Kirk V. Clark, Free. Cha. 276; PhiUipson v. Gatty, 6 Ilaro 26 : under v. Cana, 1 De G. & 8. 415. ^ Per Sir J. Leach, V. C, Calverley v. Phelp, 6 Mad. 232. 3 Douglas V. HortfaU, 2 8. & 8. 184. 12 Jur. 4.30; see, however, Alex- IMAGE EVALUATION TEST TARGET (MT-3) k // // ' ^^^ V\^ ^ ^ ^^ ^^ 11.25 lit ■ 4.0 ■2.0 o^ / r ^^^ •> '^l^, " ^.^• Photograptiic Sciences Corporalion S. :1>^ ^ i\ <^ <^ ^ \ ^\ 23 WIST MAIN STRICT WnSTM.N.Y. M5S0 (716) •73-4S03 ■**»* V 180 PARTIES TO A SUIT. PERSONS H dies, and his heir files u bill of foroclosurc, the executor of the mort- gafjeo must be a jiarty : because, although at law the legal right to the estate is in the heir, yet in equity he is only considered as a trustee for the executor, who is the person entitled to the mortgage money; i and for this reason, where the heir of the mortgagee had foreclosed the mortgagor, without making the executor of the mortgagee a ])arty, and a bill was filed by the executor against the heir, the land was decreed to the executor. =» it seems, however, that although the personal representative is the person entitled to receive the money, the heir has a right to say that he will pay off the mortgage to the executor, and take the benefit of the foreclosure himself; » and for this reason, as well as that beibre stated, the heir of a mortgagee is a necessary party tea bill of force I '^s urn by the personal representative, unless the mortgagee has devise/! 'ic mortgaged estate: in which case, as we have seen, his heir is not ii. "3ooss«;ry party to a bill by the devisee to foreclose tie equity of redemption.* There wer<^ instances, according to the former practice of the Court, in which, under peculiar circumstances, trustees wore allowed to main- tain a suit, without their cestui que trusts; as in the case before men- tioned' of trustees under a deed, by which estates are vested in them, upon trust to sell, and to apply the produce amongst creditors or others, with a clause declaring the receipt of the trustees to be a good discharge to the purchasers." And by the 30th Order of August, 1841, the oases in which the cestui que trusts were dispensed with, as parties to the suit, were greatly increased : for by that order it was provided that, in all suits concerning real estate which was vested in trustees by devise, and such trustees were competent to sell and give discharges for the pro- ceeds of the sale, and for the rents and profits of the estate, sueh trustees should represent the persons beneficiallj'' interested in the estate or the proceeds, or the rents and profits, in the same manner, and to the same extent, as the executors or administrators, in suits concerning personal estate, represent the persons beneficially interested in such personal estate ; and in such cases, it should not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit ; but the Court might, upon consideration of the matter on the hearing, if it should so think fit, order such persons to be made parties. This order applied, not only to suits by persons * Freak r. Horsey, Nels. 93 ; Froom. 180 : 1 Oba. Ca. 61 : 9 Eq. Ca. Ab. 77, pi. 2. « Gto6«v. CtorHsto, cUedaVem. 67. * Clerkton v. Bowyer, 3 Vcrn. 07. * Renvoize v. Cooper, 6 Mad. 371 : ante. » AnU. * See OcUverley v. PMp, 6 Mad. 889. claiming adverse persons beneficia' conduct cf the t that persons havi necessary, howev discharges, shouh the order did not to the suit." An foreclosure of fre This order has to meet being inc i-efeiTcd to,' whe or personal estate or otherwise, su interested under as the executors ^ represent the per and in such cases ficially interested may, upon consid think fit, order sii Wo have alread and foreclosure si It has been held 1 shai-es sufficiently hold, that execute subject to paymei executor, with or not apply when 1 And where an os ' Onliorm V. Foreman construction of thi Miller v. Huddlesl Jones V. How, 7 H " Turner v. Hind, 18 ' milon V. Janet, 8 Y V. C. K. B. Onr ( Rule 9, of Sec. 48,^ • By Cons. Ord. Prel. » 15 & 10 Vic. c. 80, ». • AnU. ' Ante, Ibid. ' Fmler v. Bayldon, • Ibid. ; and Ooldsmt '" Demem v. Elworthi " Shawy.Hardingha '^ IMUni V. Stannard, " JtMew Bennett, ai. PERSONS HAVING CONCDRRENT INTERESTS WITH PLAINTIFF. 181 %^' claiming adversely against the estate, but also to suitt )^ some of the persons beneficially interested, seeking relief in respect oT alleged mis- conduct cf the trustees ; and in such cases, it rendered it unnecessary that persons having charges on the estate should be parties.' It was necessary, however, that the trustees who were empowered to give discharges, should themselves bo entitled to the legal estate : otherwise, the order did not apply, and the cestui que trusts were necessary parties to the suit." And it appears that the order did not apply in cases of foreclosure of freeholds, devised in trust for sale.' This order has now been abrogated :* the cases which it was intended to meet being included in the more comprehensive enactment above i-cfeiTcd to,' whereby it is provided, that in all suits concerning real or personal estate, which is vested in trustees under a will, settlement, or otherwise, such trustees shall represent the persons beneficially interested under the trust, in the same manner, and to the same extent, as the executors or administrators, in suits concerning personal estate, represent the persons beneficially interested in such personal estate ; and in such cases, it shall not bo necessary to make the persons bene- ficially interested under the trusts parties to the suit ; but the Court may, upon consideration of the matter, on the hearing, if it shall so think fit, order such persons or any of them to be made parties. We have already considered the application of this rule to redemption," and foreclosure suits;' but it applies to all suits,' and is retrospective." It has been held that, in an administration suit, the trustees of settled shares sufficiently represent their cestui que trusts.^" It has also been held, that executors with a power of sale, and also devises in trust subject to payment of debts, are trustees within the rule ;" but that an executor, with only an implied power of sale, is not." The rule does not apply when the cestui que trusts have concurred in breaches of trust." And whore an estate is sold under a decree of the Court, as a general ^ ' O»l)orne v. Foreman, 2 Hare, 05fi ; 8 Jiir. 55 ; Ward v. Jiasftelt, 5 Hare, 179 ; seo alHo, upon the rnii»trncllon of thi« order, Cox v. Harnard, ib. 263 ; Uoyd v. Smith, 13 Sim. 457 : 7 Jur. 460 ; Miller V. Huddkstme, 13 Sim. 4fi7 : 7 Jnr. 501 ; Reeve v. Richer, 1 Do O. «& S. 6-,>4 : 11 Jur. 960 ; Jones V. Hoio, 7 Hare, 870 : 14 Jur. 145. « Turner v. Uind, 12 81m. 414. ' miinn V. Jonei, 2 Y. & C. 0. C. 244 ; Chamberlain v. Thacker, 13 Jur. 785, V. C. W. ; 14 Jur. 190, V. C. K. B. Our Order 61 Ih almost a counterpart of this English Onler: and it is a copy of Rule 9, of Sec. 42, of the Imp. Sta. 15 & 16 Vic. c. 86. « By Cons. Ord. Prel. Ord. r. 1. » 15 & 16 Vic. c. 86, B. 48, r. 9. . ' 'Ante. . '■ , . .1 ' ■ " ' Ante, Ibid. ' ' . . * Fowler v. Bayldon, 9 Hare, App. 78. • Md. ; and Ooldsmid v. Slonehewer, ib. 38 : 17 Jur. 199. '" Dentem v. ^worthy, 9 Hare, App. 42. " S/iaw V. Hardingham, 8 W. R. 057, M. R. ; Smith v. Andreies, 4 W. R. 363, V. C K. " Mtoii V. Stannard, 4 Jnr. N. S. 670, M. R. " Jem V. Bennett, 6 Do (». M. & (I. tMW ; 2 Jur. N. H. 1186. 182 PARTIES TO A SUIT. rulo (with a po.ssiblo exception in some casOH of extreme difficulty), the Court will, in the cxertine of its discretion, require all the persons interested in the proceeds to bo parties to the suit, or to be served with notice of the decree, in oixler to secure a proper and. advantageous sale, and protect tiie title of purchasers from being open to inquiry or im- j)eaclnncnt ; ' and wherever the trustees' jiorsonal interest may prevent them protecting the interest of the cestui que trusts, the Court will requiiv the cestui que trusts, or some of them, to bo made partios.!" Trustees cannot, however, represent some of the cestui que trusts in any contention mfWfy, 20Bc8v. 5K3; see, however, C/ianeellorv. Mdrecrqfl, 11 Beav. 2(i2: m dco Bridget v. Home*, 1 Coll. 72, whert^ the bUI waH filed against one of tho ce»tui que tn.il' to recHver tho trust property, and tho other cestui que (rusts were held uiiDeceBsary parties. • Allen V. Knight, 6 Uarc, 2T2, 277 : 10 Jur. 94a PERSONS IIAVINQ CONCURRENT INTERESTS WITH PLAINTIFF. 183 trusts have concurred in a breach of trust, one Iruateo cannot Hue his cotrustco without making them parties.' • ' - And hero \l may be ob-served, that the personal representative, in all cases, represents the personal estate of the deceased, and is entitled to siio for it in Equity as well as at law, without making the residuary le<^ivtcos, or any of the other persons interested in it, parties to the suit. For this reason, where a woman by her will gave all her personal estate to her bastard child, and made B. and C. her executors, and died : and within a short time after, the bastard died intestate; upon a bill filed by the executor against a person in whose hands the property of the mother was, praying for an account, the defendant demurred, because the representative of the bastard and the Attorney-General were not parties, but the demurrer was overruled : it being held, that the executor v»a8 legally entitled to the estate of his testatrix ; and though this may bo ill trust for another, yet, as the executor has the legal title, he can give a good discharge to the defendant.^ Where, however, there has been a great lapse of time since the death of the testator, and it seems doubtful who are the persons beneficially interested under his will, the Court will not, as of course, order payment to a personal representative of funds recovered in the cause, but may direct them to be paid into Court.' So also, assignees of bankrupts may either maintain or defend suits relating to the estates zested in them as such assignees, without the creditors for whom they are trustees beiag made parties to the suit.* Xor is it necessary, in such case, that the bankrupt, notwithstanding his interest in the residue, should be before the Court:* though, from a decision in Vernon's Reports, it appears to have been formerly considered requisite.' The rule, that where the person by law entitled to represent the jjcrsonal estate is party to the suit, legatees or other persons interested in the estate need not be parties, does not extend to the case of a resi- duary legatee suing for his share of the residue : in which case, as we have seen,' it is generally necessary that all the residuary legatees should be made parties to the suit, either as plaintiffs or defendants, or by being served with notice of the decree;' although, where the number of the ' Jme V. Bennett, 6 De O. M. Jfc 0. 000 : a Jur. N. 8. 1195. « Jones V. OoodchUd, 3 P. Wms. S3 ; see also Peake v. Ltdget; 8 Hare, 818. > Lou V. Duckett, O. A P. 806, 313; Ex parte Sam.SM. & C. 96, 90 ; 1 Jur. 668 ; He MaUmy, 1 J. & n. %Vi ; Pennington v. Buckley, 6 Hare 451, 460 ; 11 Jur. 468 ; and see Adams v. Barry, 9 Coll. 3tJ5, where the Court required the ieeiduary legatee to be made a party. * Spragg v. Bitikes, 6 Voe. 687. ' 3 P. Wmg. 811 n. I. ; Kaye v. Fosbrooke, 8 Sim. 98 ; Dymn v. Hwnhy, 7 De Q. M. & 0. 1 ; anU. • Sharpe v. Qamon, 2 Vem. 39; 1 Eq. Ca. Ah. 72; PI. 7. ' Ante. M5 & 10 Vie. c. 86, B. 4i', rr. 1, 8 ; and our orders No. 68. m ^ .^ E 184 PABTI.fS TO A dUlT. class is groat, the Court has soinotimes disponscd with tho nocossity of mnkiiig thorn all jjartics, and allowed one to suo on bohalfoftiu' others. ' And whore logacics are charged upon real estate, one legatoi' suing for his legacy, must make all the other legatees parties, either as pluintitls or defendants to tho bill, or by serving them with notice of the decree.^ It seems to have boon doubtful whether, under tho former practice, trustees of real estate for tho payment of debts could sue with- out bringing before the Court tho creditoi-s for whom they aro trustees ;3 but it is apprehended, that in such cases, the Court would now generally allow the trustees, under the 9th rule above referred to, to represent the creditors.* And now, one of several cestui que trusts, under any deed or instrument, may bo a plaintiff or defendant, as representative of his class, in a suit for the execution of tho trusts of tho deed or instrument, tho others of the class being served with notico of tho decree;' hut any cestui f/ue trust6 .yho have concurred in a breach of trust, must bo parties to a suit to make a trustee liable for tho loss occasioned thereby." But although, in ordinary cases, tho oxoc tor represents the whole personal estate, and no legatee need bo a \,. rty, because the personal estate may bo exhausted by the debts, and the interest of the legatee is therefore uncertain, it has been held, that tho appointees under the will of a feme covert are in a different situation, and that they must bo made parties ; therefore, whore tho administrator with tho will annexed of a married woman, filed a bill, praying that the defendants might j>ay over to him a sum of money, as to which a testamentary appointment had been executed by the testatrix, by virtue of a power in her marriage settlement, without making the appointees parties, the Court ordered tho case to stand over, with leave for the plaintiff to amend by bringing the appointees before the Court.' It is apprehended, however, that the Court would not now require the cestui que trusts to bo parties in such a case." Where the appointees were very numerous, and the bill was filed by some of them on behalf of themselves and the others, tho Court dispensed with tho general rule which required them all to bo parties.' ' Harvey v. Harvey, 4 Beav. 216, 390; see also 5mar< v. liradstock. 1 Boav. 500: Bateinnn v Margerison, C Ilaro, 4U(1, 499 ; but see Jones v. Howe, 1 Hare, 2A7 ; 14 Jur. 145 ; «eo also iHwily T. Higgins, 9 Ilare, App. 83, particularly the observations of Sir Goo. Turner, V. 0., at p. 38. " Morne v. Sadler, 1 Cox 352 ; 15 & 16 Vic. c. 86, s. 43, rr. S, 8 ; and our orders No. 68. a Ld. Red \U;. Harrison v. Stewardson, 3 Hare 630, 683 ; Thomas v. Dunning, 6 De G. & S. 61H. * Jforley v. Morley, 36 Beav. 258. In Knight v. /to(»cJt, 34 Beav. 486: 4 Jnr. N. 8. 197, H w«« hela, that tho trustees did not represent creditors who had not acceded to the deed. 16 & 10 Vic. c. 86, B. 42, rr. 4. 6 ; ITLsod v. Annedey, 16 Beav. 600 ; .kmes v. Jam«s^9 llarc, App. 80 ; and Bee rules 4 and H of our orders No. 68, which are copies of tliese EngllHli Rules. ); 3 Jur. N. S. 1136; WOUams v. Alkn, 29 Beav. 393. • Jessie V. Bennett, 6 De G. M. Si G. 1 Court V. J^ery, 1 S. & 8. 106. Muster* V. Wright, 3 Do G. & 8. 777; and wc Sewell v. Ashley, 8 De G. M. & G. 10 W. R. 378, V. C. K. • Manning V. Theiiger, 1 8. & S. 106. J; lieNewhtry, PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 186 It is to bo observed, that in Craker v. Pairott,^ on a bill filed by one of four childroii who wore appointees of their mother, to sot aside the ajipointment on account of the unfairness of the distribution, it was held, that all the other children who were appointees need not bo parties, k'cause they niif^ht go in before the Master. But although an executor or administrator, as representing the personal estate and all those interested in i(, may sue for the recovery of any part of that estate, without making the persons beneficially interested parties to the j)roceeding, yot, whero there tiro more than one executor or administrator, thoy must all bo parties, though one of them be an infant.' Whore, however, one executor of several has alono roved, it has been held that ho may sue without making the other executors parties, although they have not renounced.' In this respect the rule of Courts of Equity is different from that of Courts of Law: as there, if there bo several executors or administrators, they must all join in bringing actions, though some have not proved the will.* And whero a person devises that his executors shall sell his land, and leaves two executors, who renounce, and administration is granted to A., who brincroro the Court, Lin-d Ilard- wicke held the objection good." Another objection in the same case was, because certain annuitants of the son, upon his reversion after the death of his father, were not parties ; and Lord Ilardwicke held, that he could not make the oi*der prayed imtil the annuitants were first heaixl, and that, consequently, the objection must be allowed. From this it would seem, that although a remainderman in tail may maintain a suit, without bringing the persons entitled to subsequent remainders before the Court, yet, if he has charged or encumbered his estate in remainder, the persons inter- ested in such charge or incumbrance must bo parties ; and it is held, that a person claiming under a limitation by way of executory devise, not subject to any preceding vested estate of inheritance by which it may bo defeated, must bo a party to a suit in which his rights are involved ; but executory devisees not in esse, may be bound by a decree against the first estate of inheritance.' Where the intermediate estate is contingent, and the person to take is not ascertained, it is sufficient to have before the Court the trustees to support the contingent remainder, together with the first person in esse entitled to the first vested estate of inheritance.* Lord Hardwicke, iii Hopkins v. Hopkins, ' states the practice upon this point thus : " If there are ever so many contingent limitations of a trust, it is an estab- lished rule, that it is sufficient to bring the trustees before the Court, together with him in whom the first remainder of the inheritance is vested ; ahd all that may come after will bo bound by the decree, though not in esse, unless there be fraud or collusion between the trustees, and the first person in whom a remainder of inheritance is vested." In > Herritig y. Toe, 1 Atk. 290. ' Pyncent v. Pyncent^ 3 Atk. 6T1. » Ld. Red. r,4. « iMrd Cholmmdeley v. Lard Clinfm, 2 J. A W. 1, 133. ' 1 Alk. 690 ; but as to the report of this case, see 2 J. &. W. IS, 10}. ■ O 188 Hrties to a suit. Lord Cholnwndelcy \ . Lord Clinton,* in whk-h Iho cstnto which wbh Iho Hubjoct of litigation wom Huttlcd upon Lord Clinton for life, and, nftor romaindurM U) his children (who were unborn), and thoir hoirs in tail, upon the pcrnon who should then bo ontitlu 9J. AW. 1,133. « Ld. Red. 174. » Lloyd V. Johneg, 9 \cs. tn, 58. PAIITIEH IIAVINU ((►NrirKKBNT INTEUEKTH WITH PI.AINTIKK. 180 ilHiii pi'iiK'i|mlly huciI; hocaiHc, ii'tlic ]>liiiiititt' fails in liinclnim, (hu Mil initst Ik> riator of tithes is not a proper party to a suit l»y a Vicar a.6l}ii .lac. 95; Jially V. Worrall, Buub. 116; Cooke v. Jilunl, 2 Sim. 417. Tooth v. Dean and Chapttr qf Can- t'Tbury, 3 81m. 4«. J Per L. 0. B. Alexander, in Wing v. MorreU, WCl. & Y. 025. ' Ibid. * lioherUion v. Great Western liailwau Company, 10 Sim. 314; ITiimphrewv. IIolUs, Jac. 75; Pater- fonw J!>>nj7, 5 Beav. l&O ; Peacock y. Pennon, 11 Benv. J»5; 18 Jur. 951; Petre v. Duncombe, 1 Hare 24 ; eeo however, Daking v. Whimper, 20 Ik-av. COS. » Iloorf V. White, 4 M. & C. 483. • Talker v. SmaU, 8 M. & C. 03 ; IJur. 936 ; but eeo West Midland Railway Company, v. Nlxon^ 1 U. & M. 176. 190 PARTIKS TO A SillT. howovor, that iiiHomo (iiiHOH, whoro, Hiilwocnu'iilly (o llio coiilracl, anotlur IKTHon hiiH acqiiiiHMl an intrrowt iiiulor tho vondor willi notit'r oi' \\w rights oflho imirliasor, Uio laKor Iuih, in a unit fin- Hpocilic lu'rlbrniMuc, Ikjom allowed to join Huch pui'Mon with thu vendor as a defcmhmt to the HUit.' Fonnci'Iy, it was tljo invariahlo praetieo to require the lieir-at-law to bo a i)arty to the Huit, in all eases where the trusts of a will of real estate were sought to he exoeuted. This praetieo arose from the peeuliar ]>rinei|)le adopted in eases of wills relating to real estate : namely, thai the Court would not earry into etfect a will of real estate until the duo execution luul been cither admitted by the heir, or provetl againHthiui; and for this purpose, it was necessary that the heir slould be mmle an atlvei-se party. The case of an heir-at-law was, thereiore, an exception to the rule above laid down, that persons claiming under titles incon- sistent with those of the plaintitf, need not Ih) made parties to the suit. Although, however, the heir-at-law was a necessary party to suits instituted for the purpose of making devised estates applicable to the payment of debts, lie was not a necessary party to suits instituted by creditors, claiming under a deed whcreb}' estates had been conveyed to trustees to sell for payment of debts : unless he was entitled to tho surplus of the money arising from tho sale. Even before the last-mentionod order, there wore some cases in which tho Court Avould direct tho execution of the trusts of a will, where tho hoii'-at-law was not a party; thus, where a trustee liad boon dcjul several years, and freehold lanils, subject to the trust, liad boon quietly enjoyed under tho will, a sale was decreed without the heir being a party." Ho, where tho heir-at-law was abroad, or could not be found, or made default at tho hearing, tho trusts of a will have been executed in his absence, but without a declaration that tho will was well proved;' and oven upon some occasions the Court has, upon due proof of tho execution of the will and of the sanity of tho testator, declared the will well proved in the absence of tho heir.* As there is no provision in tho General Order above referred to,* to make evidence of tho cxecut ion of a wi 1 1 and the sanity of the testator, taken in the absence of the hoir-at-law, admissible against him, or any ono claiming under him, tho Court still continues unable, by decree in » Sjtence v. IToag, 1 Coll. 225 ; ColleU v. Hover, ib. 227 ; but see Cutis v. Thodey, 13 Sim. 900 ; .Jur. 1027 : 1 Coll. 218 n. (a) 223 n. ; see al»o Letu'tj v. Hillas, 3 Do G. dc J. 110 ; 4 Jur. N. 8. 11(36. ' Harris v. Ingledew, 3 P. Wms. 91, »1. There .\8 no Order in this rrovince Bimilar to the En^'liah one refcrrea to, being Order 7. 1. » French v. Baron, 1 Diclt. 138 : 2 Atlt. 120 ; Stokc» v. Taylor, 1 Dick. 319 ; Cator v. BuUtr, 9 Dick. 438; BraithwaiU v. Bobi.son, ib. 439 n. * Banister v. TFay, 9 Dick. 699; WilUams v. Whini'ates, 2 Bro. C. C. 899; Seton, 224. et wq. ; Ld. Red. 173. »Ord. Vn.l. ^) PKUHnNs n.\viN«j roNrrimKNT intkrestr with plaintiff. 191 liJK al)Hi>ii('(% to insur(> \hv (iiK> against his i-i^^litH. It was foniuM'ly tlio )ii'a('tit'o, wlu'iv tlio hfir at-ia\v could not Iki IuuikI, to maki) the Atloim-y- (miumuI a j)arty ton lull lor i-arryiii^ thi^ (rust« ol' a (U'vino of roal fstatus into i>X(H-ii(ion, oii tlio Mi|>|io>tilion that thu escheat in in the Crown, if the will set up Uy the lill should he suhjcct to ini)>eachinent ir any person should claini the escheat against the Crown, that pei'son may he a necessary party ' The rule \vhi<'h hsis U>en hcr>re noticed," thatpersonsclainnii^ under titles which are inconsistent with that of the pluintitV should not he made jiarties to a suit, oven Ihou^^h they are in a situation to molest tlii^ di'fendant in the event of the plaintill' bein^ unsuccessful in estah- lisliiiii^ his claim, is eipially applicable to pri>hihit tlieir liein^ made parties as co-plaintiUs or as defendants. Thus, in t'lo lase of the At- tonH'jj-Gfncnif v. Tarrhujttin,^ wlu-re an information and hill were ox- liihited in the Kxchc([uer hy the Kin;j;'s A^'orney Geneni] and the (^licen-Dowager, and her trustees, a8 plaintiL.., against the lessees of (ho (^uer !i, of certain lands which had been granted '. hor by the Crown I'or her jointiiro, in -.cspect of the breach of the covenants in thoir loiiH's: it was held, that (he Klni; and Qneen-Dowajrer could not join, lii'iause their interests were several ; and so, in the case of J r>rd Chol- iiioikIcIci/ v. Lord Clinton,* where a bill was filed by two ]>crsonH, one clainiing as devisee, and the other as lieir-at-law, and the question was, whether they could maintain a suit to redeem a mortgage, on the alle- gation that questions having arisen as to which of them wns entitled to the estate, they had agreed to divide the estate between them, Sir Thomas IMumer, M. R., strongly expressed his opinion that the Court could not proceed on a bill so framed. In a subsequent case botwoon (ho same parties, the title of the plaintiff" was stated in the same way as in the tirst, and Lonl Eldon, though ho allowed a demurrer which WHS ]uit in to the bill upon other grounds, expressed a very strong opinion, that two ])ersons claiming the same thing by different titles, but averring that it is in one or the other of them, and each contending that it was in himself, could not join in a suit as co-plaintiff's. His Lordship said, " that the difficulty of maintaining a suit Avhere there aro two plaintiff's, A. and B., each asserting the title to bo in him, is this: that if the Court decides that ^. is entitled, and the defendants do not complain, how is £., siti a co-plaintiff; to appeal from that decree ?"» 4 o It 5: ' Ld. Ked. 178. » Ante. » Hardre»,219. < 8 J. & W. Iia5 ; affiimed. 4 Bli. 1 ; Sugil. Law Prop. 61, 71 ; see also Fulham v. J/' Carlhy, 1 H. L.Ca. 703:12Jur.757. ' Lord Cholmondeietj v. lord ainfon, T. & R. 107, 116. 192 PARTIES TO A SUIT. And in iho vano- of Saumarez v. Saunmrez,* whero llio interests ol' u fathor and his rhildren, wlio were joined as co-plaintiffs in the sull, wore at variance one with another, LoiyI Cottonham saitl, that as Ihe record was framed, it would bo quite irregular to make any adjudication concerning their conflicting interests, and directed a new bill to bo filed. In a case bolbro the oame judge, when Master of the EoUs, whero a bill hml been filed by the settlor in a voluntary settlement, for the purpose of avoiding the settlement, in which another person clainiing as a purchaser, under the 21 Eliz. c. 4, against the parties entitled under the voluntary settlement, was joined as a co-plaintiff, his Honor hold, that as the settlement was of personal property it was not witliin Iho statute, and that, consequently, the purchaser not having the protect ion of the statute, could not have a bettor title than the settlor from Avhom he purchased; but that if ho had shown a good title in himself, he could have had no relief in that suit, having associated himself as a co-plaintiff with the settlor: it having been decided, in several cases, that under such circumstances no decree could bo made, although the plaintiff might, in a suit in which be was sole plaintiff, have been entitled to reliefs Upon the same principle it has been held, that a person who is lialtlo to account to the other plaintiffs, cannot bo joined as co-plaintiff* ^ It should be here observed, that the consequences of a misjoindci* of plaintiffs, such as above considered, are no longer the same as formerly, lor then the bill would have been dismissed ; whereas now, the Cuiu't is empowered to grant such relief as the circumstances of the case re- quire, to direct such amendments as it shall think fit, and to treat any of the plaintiffs as defendants.'' . . \ The rule, that persons claiming under different titles cannot be joined as plaintiffs in the same suit, does not apply to cases where their titles, though distinct, are not inconsistent with each other. Thus, 9,11 the creditors of a deceased debtor, although they claiiji under distinct titles, may be joined as co-plaintiffs in the same suit, to administer the assets of the debtor : although it is not necessary that they should bo so joined, as one creditor may sue for his debt against the personal estate, without » 4 M. & C. 39G ; 8ee also Bobei'tsoa v. Sovthgate, 6 Hare 636 ; but see Griggs v. Staplee, 2 De G. * S. 673 : 13 Jur. 39, which was a suit to set aside a settlement, as a fraud on the marital rijt" Sir J. L. Knight Brace, V. C, there said, that if the case had been proved, he should probi have relieved against the transaction, aithobgh the wife was a co-plaintiit': see De O. & S. » BiU V. Cfuretoti, 2 M. & K. 503, 512, » Jacob V. Lucas, 1 Bcav. 486, 443; Griffith v. VanJteythvymi, 9 Hare, 86 : 15 .Tar. 421 ; but it would appear that the objection does not apply to a sole plaintiff uniting in liiinself two conflicting Interests : MUea v. Durnford, 2 De G. M. & O. Oil ; Carter v. Sanders, a Drew. 948. < 15 & 16 Vic, 0, 86, 8, 49. For cases of misjoinder since the Act, sec Clemen fs v. Bow«$, 1 Drew. 684 ; Evam v, Coventry, 3Drew, 76 : 9 Jur. N, 8, 657 : 6 Do O. M, & G. 911 ; Beeching v, JMnid, S Drew, 927 > WiUiamt v, 8almona,Jt K, A J, 463 : 2 Jur, N. 8. 261 ; Stupart v. ArrmmUK^ 8m. A e. 176 ; BarUm v. Barton, 3 K, * J, 512 : 3 Jur. N. 8, 808 ; Carter v. Sanderi, 2 Drew, 248 ; and seo our Orders 53, 54 and 65, which are a copy of S. 49 of the Imp. Bta. 15 & 16, Vic. 0. 86. PABTIES HA VINO OONOURRKNT INTERESTS WITH PLAINTIFF. 193 bringing the other creditors before the Court. • Tho joining, however, of Bevoral creditors in the same suit, although it might save tho expense of 8e\reral suits by di£ferent creditors, might, novei'theless, where tho creditors are numerous, be productive of great inconvonifinco and delay, by reason of the danger which would exist of continual abatements. Courts of Equity have, therefore, adopted a practice which, at tho same time that it saves the expense of several suits against the same estate, obviates the risk and inconvenience to be apprehended from joining a groat number of individuals as plaintiffs, by allowing one or more of such individuals to file a bill on behalf of themselves and tho other creditors upon the same estate, for an account and application of the estate of the deceased debtor : in which case, the decree being made applicable to all the creditors, the others may come in under it, and obtain satisfaction for their demands, as well as tho plaintiffs in the suit ; and if they decline to do so, they will be excluded the benefit of the decree, and will yet be considered bound by acts done under its authority." It is matter rather of convenience than indulgence, to pennit such a suit by a few on behalf of all the creditors, as it tends to prevent several suits by several creditors, which might be highly in- convenient in the administration of assets, as well as burthensomo to the fund to be administered : for if a bill be brought by a single creditor for his own debt, he may, as at Law, gain a preference by the judgment in his favor over the other creditors in the same degree, who may not have used equal diligence.' In suits by one creditor, on behalf of himself and tho others, for administration of the estate of a deceased debtor, the defendant may at any time before decree, have the bill dismissed, on payment of the plaintiffs debt and all the costs of the suit.* In suits of this nature the plaintiff cannot waive an account against tho estate of a deceased administrator of the debtor. < If the debt of the plaintiff be admitted or proved, and the executor or administrator admits assets, the plaintiff is entitled at tho hearing to s S ' Anon. 3 Atk. 679 ; Puieoek v. Monk, 1 Vcs. 8. 181. ' Ld. Red. 166. * lllii: tee Attorney- Oeneral V. Got ,itAwait«, i Cox, 46, where it was admitted at the bar, that where a single Woodgat4 v. Field, 2 Haro, 211 : 6 Jar. 871 ; tcealBo Owens v. Dickinson, C. & P. 48, 56: 4 Jur. 1151; Meld y. Titmus, 1 Sim. N. S. 818: 15 Jur. 121. For form of decree for payment, see llutim V. Rossiter, 1 Do Q. M. & G. 9. Seton, 116, No. 3. « Savage v. Lane, 6 Hare, 82 ; Field v. Titmus, vbi svp ' Leigh v. Thomas, 2 Vcs. 8. 812, 813. * Bedford v. Leigh, 2 Dick. 707 : Johnston v. Oompton, 4 Sim. 47 ; May v. Selby, 1 Y. & C. C. C. S8B 3 Jur. 62 ; Blair v. Ormond, 1 De G. ifc 8. 428 : 11 Jur. 665 ; Pmsford v. UarOey'i J. & H. 736 Seton, 117. See form of contingent prayer, in a bill by one creditor, Tomlin v. TonUin, 1 Hare, 238. In snch cases, leave to amend will generally be given at ttie liearing ; see cases above cited. » Oorru V. Trist, Ld. Red. 167; see, however, flarr<«)» v. iSfewardson, 2 Hare, 680, wliere Sir J. Wigram, V. C, decided, that twenty creditors, interested in a real estate, were not so large a number as that the Court would, on the ground of inconvenience alone, allow a few of tbem to represent the others, and dispense with such others as parties, in a suit to recover the estate ' against the whole body of creditors ; see also Bainbridge v. Burton, 2BeaT. 639. • Michie.y. Charles, 1 Grant, 123 ; and see Le Targe v. De Tuyle, 1 Grant, 227. PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 195' one at least of each class ought to have boon brought before the Court. ' It is to be observed, that in suits for mai*shalling assets, simple-con- tract creditors must be joined as plaintiffs, as well as creditors by specialty ; for, upon a bill by specialty creditors only, the decree would be merely for the payment of the debts oat of the personal estate, and if that should not prove sufficient for the purpose, for the sale and application of the real estate. The right to call for such an arrange- ment of tho property as will throw upon the real estate those who have debts payable out of both descriptions of estate, in order that tho person- alty may be left clear for those whose demands are only payable out of the personal estate, belongs to tho simple-contract creditors : who have an equity either to compel the payment of the specialty debts out of the real estate, or else to stand in the place of the specialty creditors, as against the real estate, for so much of the personal estate as they shall exhaust. It is proper, therefore, in bills of this nature, to file them in tho names of a specialty creditor and of a creditor by simple contract, on behalf of themselves and of all others the specialty and simple-contract creditors. By analogy to tho case of creditors, a legatee is permitted to sue on l)chalf of himself and tho other legatees: because, as he might sue for his own legacy only, a suit by one, on behalf of all tho legatees, has the same tendency to prevent inconvenience and expense as a suit by one creditor on behalf of all creditors of the same fund.^ For the same reason, where it has been sought to apply personal estate amongst next of kin, or amongst persons claiming as legatees under a general descrip- tion, and it may be uncertain who are the persons answering that description, bills have been permitted by one claimant on behalf of himself and of other^ equally interested. " So also, in the case of appointees under the will of a married woman, made in pursuance of a power, where they were very numerous, a bill was permitted by some on behalf of all.* But the right of a few persons to represent the class is not conf ned to tho instances of creditors and legatees ;* and the necessity of tho case has induced the Court, especially of late j^ears, frequently to depart form tho general rule in cases where a strict adherence to it would probably amount to a denial of justice, and to allow a few persons to sue on behalf of groat numbers having tho same interest ; « thus, some of tho proprietors ' Weld V. Bonham, 9 S. & 8. 91, 93: and see Richardson v. Uastings, 7Bcav. 3S3; Smart v. Bradstock. ib. 600. » Ld. Red. 167. ' /& 169 ; see now 15 & 16 Vic. c. 86, s. 43, r. 1, and our Ordere No. 68. * Manning v. TfieHger, 1 S. * 8. 106 ; anfe. » Per Lord Eldon, in Uoyd v. Loaring, 6 Vee. 779. ' Ld. Bed. 169. 196 PARTIES TO A SUIT. of A trmling uiulortnkin^, whore tho sharoH hnd boon nplit oi' divided into 800, woro ponnittcd to mnintain n Huii un bohairoi'tliomHolvoHand olIioi'H, for un uocouni n^ainHt some of their co-parinorH, without bringing' tho whole bofoi'o tho Court,' "boeauHo it would have l)oon impractioabh< to make tliem all ])artioH by name, and thoro would Ito continual ubatc- mont by death and otherwiso, and no coming at juntice, ifthoy woro (<» bo mailo parties;" and ho, whore all the inhabitantH ofa parihtain ofa privateer, on behalf of himself and i)f all other tho mariners and persons who had signed certain articles of agroement with the owners, for an account and distribution of thoi)rizos mado by tho ship.* And in Lloyd v. Loaring,'^ Lord Eldon expressed his opinion, that some of the members of a lodge of Freemasons, or of one of the inns of Court, or of any other numerous body of persouH, might sustain a suit on behalf of thomsolvos and the others, for tho de- livery up ofa chattel in which they woro all interested. In Cockbumv. Thompson,'^ which was tho case ofa bill fded by sovoral persons on behalf of themselves, and of all other proprietors of tho Phil- anthropic Annuity Institution, praying that tho institution might l)o dissolved, and an account taken against tho defendant : Loixl Eldun overruled a plea, which objected that a groat number of persons, whoso names woro stAted, were proprietors of tho institution, and ought to bo pai'ties to tho suit. But where tho bill sooks a dissolution of tho partner- ship, all tho partners must bo parties : though where the business luvs ceased or become suspended, it is otherwise : and in Cockbum v. Thompson, it appears ft*om the report, that the business could not be carried on lor want of an Act, for which an application had failed.'' In suits of this nature, tho plaintiff, as ho acts upon his own moro > Chaneey, v. Jfay, Preo. in Ch. 692. • Blackhamy. The Warden and Society (ff Sutton Ool G. ^, 696 : 14 Jur. 686 ; MvOock v. Jenkins. 14 Beav. 6S8. ' Van Sandau v. Moore, 1 Rubs. 441, 466 ; Lotell v. Andrew, 16 Sim 681, 684 1 11 Jar. 486 ; Bain- bridge V. Burton, a Beav. 689. 3i J I 198 PARTIES TO A SUIT. the subscribers to a loan of money to a foreign state, filed a bill on behalf of themselves and all other subscribers to that loan, to rescind the contracts of subscription, and to have the subscription monies re- turned, Lord Eldon held, that the plaintiffs were not entitled, in that case, to represent all the other subscribers, because it did not necessarily foUow that every subscriber should, like them, wish to retire from the speculation, and every individual must, in that respect, judge for him- self. ' And upon the same principle, one of the inhabitants of a district, who claims a right to be served with water by a public company, can- not file a bill on behalf of himself and the other inhabitants, to compel that company to supply water to the district upon particular terms : because, what might be reasonable with respect to one, might not bo so with regard to the others.' Whei*e, however, it is perfectly clear that the object of the suit is for the benefit of all the parties interested, a few may maintain a bill on behalf of themselves and the others, even though the majority disapprove of the institution of the suit. Thus, where an act complained of was necessarily injurious to the common right, Sir John Leach, V. C, suffered a few of a large number of persons to maintain a suit on behalf of themselves and the others for relief against it : although the majority approved of the act, and dis approved of the institution of the suit.' Upon the same principle, in Small y. Attwood,* a few shai'eholders of a Joint-Stock Company were permitted to maintain a suit on behalf of themselves and other share- holders, for the purpose of rescinding a contract : it being manifest from the evidence, that it was for the benefit of all the shareholders that the contract should be rescinded. The great increase in the number of Joint-Stock Companies, and trading associations, in which large classes of persons are jointly inter- ested, has had the effect, in modern times, of extending tiie p 'actice which allows a few persons to sue in Equity, on behalf of t .,. vi'^s and othe:^ similarly interested. In the case of Walworth > , J ..^ tfift bill was filed by the plaintiffs, on behalf of tliemselves Q,m .,' other the shareholders and partners in the banking company, called the Im- perial Bank of England, except those who were made defendants. It did not, in terms, pray a dissolution, or a final winding-up of the affairs of the company, but it prayed the assistance of the Court in the reali- > Jones V. Garcia Dd Bio, T. & R. S97, aOO : in which case, the plaintiffs had each a separate rigbi to sue ; and Lord Eldon also held, that as ths plaintiffs conld not support their bill, suing on behalf of themselves and others having similar rights, they could not, having 'tturee diBtlnct demands, file one bill, tb. SOI. See also Croikey v. TAe Bank qf Wales, 4 Glff7M4 : 9 Jar. N. S 696. » Weale v. West Middlesex Watertoorks, IJ. & W. 868, 3TO. * Bromley v. Smithy 1 Sim. 8. « Younge, 4OT, 456. • 4 M. AC. 619. PERSONS HA VINO CONCURBENT INTERESTS WITH PLAINTIFF. 199 Ration of the assets of the company, and in the payment of its debts, and that for that purpose a receiver might bo appointed, and authorised to sue for calls unpaid and other debts duo to the company, in the name of the registered officer, who was one of the defendants. To this bill a demurrer was put in : upon the argument of which, the two most important objections to the bill were, 1st, that it was not the practice of the Court to interfere between partners except upon a bill praying a dissolution ; and, 2ndly, that all the parties interested in the concern were necessary parties to the bill. Lord Cottenham overruled the demurrer, and in his judgment observed,* that the result of the two rules — the one binding the Court to withhold its jurisdiction, except upon bills praying a dissolution, and the other requiring that all the partners should be parties to a bill praying it — would be, " that the door of this Court would be shut, in all cases in which the partners or shareholders are too numerous to be made parties : which, in the present state of the transactions of mankind, would be an absolute denial of justice to a largo portion of the subjects of the realm, in some of the most important of their a£fairs. This result is quite sufficient to show that such cannot be the law : for, as I have said upon other occasions,^ I think it the duty of this Court to adapt its practice and course of proceeding to the existing state of society, and not, by too strict an adherence to forms and rules established under different circumstances, to decline to administer justice and to enforce rights for which there is no other remedy. This has always been the principle of this Court, though not at all times sufficiently attended to. It is the ground upon which the Court has, in many cases, dispensed with the presence of parties who would, according to the general practice, have been necessary parties." In the case of Taylor \. Salmon,^ the plaintiff and threoi other persons, described as directors and co-partners of a certain mining company, on behalf of themselves and all other the co-partners of the company, obtained a decree for the specific performance of a lease to the plaintiffs, according to the terms of an agreement entered into be- tween the two defendants, one of whom was a shareholder in the com- pany, and was proved to have acted as agent for the plaintiffs in negotiating the lease with his co-defendant ; and an objection that such defendant was a shareholder, and that therefore the plaintiffs could not sue on his behalf, was overruled.* A suit for the purpose of setting aside an election of directors of a > 4 M. A; C. 686. » See Mare v. Malachy, 1 M. & C. 659, 679 ;. Taylor v. Salmon, 4 H. & C. 34, 141. MM. A 0.184,188. * See also MOUgan t. Mitehell, 3 H. & O. ■» : 1 Jar. 888 ; Hlehens t. Congreve, 4 Suss. 663, 674 } Sordon v. Am, 8 Hare, SS8,3^ ; Apperly v. Page, 1 Phil. 779, 786 : 11 Jur. 271 ; Siehardaon v. Hastings, 1 BeAv. 888, a««, 11 Beav. 17 : 8 Jur. 78 ; Beeching v. Uoyd, 3 Drew, 827. 200 PARTIES TO A BUiT. I Corporation, on the alleged ground of fraud, may bo brought by some of the shareholders on behalf of all, and need not be in the name of the Corporation itself* A suit will lie by an individual corporator com- plaining of an illegal diversion of the Ainds which the Corporation holds as trustees, though the plaintiff [may himself have no pecuniar}- interest in the funds so alleged to have been diverted, but ho must Hue on behalf of himself, and all other Corporators." Where the directors i/f an incorporated company misappropriated the f\inds of the Corpor- ation, a bill against them and the company in respect of such misap- propriation, cannot be sustained by some of the stockholders on behalf of all except the directors ; the company must be made plaintiffs, whether the acts of the directors are void or only voidable, and the stockholders have a right to make use of the name of the company as plaintiffs in such proceedings. ^ A bill will lie by some of the inhabi- tants of a municipality. Alleging an illegal application of the funds by tho Mayor, which the Council refused to interfere with.* A bill was filed by a corporator of the Church Society of the Diocese of Toronto, on behalf of himself, and all other members of the Society, to correct and prevent alleged breaches of trust by the Corporation.* In Mozky v. Alston,* Lord Cottenham said, that this form of suit is " subject to this restriction : that the relief which is prayed must be one in which the parties whom the plaintiff professes to represent have all of them an interest identical with his own ; for if what is asked may by possibility be injurious to any of them, those parlies must be made defendants ; because each and every of them may have a case to make, adverse to the interests of the parties suing. If, indeed, they are so numerous that it is impossible to make them all defendants, that is a state of things for which no remedy has yet been provided." It is apprehended, however, that, according to the present practice, the Court will, in such cases, permit the suit to proceed, upon one or several of such parties having interests not identical with the plaintiff, or of each class of them, if there are several classes, being made a defendant to represent the others : unless indeed the object of the suit is to have the partnership or company wound up.' • It does not appear, moreover, that the fact of a company being incor- I Dafddaony. Orange, A QnaiVn. s Armstrong \. Church SocUtj/ qf 7V>ronto, 18 Qntnt fiS2. * HamiUm t. De^ardines i^mal Company, 1 Qrant 1. * Paterton t. Bowes, 4 Grant 170. s Boutton T. Church Sodety,, 14 Qrant 138. * 1 Phil. 790, 796 : 11 Jnr. 816. * Richardson t. Larpent, S T. & G. C. 607, 614 : 7 Jnr. 091 ; Pare v. CUgg, 39 Peav. 689, 003 : 7 Jnr. N. S. 1136 ; see, however, CarUsU t. South Eastern RaUway Oompany, 1 M'N. A O. 689, 099; 14 Jar. 635; Fawcett y. Lawrie, 1 Dr. * S. 193, 906; as to making the 0orporati 3 Hare, 491 ; Bee also Prtrton v. Cfrand CoOter Dock Company^ 11 Sim. 8S7, 814 : 8. C. nam. Pretton V. See also MoOey t. AUton, 1 Phil. 790. Tiff ; 11 Jnr. 815 ; iqrd r. The Oottmor and Oompany of Comtr JAfMff, 9 FUU. 74^749: IS Jnr. 1069; rai they cannot be oonflrmed by the company, inch rafU tdll bo pemtltted :' SMbHiuoh ▼. 27U IfiaUonal Live Stock Inmranee Oompanyi»Bmf. «I8:((jQr.N. B.AtB; 4]>e€r A J.^tt: B Jor.N: S. 909. ' ^/.i'-i-.^^^^ Brac«* ^^t ▼• 2%« Brittih juration IV Atiminet AmelaUon, 4 De a A J. 108,174. PARTIES TO A SUIT. In all cases, whoro one or a few individuals of a largo number, inslitutc a suit on beholf of themselves and the others, they must so deHorik' themselves in the bill ; otherwise, a demurrer or plea for want of i)articH wHl lie. Thus, where a part of a ship's crew appointed two of thtir number to be agents, and a bill was filed by such agents in their own namo. and not on behalf of themselves and the others, a demurrer was allowed for not having made the whole crow parties;' and where a bill was filed by three partners in a numerous trading company, against thu members of the committee for managing the trading concerns of the company, it was dismissed, because it was not filed by the plaintifiH "on behalf of themselves and the other partners, ndt members of the com- mittee."" And the Court is bound to ascertain by strict proof, that the parties by whom the bill is filed have the interests which they say they have. 3 It is to be observed, that the Court will generally allow a bill, which has originally been filed by one individual of a numerous class in his own right, to stand over at the hearing, in order that the bill may be amended, so as to make such individual sue on behalf of himself and the rest of the class.* Section II. — Parties to a Suit, in respect of tJieir interest in resisting the Demands of the Plaintiff. A PERSON may be affected by the demands of the plaintiff in a suit either immediately or consequentially. Where an individual is in the actual enjoyment of the subject-matter, or has an interest in it, cither in possession or expectancy, which is likely either to be defeateil or diminished by the plaintiff's claims ; in such cases, he has an immediate interest in resisting the demand, and all jjorsons who have such im- mediate interests are necessary parties to the suit ; but there may be other persons who, though not immediately interested in resisting the plaintiff's demands, are yet liable to be affected by them consequentially; because the success of the plaintiff against the defendants who are immediately interested, may give those defendants a right to proceed > leiffh T. Thomas, 3 Yes. S. 813. * Baldwin v. Lawrence, 3 S. & S. 18, 36; and see Douglas v. Ebrtfall, ib. 184. * Clay T. BHford, 8 Hare, 881, 888 r 14 Jar. 806. A plaintiff 90 suing mast be a bonaflde Btaareholdn and taeoona Me for Uie benerit of tlie company ; the) sfore, where a director in another conipu; took aliareB for the pnrpoae of filing a bill, and was indemnified by sach company, the billwu AlandMibi, Forrest y.Mdnehester^SheMeld and Idneolnshtre Battway Cbmpany, aoBearO; 7 Jar. N. 8. 749; M. 887: 9 W. B. 818, L. C. ; Bee, also, Colman t. Sastern CounaesMm Company., 10 Beav. 1 ; 11 Jar. 74. * Uoyd V. Loarinq. 6 Ves. 779 ; aee. also, mittgan v. MttcheU, 1 M. & 0. 488 ; Cfwatkin v. Cm0< 1 Jur. N. S. 131, V. 0. W. PERSONS RESISTING PLAINTIFF'S DEMANDS. 203 against thcin, fur tho purposo of compolling thorn to make compon- sutiun, citbur in tho whulo or in part, for tho loss sustained. Tho jKjrsons who aro cSnHoquuntiuUy liable to bo affoctod by tho suit, must frequently also bo parties to it. Tho question, therefore, of who ut'u necessary parties to a suit in respect to their interest in resisting the plaintiffs domands, resolves itself into two, namely : who are necessary parties, y?ra^, in respect of their immediate interest? and secondly, \n rcHpect of their consequential interest ? The reader's attention will bo first di; octod to tho question who are necessary parties to a suit, in rospocc of their immediate interest in resisting the plaintiffs demand. And hero it is to bo observed, that where parties are spoken of as having an interest in tho question, it is not intended to confine tho definition to those only who aro beneficially interested, but it is to bo considered as extending to all persons who have any estate, eithorlegal or equitable, in tho subject-mutter, whether such estate bo beneficial to themselves or not. Under this definition aro included all persons who fill tho character of trustees of tho property in dispute. But where tho trustee is a mere bare trustee, without any estate vested in him, ho need not, in general, be made a party. Thus, a broker or agent signing a contract in his own name for tho purchase or sale of property, is not considered a necessary party to a bill for a specific performance of such contract against his principal. < And so, where a person having no interest in tho matter joins with another who has, in a contract for sale : as where a man, having gone through a fictitious ceremony of marriage with a woman, joins with her as her husband, in an agreement to sell her property, he is not a necessary party to the suit to enforce the contract. =» In all cases, however, in which any estate is vested in an individual filling tho character of trustee, or, if he has no estate, where tJio circum- stances are such that, in tho event of the plaintiff succeeding in his suit, the defendant may have a demand over against him, he is a necessary party. Thus, in Jones v. Jones,' where a plaintiff sought to set aside a lease on the ground of forgery, without bringing before the Court the trustees who were parties to tho lease, and to whom fraud was imputed, the objection for want of parties was allowed : because, if the plaintiff prevailed, the defendant might have a remedy over against the trustees. Upon the same principle, where tho ti^stees of real estates had conveyed them over to purchasers, it was determined that, to a bill by the cestui » Kingrity v. Young, Coop. Eq. PI. 49 ; ante. * 8turg« T. Starr, 9 M. & K. 196 ; and see Fortyth v. Drake, 1 Grant san. *8Atk.llO. , C ^1^- 204 PARTIES TO A SUIT. f que trusts against tho purchasers to sot aside the conveyances, the trustocn were necessary parties. • A trustee, however, wlio is named in a will, btjt has never acted, ntid has released all his interest to his co-trustee, ought not to be niadua party to a bill to set aside tho will on the ground of fraud.' Where a trustee has assigned his interest in the trust-estate to another, it is necessary to have, not only tho trustee who has assigned, but the assignee before the Court.' It is improper, however, to make the agent of a trustee a party ;♦ and a person who had assumed to act as a trustee, though not duly appointed, was held to bo an agent for this purpose.* It was, formerly, generally necessary, where there were more trustees than one, that they should all bo parties, if amenable to the process of the Court;" but this rule has been, in some respects, modified by the General order of tho Court,' which enables a plaintiff who has a joint and several demand against several persons, to proceed against one or more of the several persons liable, without making the others parties;* and oven before this Order, in some cases where they were merely accounting parties, one might bo sued for an account of his own receipts and payments, without bringing tho others before the Court. Thus, where a bill was filed against tho representative of one of several trustees who where dead, for an account of the receipts and payments of his testator, who alone managed the trust, without bringing the represen- tatives of tho other trustees before tho Court, und an objection was taken on that ground, the objection was overruled : because the plaintiff insisted only upon having an account of the receipts and disbursements of the trustee, whose representative v, as before the Court, and not of anyjoint receipts or transactions by him with the other trustees. » And so, where a bill was filed by A., on behalf of himself and other creditors, against B. and C, two trustees of estates conveyed in trust to pay debts, for an account of the produce of the sales and payment of their debts, and the representatives of B. alleged, by their answer, that not only C. but D. also were trustees, and tliat D. had acted in the trust, although they did not know whether he had received any of the produce. Lord < Eauriaon t. iVy««, Bam. 834. * JBiehardion t. JBiMert, 1 Anst. 66. * Burt T. Dennett S Bro. C. C. S36. * AUomm-OenercU v. Earl rtor in this case aildw a quoi^ : iK^caiwo, at tiio bar, tho gonoral opinion was that D's roproscntativoH ought to have boon partios, nor eouhl one croditor suing, waivo, on bohalf of absent partios in joint intorest with hinisolf, tho iHJiiefit or poHniblo bcnotit of any part of tho trust fund. This query Hooms to Ik* in :u'('oi*d- anco with tho principles laid down in Williams v. Williams.^ Whoro a miui que trust socks a general account, ho must bring all tho accounting piirtios before tho Court, notwithstanding tho Order.' Our Order 62, taken from the English onlcr VII. 2, declares that 'Where the plaintiff has a joint and eoveral demand against several persons, either as principals or sureties, it shall not bo necessary to bring before tho Court, as parties to a suit concerning such demand, all the persons liable thereto; but the plaintiff may proceed against one or more of tho persons severally liable." Tho rule which requires tho trui^teos of property in litigation to bo brought before the Court, renders necessary the presence of tho committees of tho estates of idiots and lunatics, in suits against tho idiots or lunatics committed to their care :* bocauso, by tho grant to them of tho CHtatos of such idiots or lunatics, thoy are constituted tho trustees of such estates. Upon tho same ground, the assignees of bankrupts are necessary partios to suits relating to tho bankrupt's property. For tho like reason, wherever a demand is sought to bo satisfied out of the personal estato of a deceased person, it is necessary to make tho personal representative a party to tho suit. Thus, although as wo have seen, a croditor or legatee may bring a bill against a debtor to tho testator's estate upon tho ground of collusion between him and tho exe- cutor,' yet, in all cases of this description, the personal representative must be before the Court. And so, where to a bill for an account of the estate of a person deceased, and to have the samo applied to satisfy a debt alleged to be due from him to the plaintiflf, the defendants pleaded that they were not executors or administrators of the person whose estate was sought to be charged, nor so stated in the bill, and demurred, for that the executors or administrators were tho proper panics to con- test the debt, who might probably prove that it had been discharged : the Court allowed both the plea and demurrer, but gave the plaintiff ■L 1^^ ^ f C •-* > South V. Kinder 1 8 Swanst. 144, n. ; fh>m Lord Colchester's MSS. * 9 Mod. S99. See also WaeUton t. Budge, 1 C. P. Coop. t. Cott. 969: but see Matters v. Bama^ 2 T. & 0. C. G. 616; 7 Jar. 1167; and 8yme» t. (Mynn, and ^ase v. Cheeebrough, cited Seton, 115; andfXMt. ' Cappard v. Atten, 10 Jur. N. S. 688 ; 18 W. B. 948, L, JJ. « Id. Bed. ao. * AUttrney-Qeneral t. IfyniM, Hos. 186, Ante. K 206 PARTIES TO A SUIT. leave to amend his bill as ho might bo advised :» but to a suit concorn- ing a specific legacy, the executor is no longer a necessary party aftoi- he has assented to the bequest ; thus, where a bill was filed by the reversioner against the legatee of a term, praying that the lease might be declared void, and the defendant insisted that, if the lease was set aside, the plaintiff ought to repay the money expended by the testator in the improvement of the promises, the executor of tho testator, who had assented to the bequest, was not considered a necessary party to the 8uit.3 Where an executor had boon outlawed, and a witness proved that he had inquired after but could not find him, it was thought to be a full answer to the objection that he was not a party to a suit which had boon instituted by a creditor of the deceased testator, against the residuary legatee. =• Moreover, in some cases, where the fund, the subject of the suit, has been ascertained and appropriated, the Court has dispensed with the , appearance of the personal representative of the testator, by whose will the fund was bequeathed.* , "* The rule which requires the executor to be before tho Court, in all cases relating to the personal estate of a testator, extends to an executor durante minore cetate, even though the actual executor has attained twenty-one, and has obtained probate thereon ; thus, where there had been an executor during the minority of the daughter and executrix of a testator, and after she attained twenty-one an administration bill was filed against her, without making the executor durante minore a;tate a party : although it was insisted that the daughter, being of full age, was complete executrix ab initio, and had the whole right of represen- tation in her, yet it was held, that the representative durante minore (etate was a necessary party, and that for want of him the cause must stand over.* it is to be observed, however, that if in tho last case the daughter had received all the testator's personal estate from tho hands of the executor durante minore cetate, upon an account between them, the objection for want of parties would have been overruled. The personal rej-resentativo required, is one appointed in England ; and where a testator appointed persons residing in India and Scotianf! > Griffith V. Bateman, Rep. t. Finch, 3»4; Rumneu v. Mead^ ibid. 303; Attorney- General v. Titii- den, ibid. 336. For a case where, under Bpecial circumstances, the executors of tlie settlor of » trust fund would be necessary parties to a suit for administering it, see Judgment of Sal Wigram, V. C, in Gaunt v. Johnson, 7 Hare, 164, 150 : 1? Jur. 1067. « Malpas V. Ackland, 3 Rnss. 278, 277 ; and eee Smith v. Brooksbank, 7 Sim. 18, 21 ; Moor v. En- grave, 1 Oh. Ca. 277. » Heath V. Percival, 1 P. Wms. 684. * Arthur V. Hughes, 4 Beav. 606 ; Beasley v. Kenyan, 3 Beav. 544 ; Bond v. Graham, 1 Hare, 48, 484: 6 Jur. 690 » • . . * Gkut V. Oxenham, 3 Atk. 131. PERSONS RESisTINO PLAINTIFF'S DEMANDS. 207 his executors, and the will was not proved i 1 1 England, but the plaintiff, a 'creditor, filed a bill against the agent of the executors, to whom money had been remitted, praying an account and payment of the money to the Accountant-General for security : a demun'or, because no personal representative of the testator resident within the jurisdiction of the Conr+; was a party, was allowed.* And so, where an executor proved the will of his testator in India, and afterwards came to this country, where a suit was instituted against him for an account of an unadministered part of the testator's estate, which had been remitted to him from India by his co-executor thorc, it was hold necessary that a personal representative should bo constituted in England, and made a party to the suit.^" It seems, that where an administration was disputed in the Ecclesias- tical Court, tlie Court of Chancery would entertain a suit for a receiver to protect the property, till the (question in the Ecclesiastical Court was decided, although an administration ^emfenfe lite might have been obtained in the Ecclesiastical Court. =» And where a party entitled to administer refuses to take out administration himself, and prevents any one else from doing so, he will not be allowed to object to a suit being proceeded with because a personal representative is not before the I' Court. Thus, in B'Aj'anda v. WliittirufJiam,* where the heir of an obligor demurred to a bill by the obligee, because the administrator of the obligor was not a party, the demurrer was overruled : because it ap- peared that he would not administer himself, and had opposed the plaintiff in taking out administration as the principal creditor ; and in a case where the person entitled by law to administration did not take it out, but acted as if she had, . jeiving and paying away the intestate's property, an objection for want of parties, on the ground that there was no administrator before the Court, was overruled.* In the case of Creasor v. Bobinson," however, the Court declined to follow the case last referred to ; and refused to make an order for an account against an administrator de son iort, unless a legal personal representative duly constituted was a party. Where there are several executors or administrators, they must all be made parties, even though one of them bo an infant ;' but this rule ' Lowe V. Fairlie, 2 Mad. 101, 105 ; ace also Logan v. FairUe, 2 S. Jc S. 2&I. ^ Bondy. Graham. 1 Hare, 482 : 6 Jur. (120; Tyler v. JieU, 2 M. & 0. 89, 105: 1 Jur. 20; but see Anderson v. C'aunter, 2 M. & K. 703 ; and Bce observation of Ld. Cottcnham on this case, 2 M. & C. 110. ' Atkfnson v. Hemhaw, 8 V. & B. 85, 02 ; Hall v. Oliver, ibid., 96 ; see also, Watkins v. Brent, 1 M. AC.9'M02; Whitworthy. TV/(yrfrfon, 2 M'N. & G. 62 : 14 Jur. 148; (htmming v. FroKr, 28 Beav. 614; Dimes v. Steinberg, 2 Sm. & G. 75. * Mo8. SI. ' mand y. Cleland, Free. Ch. 64. ' 14 Bear. 589 : 15 Jur. 1049 ; Bee also Cooke v. Oittings, 21 Beav. 497. ' -Scurry v. Morse, 1» Mod. 89 ; OJfley v. Jerncy, 3 Ch. Rep. 98 ; ante. Cowtleui V. Celtfi vM sup. ; but if they are all out of the jurisdiction, an administrator diirank (U>9entia most be appointed : Donald v. Bather, 16 Beav. SO. * Went. Off. Ex. 96; Striekiand v. Stfietland, 13 Slra. 468; bnt the plaintiif may make him a party if he has acted v executor: Ticker* v. BeU, 10 Jnr. N. S. 876, L. JJ. * Brown v. Pitman, Gilb. Eq. R. 75 ; 16 Vin. Ab. Party, B. 361, Fl. 19 ; and see Dyson v. J/orm 1 Hare, 418, 431 : 6 Jnr. 907. « Amoldy. Btencotos, 1 Cox. 496. > Ord. vn. 3 ; similar to our Order No. 63. * HaU V. AusUn, S OoU. 670 : 10 Jur. 463. T SmiOiy T. Einton^ 1 Vem. 81. ■ Bowyer t. Ooesrt, ib. 96. * C&wOad V. Cdy, Free. Ch. 88. >• YmUams t. mWonw, 9 Mod. 309 ; PKaps v. Sproule, 4 Sim. 818, 331 ; HoUand v. Prior, 1 M. i> K. 387; MasUn t. BantM, 3 T. A C. 0. 0. 616 : 7 Jur. 1107 : Ung v. Colman, la Bear. 310, 874 ; HaU Y. Aiuttn^ 8 OoU. 670 : 10 Jar. iM ; Clark t. ff«Mt 16 Sim. 161 : 13 Jur. 615. PERSONS RESISTINQ PLAINTIFf's DEMANDS. 209 sought to charge his estate : but where this is not the case, to introduce into the bill an allegation that the deceased executor fully accounted with the survivor, and that nothing is duo from his estate to the estate of the testator, and not to make his representative a party to the suit. ' The fact of such deceased executor having died insolvent, or without having received assets, would in all cases probably prevent his executors being proper parties.^ If a bill is filed against a married woman who is an executrix, or lulministratrix, her husband must also be a party, unless he has abjured the realm. 3 In Taylor v. Allen,* however. Lord Hardwicke granted an injunction to restrain a wife executrix from getting in the assets, her husband being in the West Indies, and not amenable to the process of tde Court, on the ground that, if she wasted the assets, or refuf^d to pay, a creditor could have no remedy, inasmuch as her husband must be joined as a party to the suit against her. Wiiere a bill had been filed for an account of a testator s estate, and it was objected that one of the executors w^as not a party, he was ordered to be introduced into the decree as a party, and to account without putting off the cause to add parties ; * but this can only be done where the person appears, and submits to be bound as if originally a party." It seems, that where a power of sale is given, by a will, to executors, and they renounce probate, they will not be considered necessary parties to the suit ; thus, where a testator had devised that his executors should sell his land, and be possessed of the money arising from the sale upon certain trusts mentioned in his will, and made B. and G. his executors, who renounced, whereupon administration with the will annexed, was granted to one of the plaintiffs : upon a bill brought by the cestui que trusts of the purchase money, under the will, against the heir, to compel him to join in a sale of the lands, it was objected that there wanted parties, in regard that the executors ought to have been made defendants, for notwithstanding they had renounced, yet the power of sale continued in them; and the objection was overruled, there being only a power and no estate devised to them.' It should be noticed, that a query has been added to the decision upon this point by the reporter ; and the doubt suggested appears to be justified by the opinion ' See Whittinglon v. Ododing, 10 Hare, App. 89 ; Pease v. Cheesbrough , Seton, 115. For form of decree, where plaintiff does not, by Ills bill, seeic to charge ii tfeceased co-executor'« estate, Bee ib. ' Bee 8yme» v. Glynn, Seton, 116. ' Ld. Red. 30. • 2 Atk. 213. • Pilt V. Brewster, 1 Dlelc. .37. And so, as to the husband of an nccountinK party, Sapte v. Ward ICoU.ai. • Seton, 1116. ' Yates V. Comptw, 2 P. Wms. 308. 14 ^ iji 210 PAEtlES TO A SUIT. expressed both by Lord St. Leonards and Mr. Preston, viz., that where a power is given to executors, they may exercise it, although they re- nounce probate of the will.' It is to be observed, however, that in the case of Keates v. Burton,'^ referred *to by Lord St. Leonards (which was a case of a discretionary power given by a testator over the application of the interest of a money fund to his trustees and executors, one of whom died, and the others renounced). Sir William Grant, M. E., re- marked, ''that the power is given to the executors, but they have not exercised it, and they have renounced the only character in which it was competent to them to exercise it:" and in the case of Earl Gran- ville V. MNeill,^ were it was Iield that the two executors who had proved, could exercise a power of appointment given to their testator. his executors, administrators, and assignees, although a third executor, who had renounced, was also named in the will, Sir James Wigram, V. C, said " I have referred to Sir Edward Sugden's book on Powers, but find nothing to make mo doubt the , sufficiency of the appointment. The question in all such cases is, whether the confidence is reposed in the individuals named, or in the persons who, de facto, fill the given office."* It is right, in this place, to recall the attention of the reader to the rule which has been before noticed, that the executor or the adminis- trator of a deceased person is the person constituted by law to represent the personal property of that person, and to answer all demands upon it; and that, therefore, where the object of a suit is to charge nuch personal estate with a demand, it is sufficient to bring the executor or administrator before the Court ; * thus, it has been held, that in a bill to be relieved touching a lease for years, or other personal duty against executors, though the executors be executors in trust, yet it is not necessary to make the cestui que trusts, or the residuary legatees parties.* And so, where a bill was filed against an executor, to compel the trans- fer of a sum of stock belonging to his testatrix, and the executor, by his answer, stated that the residuary legatees claimed the stock, an objection for want of parties was held to be untenable."' In like manner, where a testator gave different legacies to three persons, and they wore to abate or increase, according to the amount of the personal estate : to a bill against the executor by one legatee, » Sugd. Pow. 118 ; l)ut see ib., 880; 2 Frost. Ab. 264. a 14 Ves. 434,487. 9 7 Hare, 166 : 13 Jur. 953. * See WmB. Exors. 261, 858. » Ld. Red. 166 ; MickUthwaite v. Wimtanley, 13 W. R. 210, L. J. J. anU. • Anon. 1 Vem. 261 : 1 Eq. Ca. Ab. 73, PI. 13 : Lawrnn v. Barker, 1 Bro. C. 0. 308; Lovev.Jaemh. ib.n. 1 Brown y. Dotvthwaite, 1 Mad. 446 ; and sco Jones v. Hoii', 7 Hare, 267 : 12 Jur. 297, and Harrison V. /SAaw,2Chain. R. 44. PERSONS RESISTING PLAIN^PF's DEMANDS. 211 the executor pleaded that the other legatees ought to be parties, because the account made with the plaintiff would not conclude them, and he should be put to several accounts, and double proof and" charge, but the plea was overruled.' It seems, however, that where a person has a specific lien upon the property in dispute, he must be brought before the Court; and upon this ground, in the case of Langky v. The Earl of Oxford, which was a bill by the specific legatee of a mortgagee against the representative of the mortgagor, for foreclosure, and the defendant pleaded a settled account with the executors of the mortgagee, and a release, it was said by Lord Hardwicke, that he could not see how the private account between the executor of the mortgagee, and the debtor, could discharge the lien on the land ;» however, the bill in that case was afterwards dismissed.' And so, where a husband had specifically disposed of his wife's paraphernalia to other persons : on a bill by the wife against the executor, for a delivery thereof to her, the specific legatees were considered necessary parties.* The assignees of a bankrupt are also, as has been before stated, the proper parties to represent the estate vested in them under the bank- ruptcy; and, therefore, in all cases where claims are sought to be established against the estate of a bankrupt, it is necessary to bring only the assignees before the Court ; and the bankrupt himself, or his creditors, are unnecessary parties. » Thus, it has been held, that a bankrupt is not a necessary party to a bill of foreclosure against his assignees;* and Sir John Leech, V. C, allowed a demurrer put in by a bankrupt, who was made a party to a bill against his assignees to fore- close a copyhold estate, even though there had been no bargain and sale executed by the commissioners.' To a suit of foreclosure against the jussignees of a bankrupt mortgagor, the bankrupt is not a necessary party." A mortgagor who has made a mortgage on lands in this Province, and who afterwards became a bankrupt in England, is not a necessary party to a bill to foreclose by force of the English Statute relating to bankruptcy." It is to be observed, however, that where fraud and collusion are charged between the bankrupt and his assignees, the bankrupt may be made a party, and he cannot demur, although ' Haycock v. Haycock^ 2 Ch. Ca. 124 ; Jennings v. Paterson, 15 Beav. 28. There may, however, be cases where pecuniary legatees are proper parties, as where there is a question of ademption ; Marquis of Hereford v. Count de Zicni, 9 Beav. 11, 15. ' Amb. 17 ; but see Scijeant HUI's note of this case, in Blnnt^s cd. of Amb. App. C. p. 796. 'Reg.Llb,B. 1747, fo. 800. * Nwthey y. Northey, 2 Atlc. 77. ' CoUet V. ITpVeiton, 8 Bro. C. C. 228. • Adam . nolbrook, Harr. by Newl. 30 ; Bainbrtdge v. Pinhorn, 1 Buck. 186. ' Uoya V. Lander, 5 Mad. 282, 288. « Torrance v. Winterbottom, 2 Grant 487. ' Qoodhw v. WMtnwre, 1 U. C. L. J. 124. 5^ ! 212 PARTIES TO A SUIT. relief bo prayed against him. Thus, where a creditor, having obtained execution against the effects of his debtor, filed a bill against the debtor, against whdm a commission of bankruptcy had issued, and the persons claiming as assignees under the commission, charging that the commis- sion was a contrivance to defeat the plaintiff's execution, and that tlie debtor having, by permission of the plaintiff/ possessed part of the goods which had been taken in execution for the purpose of sale, instead of paying the produce to the plaintiff, had paid it to his assignees; a demurrer by the alleged bankrupt, because he had no interest and might be examined as a witness, was overruled.' Subject to the above and certain other exceptions, the rule formerly was, that all cestui que trusts were necessary parties to the suits against their trustees, by which their rights were likely to be affected. Thus, on a bill for redemption, where the defendant in his answer set forth that ho was trustee for A. ; an objection was made at the hearing, that the cestui que trust should have been made a party ; and because it was dis- closed in the answer, and the plaintiff might have amended, the bill was dismissed.2 Now, however, as we have seen, in suits concerning real or personal estate, which is vested in trustees, such trustees represent the persons beneficially interested, in the same manner, and to the same extent, as the executors or administrators in suits concerning personal estate, represent the persons beneficially interested in such personal estate ; and in such cases, it is not necessary to make the persons benefi- cially interested parties to the suit.^ In some cases, however, even before the late Act, where the Cestui qm trusts were very numerous, the necessity of bringing them all before the Court has been dispensed with. Thus, where upon a bill brought against an assignee of a lease, to compel him to pay the rent, and per- form the covenants, it appeared that the assignment was upon trust for such as should buy shares, the whole being divided into 900 shares, and an objection was taken because the shareholders were not parties : the objection was overruled, as the assignees by dividing the shares, had made it impracticable to have them all before the Court.* Formerly, ;,he general rule, in cases where real estates were either devised or »?<^ttled upon trust for payment of debts or legacies, was, that if the ersons to be benefited by the produce of the estate were either named or sufficiently indicated, then that they must be all parties to any suit affecting the estate ; if, however, the bill alleged their great number » King V. Martin, 2 Ves. J. 641, cited Ld. Red. 103. « Whistler v. Webb, Bunb. 58. » 15 & 16 Vic. c. 86, 8. 43, r. 9, and our Order No. 61. « City qf London v. Richmond, 2 Veni. 421. as a reason foi lied that tho a made parties would bo dispe trusts were for alone were alh without bringi they were trus; such cases, gen (/ue/rMS^s being represented by mtui que trusts tho trust mono It was held referred to, tht declared void, i therefore, whei after tho oxecu had been execu that ho allegec obtained from '. had relinquishe not any part in such other cestu tho suit, and lei Where a truste( it is not a neco! the trust estate is brought, suff municipality ii of a trustee ; a; gi'ound of any make the muni money paid, or party to the cai seeking to set s ' Holland v. Baker. » Ld. Red. 174. ' 15 & 16 Vice. 86, 436; and No. 61 • Statu field V. Hobs ' Sogers v. Sogers, ' T^any v. Thonu ' Ford V. ProwUfoc PERSONS RESISTING PLAINTIFF's DEMANDS. 213 as a reason for not making^ thom all partioH, and if the Coiiri was satis- fied that the absentees were sufficiently reprcsonted by those who we're made parties to the record, the preaenco of all the persons interested would bo dispensed with. ' And upon the same principle, where the trusts were for the payment of debts or legacies generally, the trustees alone were allowed to sustain the suit, either as plaintiffs or defendants, without bringing before the Court the creditors or legatees for whom they were trustees ;3 and now, it is conceived that the Court would, in such cases, generally allow the suit to proceed without any of the cestui quetnistsheii\g made parties, considering their interests to be sufficiently represented by the trustees ; ^ except where it might require some of the cestui que trusts to be parties, in ordej* to secure the due application of the trust money.* It was held in 1851, and before the promulgation of our Orders just referred to, that until a deed alleged to have been obtained by fraud is declared void, it must bo deemed a valid and subsisting instrument ; therefore, where at the hearing of a foreclosure suit it appeared that after the execution of the conveyance to the mortgagee a voluntary deed had been executed by him purporting to vest all his property in trustees; that he alleged and had gone into evidence to show this deed void as obtained from him fraudulently ; that somo of the cestuis que trustent had relinquished their interest under the deed, and that the others had not any part in obtaining the deed, and had not executed it ; Held, that such other cestuis que trustent must, notwithstanding, be made parties to the suit, and leave was given to the plaintiff to amend for that purpose.* Where a trustee commits a breach of trust, tho person participating in it is not a necessary party to a suit for the general administration of the trust estate. One devisee of a trustee against whose estate a suit is brought, sufficiently rejDresents those interested in the estate. ^ A municipality in proceeding to a sale of land for taxes is in the position of a trustee ; and if it is afterwards sought to impeach tho sale on the giound of any irregularity in directing such sale, and it is sought to make tho municipality answerable to the purchaser for the purchase ' money paid, or the costs of the suit, tho municipality niust be made a party to the cause.' To a bill filed by one Co-partner against another seeking to sot aside a marriage settlement as having been made by the ' Holland v. Baker, 3 Hare, 68, 74 : Jur. 1011 ; Harrison v. Stewardson, 2 Hare, 530. « Ld. Red. 174. ' 15 & 16 Vic. c. 86, s. 43, r. 9 ; Morley v. Morley, 85 Beav. 253 ; and see Knight v, Pocock, 24 Beav. . 496; and No. 61 of our C. Q. O. *«a>M«eWT. jyo6«o»,16Beav. 189. v ' Sogers v. Sogers, 2 Grant 137. • Ti^any v. Thornton, 9 Grant, 844. ' Ford V. Proudfoot, 9 Grant, 478. \i ^ 214 PARTIES TO A SUIT. settlor at a time when he was insolvent, the trustees and cestui que trust of the settlement are necessary parties ; as they are entitled to have the accounts of the partnership taken, and the assets thereof ap- plied in exoneration of the settled lands.' In a suit by trustees to reduce into possession the trust estate, and in which the existence of the trust estate, is called in question by the defendant, the cestuis que tmstent are necessary parties.^ Where a bill is filed against a trustee by parties claiming adversity to his cestuis que trustent without making them parties to the bill, it is the duty of the trustees to object that the owners of the estate tLvo not before the Court ; where, therefore, a trustee under such circumstances, neglected to object to their not being made parties, the cause was, notwithstanding, ordered to stand over with leave to amend by adding parties, without costs. = Where a mortgagor had conveyed liis equity of redemption to the trustees of his marriage settlement in trust for his wife for life, the remainder to his children, and a bill of foreclosure was filed after his death against the trustees and widow, to which bill the children, being infants, wei-c not made parties, the Court granted a decree containing the usual re- ference to enquire whether a sale orforeylosure would bo more beneficial to the infants, and gave liberty to the Master to make the infants parties in his office, if he should see fit.* We have already seen, that the English 30th Oi*der of August, 1841, of which our Order 61 is almost a copy, did not apply to cases where a mortgagee sought to foreclose the equity of redemption of estates vested in trustees,* but that under the rule of the late Act above referred to, where the trustees are the persons who would bo in possession of funds to redeem, they may properly represent their cestui que trusts;^ though, when this is not the case, the cestui que trusts, or some of them, ought to be parties.' Formerly, in such cases, the cestui que trusts were necessary parties;' but to a suit for the execution of a trust by or against those claiming the ultimate benefit of such trust, after the satisfaction of prior charges, it was not even then necessary to bring before the Court the persons claiming the benefit of such prior charges ; and, therefore, to a bill for the application of a surplus, after payment of debts and legacies, or ' Thomas v. Torrance, 1 Cham, E. 4(5. « Iloulding v. Poole, 1 Grant, 806. » Cleveland v. McDonald, 1 Grant, 415. * Dickson V. Draper, 11 Grant, 362. » Ante. • Hanman v. Biletj, 9 Hare, App. 40 ; Sale v, Kitson, 3 De G. M. & 0. 119 : 17 Jur. 170. ' Gddsmid V. Stonehewer, 17 Jur. 199 ; 9 Hare, App. 88; and the other cases cited, ante. « Osbourn v. Fallotos, 1 R. & M. 741 ; Caiverley v. Phdp, 6 Mad. 299; Faithful v. Hunt, 3 Anst. 751 ; Newton v. Earl qf Eqmont, 4 81m. 674. 684 : 5 81m. 180, 135 ; Coles v. Forrest, 10 Beav. 05:2,657. other incumbi need not bo ni Court, where i mortgagor, or was obliged to money parties that there coul entitled to the ever, it has be< money is ve8t( sufficiently to tmts ought al the trust j)rop It was said plain redeema order to entan or his represer should trace oi make them pi must be before conveyance in having interm* a mortgage is : has acquired mortgagor con him, it must b< costs arising o V. C, in the cj mortgagor to ] were necessari ment of the m It seems fori who had assigi redemption ; ' ' Ld. Red. 175. » Drew V. Harmat ' Palmer v. Earl t R. & M. 741. * Stansjleld v. Hot Tottenham, 10 person interesi » Yates y.Bambly ' Ibid, 288. ' 3 Mad. 266. ' Anon, in the Da PERSONS RESISTINCl PLAINTIFF's DEMANDS. 2]$5 other incumbrancoB, the creditors, legatees, or other incuinbrancors, need not bo made parties. ' According to the former practice of the Court, where money secured by mortgage was subject to a trust, the mortgagor, or any person under him, seeking to redeem the mortgage, was obliged to make all persons claiming an interest in the mortgage money parties to the suit;" and the general rule was considered to be, that there could be no foreclosure or redemption unless all the parties entitled to the mortgage money were before the Court. ^ Now, how- ever, it has been held, that in a redemption suit, where the mortgage money is vested in trustees, the trustees represent the ccsfiii que trusts sufficiently to protect the mortgagor ; but that some of the cestui que trusts ought also to be parties, in order to secure the due application of the trust property.* It was said by Lord Hardwickc, that where a mortgagee, who has a j)lain redeemable interest, makes several conveyances upon trust, in order to entangle the affair, and to render it difficult for a mortgagor, or his representatives, to redeem : it is not necessary that the plaintiff should trace out all the persons who have an interest in such trust, to make them parties j^ the persons having the legal estate, however, must be before the Court; and where a mortgagee in fee has made a conveyance in strict settlement, the first tenant in tail and all those having intermediate estates are necessary parties. « It seems that where a mortgage is forfeited, and the mortgagee exercises the legal rights he has acquired by disposing of, or encumbering the estate, and the mortgagor comes for the redemption, which a Court of Equity gives him, it must be upon the terms of indemnifying the mortgagee from all costs arising out of his legal acts. Upon this principle, Sir John Leach, V. C, in the case of Wetherell v. Collins, ^ above referred to, ordered the mortgagor to pay the costs of the trustees, and cestui que trust, who were necessarily brought before the Court, in consequence of the assign- ment of the mortg£«gee. It seems formerly to have been considered necessary, that a mortgagee, who had assigned his mortgage, should be made a party to a bill of redemption ;« but the law upon the point appears now to be otherwise; ' Ld. Red. 175. » Dreio V. Harman, 5 Pri. 319. ' Paliner v. Harl of Carlisle, 1 S. & S. 4,'23 ; Wetherell v. Collins, 3 Mad. S55 ; Osbourn v. Fallows, 1 R.&M. 741. * Star^fleld v. Uobson, 16 Beav. 189 ; see, however, Morley v. Morley, SS licav. 253 : and Emmel v. Tottenham, 10 Jur. N. 8. 1090 : 8. C. nom. Tottenham v. Emmet, 13 W. K. 123, M. R, where a person interested In part of the mortgage wa» held not to be a necessary party. ' Yates y. EanMy, 8 Atk. 287. ' lUd, 238. ' 3 Mad. 266. ' Anon, in the Duchy, 3 Eq. Ca. Ab. 694, PI. 3. ^ w •i 216 PARTIES TO A SUIT. and it has been determined, that where there has been an assign- ment, even though it was made without the previous authority of the mortgagor, or his declaration that so much is duo, the assignee is the necessary party : ' for whatsoever the assignee pays Without the inter- vention of the mortgagor, ho can claim nothing under the assignment but what is actually due between the mortgagor and the mortgagee.^ Where^a mortgagor is a party to an assignment of a mortgage by the mortgagee, then it is in fact a new mortgage betw.en the mortgagor and the assignee, and of course the original mortgagee is not a necessary party to a bill to redeem. A mortgagor, however, caimot be bound by any transaction which may take place between a mortgagee and his assignee without his privity ; if, therefore, the mortgagee, before assign- ment, has been in possession, and has received more on account of the rents and profits than the principal and interest due upon the mortgage, and a bill is filed by the mortgagor against the assignee to have ar. account of the overplus, he may make the mortgagee a party to the bill, because he is clearly accountable for the surplus rents and profits received by himself. But it seems to be doubtful whether, upon the principles laid down by Lord Eldon, '' the assignee would not be sufficient : on the ground that, having contracted to stand in the place of the original mortgagee, he has rendered himself liable to have the account taken from beginning to end, and must be answerable for the result, From the same case it appears, that although there may have been twenty mesne assignments, the person to whom the last has been made is the only necessary party to a redemption suit.* Where a mortgagee institutes proceedings to foreclose against the mortgagor, and the estate of a deceased mesne incumbrancer, the real representatives of such deceased incrumbrancer are not necessary parties.' It is not proper to make a person entitled to a part of the equity of redemption in a mortgage estate a party in the Master's office, but he should bo made defendant by bill.^ Where, however, there are several derivative mortgages, if the last mortgagee seeks to foreclose the mortgagor, he must make all the intermediate mortgagees parties, because they are all interested in the account.' The rules regulating the practice of the Court as to cestui que tmts > Chambers v. Goldwin, 9 Vcs. 269. 3 Ibid. 964. » Chambers v. Goldwin, 9 Ves. 268, 269. * Ibid. 268. » Taylor v. 8tead 1 Cham. R. 74. • Whan V. Lucas lCbAm.Jt.tiS. "> Hobart t. Abbot, 2 P. Wme. 643 ; ante. PERBONS RESISTING PLAINTIFF S DEMANDS. 211 being parties to suits relating to trust property, apply to rosultinir, as well as other trusts. Upon this principle it has been held, that in e«8cs of charities, where u private founder has appointed no visitor, his licir at law is consideretl a necessary party to an information for the regulation of the charity ; hecause, in such case, the heir at law of a private founder is considered as the visitor; but in a case of this des- cription, the Court refused to dismif«s the information because of his absence, an*l directed an inquiry for him to be made by the Master:' and so, in the case of a charity, Avherever it is doubtful whether the heir jH disinherited or not, he must bo a party. =•, Wherever real estate is to bo recovered, or a right is sought to bo established, or a charge raised against real estate, it is necessary that the person or persons entitled to the inheritance should be before the Court. Upon this principle it is, that in a bill by a specialty creditor, to obtain payment of his demand out of the real estate of his debtor, the devisee or heir, as well as the executor, is a necessary party. Where, however, the arrears of an annuity, charged upon real estate, are sought to bo recovoi-ed, if the arrears are such only as were duo in the lifetime of the ancestor, it will be sufficient to make his personal representative a party ; but for any arrears after his death, the devisee or heir must bo a party. ^ Where a vendee before obtaining a convej'^ance, assigned to A. half of tlio land purchased, and to B. the other half; and the vendor afterwards execute I a conveyance to each, by which it was intended to convey to A. and JB. their respective portions of the land ; but by a mistake in the respective descriptions, the conveyance to A. comprised B.'s land, and did not comprise A.'s own, nor did the conveyance to B. comprise A.^s land, but each took and kept possession of the land actually intended for him. Held, (^Spragge V.C. dissenting) that to a bill afterwards filed by B. against A. for a conveyance of B.'s- land to him, the heir of the original vendor in w^iom the legal estate in .4. '5 land was still vested, was a naccssary party.* To a suit for a foreclosure of a mortgage, in which the wife of the mortgagor has joined to bar her dower, the wife is not a necessary party, and if made a defendent, the bill as against her will be dismissed with costs. ^ Where a suit to enforce by sale, a vendor's lien, is instituted against the heirs-at-law of the purchaser, the widow of the vendee is a necessary party in respect of her right of (lower.® In a suit to administer the estate of a testator, theheir-at-law ' Attorney -Oeneral v. Gaunt, 8 SM'unst. 148, n. " Attorney- Oeneral v. Green, 2 Bro. C. C. 41)7 ; eec ante. ' Weston V. Bmves, 9 Mod. 309. * Bowsell V. Hayden, 2 Grant, B57. ' Moffatt V. Thompson, 8 Grant, 111 overruling Sanderson v. Caslon, 1 Grant 349. • Pttine V. CTiapman, 7 Grant, 119. s: >;K 218 PARTIES TO A SUIT. ought to bo a party, but whoru the pcrHonal ropivsi'iitutivo tiled buch a bJtl ngainnt tho doviHoo, nlloging that no huids had dcMccnded, m to which tlio answer was Hilont, and tho objoctiou wa.< not raised at the hearing, tho Coui-t nindo a decree in tlio absence of the heir.* A bill having been filed by tho assignoo of tho right to certain lands against tho trustee thereof, without making tho heir of the assignor a party; and the trustee set up a defence impeaching the assignment, and in- sisting that such hoir was the party entitled to the conveyance, tho Court at the hearing, ordered tho case to stand over with liberty to amend by adding tho heir as u party defondent.^ The heirs of a deceased mortgagee of an equity of redemption are not necessary parties to a suit of foreclosure by tho prior mortgagee, tho proper party being tho personal representative of such mortgagee.' Whore in a bill for partition it was stated that certain infants residing' with or near their father, out of tho jurisdiction of tho court, not parties, were interested in tho land sought to bo partitioned, their father being a party defendant, a demurrer for tho want of parties was allowed.* In a creditor's bill against two devisees of a debtor, it is not indispensable that tho heir-at-law should be a party.* Tho same rule applies to all cases where tho jurisdiction is drawn fi-om tho Courts of Common Law, in order to establish a right against a person having a limited estate in land or other hereditaments; and it is, in such cases, always held necessary to have tho owner of tho inheritance before the Court. Thus, where a bill was filed to establish a custom, whereby tho owners and occupiers of certain lands were obliged to keej) a bull and a boar for the uso of the inhabitants of the parish, it was hold, that a custom which binds tho inheritance of lands can never bo established in a Court of Equit}', unless tho owners of the inheritance are parties, and that the n.'istors and fellows of Queen's College, who were tho ovners, ought to have been there.« And so, where a man prefers a bill to establi6> a modus against a lessee of an impropriator, he must make the owner of the impropriation a party.' Upon the same i)rinciple, whore a bill was filed to establish a modus against an ecclesiastical rector or a dean and chapter, as impropriators, the ordinary and patron wore considered necessary parties." > Tifamj V. Tiffany, 9 Grant 158. * . « Miller V. Ostrander, 18 Grant .349. 3 Grimshaw v. Parks, 6 U. C. L. J. 143. * Tyron v. Peer, 13 Grant, 311. * Jenny v. Priestman, 1 Grant, 138. * Spendler v. Potter, Bamb. 181. "I CUanvil V. Trdawney, ib. 70. « Gtortfon V /SmpW/Mon, 11 Ves. 509 ; Cook v. Butt, 6 Mad. 63; Huks v. Pom/ret, Ban.l&;D( )\^elp(ialeY. Mlbum, 5 Prl. 485 : see ante. It is to bo necessary, tlu that is not tht incumbent, tl In tho case performance o in America, it or inhabitant taken was uj liuv by whicl but Lord llan this objoctiou in England, w though ditto re k'tweon tho k or may be set making the prejudice to tl And in gor under leases, ( whoso title t parties: thou^ gained from h a Court of Eqi merely, they r however, if th^ decree is expr qualified acco conclude such bo made part; mortgage, the a tenant in co years, the lof because he mi pay his costs. Tho same p inheritance si ' Wittlamson v. J suits relating ib. 562 ; Benn Sim. 49; Cm " 1 Ves. 8. 444, 44 ' Ld. Red. 175. * Cornish v. Gesl PERSONS RGSISTINO PLAINTIFF's DEMANDS. 219 It iH to bo obscrvoil, that to i*cn(ier tho owner of tho inhcritniicti ncceHaur}', tho object of tlio Huit miiHt bo to bind tho inheritnnco ; if that is not tho case, and tho relief sought \h merely agaiiiHt tho present incumbent, the owner of tho inheritance, if made a party, may demur.' Ill tho case of Pcnn v. Lonl Baltitnoir," which was a suit for a specitic performance of an agrcemeni i "specting tho lioundaries of two provinces in America, it was considered unnecessary to niaUo the planters, tenants, or inhabitants within tho districts, ])arties to the suit. The olijection tiikcn was upon tho ground that their privileges, and tho tenure and law by which they held, might not bo altered without their consent ; but Lord llardwicke overruled the objection, saying: "Consider to what this objoctioii goes : in lower instances, in tho case of manors and honors in England, which have diti'erent customs and by-laws frc(piently, yet though ditlerent, the boundaries of these manors, maybe settled in suits between the lords of those manors, without making tho tenants parties; or may bo settled by agreement, which this Court will decree, without making tho tenants parties; tliough in case of fraud, collusion, or prejudice to the tenants, they will not bo bound." And in general, it may Im) stated as a rule, that occupying tenants under leases, or other persons claiming under tho possession of a party whoso title to real jjvoperty is disputed, are not deemed necessary parties: though, if he had a legal title, th« title which they may have gained from him cannot be prejudiced by any decision on his rights in a Court of Equity in their absence ; and though, if his title was equitable merely, they may be at!ccted by a decision against that title. Sometimes, however, if the existence of such rights is suggested at the hearing, tho decree is expressly made without prejudice to those rights, or otherwise qualified according to circumstances; if, thoreforo, it is intended to conclude such rights by tho same suit, the persons claiming them must bo made parties to it ; and where the right is of a higher nature, as a mortgage, the person claiming is usually made a party.' And where a tenant in common had demised his undivided share for a long term of years, tho lessee was hold a necessary party to a bill for a partition : because ho must join in tho conveyance, and his lessor was ordered to pay his costs.* ' Tho same principle which renders it necessary that the owner of tho inheritance should bo before the Court, in all cases in which a right is ■m 5: ' Williatmon v. Lord Lonsdale, Dan. 171 ; Markham v. Smith, 11 Prl. 126 ; and sec further, as to suits relating to tithes, Day v, Drake, .3 Sim. 64, 82 ; Petch v. Dalton, 8 Prl. 9 ; Leathes v. Neioit, ib. 562 ; Bennett v. Sk^ngton, 4 Pri. 143 ; Tooth v. The Dean and. Chapter of Canterbury, 3 Sim. 49; Cuthbert v. Westwood, Gilb. £q. Sep. 230; 16 Vin. Ab, Party,B. 255,P1. 58. ' 1 Ves. 8. 444, 449. ' Ld. Red. 175. * Cwnish V. Ge9t, 3 Cox, 87. 220 PARTIES TO A SUIT. to bo established against the inheritance, requires that, in cases where there is a dispute as to whether land in the occupation of a defendant k freehold or copyhold, the lord of the manor should bo a party. Thus, where a plain tilf, by his bill, pretended a title to certain lands as freehold, which lands the defendant claimed to hold by copy of court roll to him and his heirs, and prayed in aid the lord of the manor, but nevertheless the plaintiff served the defendant with process to rejoin, without making the lord of the manor a party ; it Avas ordered, that the plaintiff should proceed no more against the defendant before he should have called the lord in process.' For a similar reason it is held, that where a bill is brought for the surrender of a copyhold for lives, the lord must be made a party; because, when the surrender is made, the estate is in the lord, and he is under no obligation to re-grant it; but it is otherwise in the case of copyholders of inheritance : there the lord need not be a party. It may be observed in this place, that the same rule which has been before laid down, ^ with regard to the persons to be made parties as being interested in the inheritance of an estate, prevails equally in the case of adverse interests, as in that of concurrent interests with the plaintiffs. This rule is, that wherever the inheritance to real estate is the subject- matter of the suit, the first person in being who is entitled to an estate of inheritance in the jiroptn'ty, and all others having intermediate interests, must bo defendants. Thus it is held necessary, in order to obtain a complete decree of foreclosure, in cases where the equity of redemption is the subject of an entail, that the first tenant in tail of the equity of redemption should be before the Court.' It appears to have been held formerly, that a decree of foreclosure against a tenant for life would bar a remainderman ; * but it is now settled, that iiot only the tenant for life, but the person having the next vested estate of inheritance, must bo parties ;* and the same rule applies to alj cases where a right is to be established, or a charge raised against real estates which are the subject of settlement. A plaintiff, however, has no right to bring persons in the situation of rempindermen before the Court in order to bind their rights, upon ' discussion whether a prior remainderman, under whom he claims, hatla title or not, merely to clear his own title as between him and a purchaser. This was decided in Pelhamv. Gregory,'^ hefovo Lord Northington ; in ' Cited in Lucas v. Arnold, Cary. Eep. 81 ; 16 Vln. Ab. Party, B. 253, Pi. 46. » Ante. " Reynoldson v. Perkim, Amb. 564 ; and see Pendleton v. Booth, 1 Qlff. 85 ; 6 Jur. N. 8. 610. * Roscarrick v. Barton. 1 Ch. Ca. 217; bat it may be doubteci wlietlier, la this case, It was Intended to lay down such rule. » Stittm, V. Stone, 2 Atk. 101 * 1 Eden 618. PERSONS RESISTING PLAINTIFF S DEMANDS. 221 whicli case, the question arose on the title, to certain leasehold estates, which were limited in 'cmainder, after limitations to the Duke of Newcastle and his sons, to the first and other sons of Henry Pelham in tail, and to which the plaintiff. Lady Catherine Pelham, claimed to be absolutely entitled onthedeathof theduke,'as administratrix of Thomas Polham the son of Henry Pelham, the first tenant in tail who had come into being. Tne plaintiff, in order to have this question decided against Loi'd Vane and Lord Darlington, who were subsequent remaindermen in tail, contracted to sell the estate, subject to the Duke's life estate, and to the contingency of his having sons, to the defendant Gregory, and brought a bill against him for a specific performance, to which she made Lord Vane and Lord Darlington parties ; but Lord Northington dismissed the bill with respect to Lord Vane and Lord Darlington, on the ground "that they being remaindermen after the death of the Duke of Newcastle, if he should die without issue, their claims were not within his cognizance to determine, and the plaintiff had no right to bring them into discus- sion in a Court of Equity." From this decree there was an ai)peal to the House of Lords, and although the House decreed Gregory to perform his contract, they affirmed the dismissal against Lord Vane and Lord Darlington.' In DevonsJier v. Newenham,^ Lord Redesdale, after stating the above case and decision, says, " I take this to be a decisive authority : and, if the books were searched, I have no doubt many other cases might be found were bills have been dismissed on this ground." The owner of the first estate of inheritance, however, is sufficient to support the estate, not only of himself, but of everybody in remainder behind him;^ therefore, where a tenant in tail, is before the Court, all subsequent remaindermen are considered unnecessary parties. This is b_) analogy to the rule at Law, according to which there is no doubt, that a recovery in which a remainderman in tail was vouched, would bar all remainders behind.* But although, where there is a clear tenancy in tail, there is no occasion for a subsequent remainderman being a party to a bill of foreclosure, yet, where it is doubtful whether a particular person has an estate tail or not, the person who has the first undoubted vested estate of inheritance ought to bo a party ; » and so, where the first tenant in tail was a lunatic, the remainderman was hold to be a proper party.' "SBro.P. C.Kd. Toml. 204. '■SSch. &Lof. 310. • Senoldmnv, Perkins, Amb. B64; but this nilo does not apply to a Scotch entail: Fordyce v. Bridges, i Phil. 497, 506: 2 C. P. Coop. t. Cott. 320, 334 ; and m to the effect of a decree against an infant teoant in tall, see S. 0. in ihe Court below, 10 Beav. 101 : 10 Jur. 1030. • Per Lord Bldon In Lloyd v. Johnea, 9 Ves. 64 ; see aUo Qiffard v. Hort, 1 Sob. & Lef. 880. • Powell, Mort. 976 a. • SingUtmy. Hopkins, 1 Jur. N. S. 1199, V.C.S. ^ 222 PARTIES TO A SUIT. It is necessary, however, in cases of this sort, not only that he who has the first estate of inheritance should be before the Court, but that the intermediate remaindermen for life should be parties.' The same rule will, as wo have seen before,^ apply, where the intermediate estate is contingent or executory, provided the person to take is ascer- tained ; although, where the person to take is not ascertained, it is suflficient to have before the Court the trustees to support the contingent remainders, and the person in esse entitled to the first vested estate of inheritance. 3 Executory devises to persons not in being may, in like manner, be bound by a decree against a vested estate of inheritance ; but a person claiming under limitations by way of executory devise, not subject to any preceding vested estate of inheritance by which it may be defeated, must be a party to a bill affecting his right ;" and in general, where a person is seised in fee of an estate, and his seisin is liable to be defeated by a shifting use, conditional limitation, or exe- cutory devise, the inheritance is not represented in Equity merely by the person who has the fee liable to be defeated, but the persons claim- ing in contingency, upon the defeat of the estate in fee, are necessary parties, s . w If, after a cause has proceeded a certain length, an intermediate remainderman comes into being, he must be brought before the Court by a supplementary proceeding;' and so, if the first tenant in tail, who is made a party to a suit, dies without issue before the termination of the suit, accoi'ding to the constant practice of the Court, the suit is proceeded with against the next tenant in tail, as if he had bocii originally a. party ; and this is now done by means of a supplemental order.' It seems also clear, that if a tenant in tail is plaintiff in a suit, and dies without issue, the next remainderman in tail, although he claim by new limitation, and not through the first plaintiff as his issue, is entitled to continue the suit of the former tenant in tail, and to iuive the benefit of the evidence and proceedings in the former suit; but in this case, it would seem that a supplemental bill is necessary, » The general rule requiring all persons interested in resisting the plaintiff's demands to be brought before the Court as defendants, in > Per Lord Eldon, in Oore v. Stacpoole, 1 Dow, 18, 31. " Ante. » Lord Cholmmddey v. Lord Clinton, 2, J. & W. 7, 133 ; ITopUns v. nopkins, 1 Atk. 590. * Ld. Red. 174. » Ucodess V. mUiatns, 2 T. & C. C. 0. 698, 698 : 7 Jur. 1123. • Ld. K?d, 174 ; Uoyd v. Jofines, 9 Ves. 69 ; Fuilerton v. Martin, 1 Drew. 238 ; Fickford v. Brown, 1 K. A J. 043 ; Jelb v. TugwM, 20 Beav, 461. » CregaioeU t. BaUman, 6 W. R. 280, V. 0. K. « Dtndy v. Dendy, 5 W. R. 221, V. 0. W. : WiUiams v. WiUiams, 9 W. R. 296, V. 0. K. ; Ward v. ShdkMhitft, 1 Jur. N. 8. 1227 : 10 W. R. 0, V. C. K. ; see however, Lowe v. Watwn. 1 8m. & 0. 148 : Jackton v. Ward, 1 Giff. 30 : 5 Jur. N. 8. 782. ««■ ^mi'' *v PARTIES RESISTING PLAIiNTIPP 8 DEMANDS. 223 order to give them an opportunity of litigating the claim set up, for- merly rendered it imj)erative, wherever more than one person was liable to contribute to the satisfaction of the plaintiff's claim that they should all be made parties to the suit.' This application, however, of the general rule has been materially modified by the General Order," which provides that, in all cases in which the plaintiff has a joint and several demand against several persons, cither as principals or sureties, it shall not be necessary to bring before the Court, as parties to a suit concern- ing such demand, all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. It will, however, be necessary shortly to state what was the practice previous to this Order, inasmuch as it will still apply to all cases not brought precisely within its terms. In the case of Madox v. Jackson,^ Loi-d Hardwicke said, ** The general rule of the Court is : where a debt is joint and several, the plaintiff' must bring each of the debtors before the Court, because they are entitled to the assistance of each other in taking the account ; another reason is that the debtors are entitled to a contribution, where one pays more than his share of the debt; a further reason is, if there arc different funds, as where the debt is a specialty, and he might at Law sue either the heir or executor for satisfaction, he must make both parties, as ho may come in the last place upon the real assets ; but there are exceptions to this, and the excei)tion to the first rule is, that if some of the obligators are only sureties, there is no pre- tence for the principal in the bond to say, that the creditor ought to bring the surety before the Court, unless he has paid the debt." It may here be observed, that by the terms of the Order, no distinction is made be- tween principals and sureties ; so that it would appear as if the plaintiff might file his bill against one or more of the sureties, without making the principal a jDarty to the suit. In Allanv. Ifoiilden,* however, v;here one of two sureties who had joined the principal debtor in a bond, filed a bill to set aside the transaction on the ground of fraud, and prayed an account of the payments made in respect of the bond. Lord Lang- dale, M. E., held, that notwithstanding the Order, the principal debtor and co-surety were necessary parties. And so, in Pinkus v. Peters,^ where the plaintiff alleged that ho had accepted bills of exchange with- out consideration, and that he had been sued upon them, and by his bill prayed relief against the drawer and the holder, without making a ' Jackgon v. Rawlins, 2 Vera. 105, ' Ord. VII. 8. Same as our Order 62 ' 3 Atk. 406; Bland v. Winter, 1 S. & 8. 246 ; Coliins v. Griffllh, 2 P. Wms. 318. ' 6Beav. 148 ; see also Lkryd v. Smith, l.S Sim. 467 ; 7 Jtir. 460 ; Pier son v. Barclay, 2 Dc O. & S. 746. Bat it BoemB tliat one of the makers of a Joint and several promissory note may be sued without Uie others, Mclntyre v. (Mnell, 1 Sim, N. S. S25, 241. '5Beav.853,260:0Jnr. 431. 224 PARTIES TO A SUIT. person to whom the drawer had endorsed the bill a party, Lord Lang- dale held, that as there was an allegation that the holder of the bills was a trustee as well for the drawer as also for the indorsee, such inter- vening indorsee was a necessary party to the suit. Before this Order it was hold, that all trustees implicated in a breach of trust were necessary parties to a suit comj)laining of the breach of trust ; • but since the Order it has been held, that where a breach of trust had been committed by several trustees, the cestui que trusts maj- proceed against one trustee, in the absence of the others.^ But it must not be supposed that, in §very case in which a breach of trust has been committed, the cestui que ttntsts can arbitrarily select any one trustee, and charge him as for a breach of trust, whatever the nature of the complaint may be. " Take, for example," said Sir James Wigrani, V. C, in the case oi Shipton v. HawUns,^ '' the casg of one of two trustees acting alone, and receiving the whole trust monies, and investing them in his own name : that might be a breach of trust per se ; for the cestui que trusts had a right to require each trustee to have a hold Aipon the trust fund; and, if a loss resulted, the non-acting tj'ustee might be liable for it. But if the fund were safe, though irregularly standing in the name of the trustee only, I cannot think this Order would entitle the plaintiff to sue the trustee who had not acted, separately from the other, The case of Walker v. iSymonds,* as explained in Munch v. Cockerell,^ shows, that all trustees are ^nma/aci'e, necessary parties to a suit com- plaining of a breach of trust, although execution might bo taken out against one only." There is no clear princij)le laid down in the cases, determining when all the trustees are necessary parties, and when one may be proceeded against without the others. The Court appears rather to have exercised a discretion, and to have allowed the Order to apply or not as, under the circumstances, the justice of the case re- quired." It is to be observed; however, that the order does not apply to cases where the general administration of the estate is sought;' nor where accounts of the trust fund have to be taken : » and it has been held, that > Walker v. Symonds, 8 S wanst. 75 : C. P. Coop. 609— «12, 674 ; JUunch v. CockereU, 8 Sim. S19, 231 ; C. P. Coop. 78, n. («r) ; Perry v. Knott, 4 Beav. 179, 181. « Peny v. Knott, 6 Beav. 293 ; KeUaway v. John/ton, ib., 319 : 6 Jur. 761 ; Attorney- General v. Cor- poration of Leicester, 7 Beav. 176 ; Strong v. Strong, 18 Boav. 408 ; Attorney- General v. Fearm, 2 Coll. 681 : 10 Jnr. 661 ; Mrria v. Wright, 14 Beav. 810 * 4 Hare, 638. * UMsup. '^ Ibid. * For caees in which all the traetoes were required to be parties, gee Shipton v. Bawling. 4 Hare, 619 ; Fowler v. Reynai, 3 De Q. & S. 740 : 13 Jur. 660, n. ; and see Keporter's note, S4 Beav. 99; Lewin v. AU^, 8 W. B. 608, V. C. W. * HaU V. Amtin, 2 Coll. 570; 10 Ju» 462; Bigaa v. Penn, 4 Hare. 469; ' «^:. 368; Chancellor^- Moreeraft, 11 Beav. 362 ; Penny v. Penny, 9 Hare, 39 ; 16 Jar. 446. 8 Devaynet v. Robintm, 34 Beav. 86; 8 Jur. N. B. 707: Coppard v. AUen, 10 Jur. N. S. 023 ; 12 W B. 948, L.JJ. ; and eee Fletcher v. Gibbon, S8 Beav. 213. where one tri of a breach of 1 they aro necc! suit, ffJr the re deceased parti also to be obs( jointly liable J and take a dec The order d( and several : a practice contii ThiLs, if thei persons const any of them must bo like' the captain ( survivor of ti an account anc defective, beca be interested i the demand W( been different. Although, e a suit against person had ex( estate, as a c party to a suit result of the d( mortgage by a a collateral sec offorcclosui-e making the otl redeem, and b( falling upon hi amount than t ' Jftw V. Bennett Soberls v. Tut ' mUs v. Af'Rae, \ • Fiwgell V. EliPin, Beav. 26 .. * Cox V. Stephens, ' Piergon v. Robin ' 3 Swanst. 160 n. Beav. 310. PERSONS RESIJ^TINO PLAINTIFF 8 DEMANDS. 225 where one tnistoo files a bill against a co-tru8tce who has been guilty of abroach of trust, in which some of the cestui que trustshixyc concurred, they are necessary parties notwithstanding the order.' So also, in a suit for the recovery of a partnership debt, against the executors of a deceased partner, the surviving partner is a necessary party.^ And it is also to bo observed, that where tho plaintifl* has mtule several persons jointly liable parties, ho cannot afterwai'ds Avaivo the relief against some, and take a decree at tho hearing against others.^ Tho order docs not apply to any case where the demand in not joint and several : and therefore, where there is only a joint demand, the old practice continues, and all tho persons liable must be nuulo parties. Thus, if there bo a demand against a partnership firm, all tho persons constituting that firm must bo before the Court; and if any of them are dead, tho representatives of tho deceased partners must bo likewise miido parties." And whore a bill was filed by the captain of a ship, against the personal representative of the survivor of two partners, who wore joint owners of tho ship, for an account and satisfaction of his demand, it was held that the suit was (icfectivo, because the representatives of tho other partner, who might be interested in tho account, were not boforq the Court: although, as the demand would have survived at Law, tho case there might have been different.* Although, even before tho Order, it was not generally necessary, in a suit against the princijial, to make the surety a party, yet, where a person had executed a conveyance, or created a charge upon his own estate, as a collateral security for anoflier, he became a necessary party to a suit against tho principal. This appears to have been the result of tho determination in Stokes v. Ctendon,^ which was the case of a mortgage by a principal of ono estate and by tho surety of another, as a collateral security; and Lord Alvanley, M. R., determined, that a bill of foreclosure against tho princiiml could not be sustained, without making the other mortgagor a party : because tho other had a right to redeem, and bo present at tho account to prevent the burthen ultimately falling upon his own estate, or at least falling upon it to a larger amount than tho other estate might bo deficient to satisfy. ' Je^K V. Bennett, Do G. M'N. & G. O'J'J; 2 Jur. N. S. 1123; WiUiams v. Alien, i'J Beav. iOJ; Roberta v. TuvstaU, 4 Hare, 301. ' mUs V. M'Rae, 9 Hare, 297. ' Fmmll V. EHwin, 7 Hare, 29 : 13 Jur. 333; The London -lias Light Company v. Sjmtti^woode, 14 Beav. 20 .. * Cox V. Stephens, 9 Jnr. N. S. 1144 : 11 W. R. 929, V. C. K. ' liersm v. Robinson, 3 Swanst, 139, n. ; Schdffield v. JleaMd, 7 Sim. 667. * 3 Swanst. 160 n. ; eeo also Payne v. Crompton, 3 Y. & C. Ex. 457, 461 ; Oedye v. Matson, 26 Beav. 810. 15 ^ 1 -**- 226 PABT1E8 TO A SUIT. To a suit by a surety against the creditor for an assignment by him of a judgment recovered against the debtor, the debtor is a necessary party. ' In Stokes v. Clendon, it is to bo observed, the surety had convo}^)d his own estate by way of security to the mortgagee. Whore, however, he merely enters into a personal covenant as surety for the principal, but does not convey any estate or interest to the mortgagee, ho will not be considered as a necessary party, unless the surety has paid part of the debt: 3 and where A having a general power of appointment over an estate, in the event of his surviving his father, joined with two other persons as his sureties, in a covenant to pay an annuity to the plaintiff, and also covenanted that he would create a term in the i state, if ho survived hi3 fa^^' r, and upon the death of his father a bill was filed by the plain tii"' ' t!u 4.., and other parties interested in the estate, to have the arrc^Li oi. his annuity raised and paid: it was held, upon demurrer, th.'it the sureties we. . not necessary parties. ^ In a bill by one .. rely nifaipst ^mother, to make him contribute, it was held, that the executor of a third surety who was dead ought to be a party, though he died insolvent.* In that case', the principal had given a counter-bond of indemnity to the plaintiff, who had taken him in execution upon it, and ho had been discharged under an Insolvent Act ; and though he apixiars not to have been made a party, yet no objection was taken;* and it seems from this circumstance, and also from the case oi Lawson v. Wright,'^ that if the principal is clearly insolvent, and can be proved to bo so (as by his having taken advantage of an Act for the Eelief of Insplvent Debtors), he need not be a party to the suit. It will, however, be necessary, if the principal be not a party, that the fact of his insolvency should bo proved ; whereas, if ho be a party to the suit, such proof will be unnecessary. In Hole v. Harrison,' the insolvency of the principal was apparent, from the factof his having taken advantage of the Insolvent Act ; but it is presumed that the in- solvency of the co-surety was not so capable of proof, and that it was upon that ground held necessary to have his personal representative before the Court, in order to take an account of his estate. Where tiie fact of the insolvency of one of the sureties was clear, and admitted by the answers. Lord Hardwicke held, that there was no necessity to bring > Cockburn v. Gillespie, 11 Graut, 465. « Gedye v. Matmn, ubi sup. » Netoton v. Earl qf Egtmnt, 4 bim. 574, 681. * Holt V. Harrison, Rep. t. Finch, 16. « Ibid. ■ • 1 Cox, 975 ; bat see Cox v. Stephens, 9 Jur. N. 8. 1144 : 11 W. K. 929, V. C. K. 1 Rep. t. Finch, 15. PERSONS RESISTINO PLAINTIFF'S DEMANDS. 221 his rcprosentativos before Ihe Court.' It BccinB, however, that the plaintiff has his election, whether he will bring the insolvent co-obligor or his representative before the Court or not.^ And in all cases coming under the Order above referred to, the plaintiff has the ojitiontosue ail tho persons jointly and severally liable, if ho shall think fit. Indepen- dently of this Order, a plaintiff is allowed, in a case where there are Hovoral persons who are each liable to account for his own receipts, to file a bill against one or more of them for an account of their own receipts and payments, without making tho others parties to the suit. Thus, where a residuary legatee brought his bill against one of two executors, without his co-executor, who was abroad, to have an account of his own receipts and payments, the Lord Chancellor said : " The cause shall go on, and if upon tho account anything appear difficult, the Court will take care of it ; tho reason is tho samo here as in the case of joint fa(ttors, an4 tho issuing out of process in this case is purely matter of form." 3 The same rule will, it appears, bo adopted, where there are joint factors, and one of them is out of the jurisdiction. And in the case of Lady Selyard v. The Executors of Hams,* before referred to, where it did not appear that the parties were out of the jurisdiction, tho Court permitted tho representatives of one of several trustees, who were dead, to bo sued for an account of the receipts and disbursements of his testator, who alono managed the trust, without bringing tho represen- tatives of the other trustees before the Court. And now, under the Order above referred to, it is not always necessary to make all the persons committing a breach of trust parties to a suit instituted for redress of tho wrong.* The rule, that all tho parties liable to a demand should be before the Court, was a rule of convenience, to prevent further suits for a contri- bution, and not a rule of necessity ; and therefore might bo dispensed with, especially where the parties wero many, and the delays might be multiplied and continued. Thus, where there wero a great number of obligors, and many of them were dead, some leaving as^sets, and t others leaving none, the Court proceeded to a decree, though all of them were not before it.« Tho general rule, requiring the presence of all parties interested in resisting the plaintiff's demand, has also been dispensed with in a variety < Madox V. Jackson, 3 Atk. 406. ' Heifwood V. Ovetf, 6 Mad. 118 ; Hltchmm v. Stewart, 3 Drew. 871 : 1 Jnr. N. 8. 839. ' C&wslad V, Cdy, Prec. Ch. 83 : 1 Kq. Ca. Ab. 78, PI. 18 : 8 Eq. Ca, Ab. 165, PI. 3 ; but see Devatj- im T. BoUnwn, 84 Beav. 96 : 3 Jur. N. S. 707 ; and ante. * 1 Eq. Ca. Ab. 74, PI. 20 ; ante. , ^ KeUaway\.Johnton.6Beuv.SlQ: 6 Jur. 761 ; iVrry v. Knott, 6 Deav. 303; and ifee Shiptonx. Rawlins, 4 Hare, w» ; Hatty. Austin, 8 Coll 570 : 10 Jur. 45:2, cited ante. * Lady Cranbume v. Crispe, Rep. t. Finch, 106. IC 5^ 228 PARTIES TO A SUIT. of cases, whero tho parties were numorouH, and the ends of justice could bo answered by a HulHcient number being before the Court to re[)roHCMit tho rights of ail. Tliu.s, whero yl. agreed witli li. and (■. to pave tho streets of a parish, and B. and C. on beluilf of tliemselves and the rosl of tho parish, agreed to pay -4., and tlie agreement was lodged in the hands of B.. it was held that A. should have his remedy against B. and C, and that they must resort to the rest of the parish.' And so, wlari; a bill was tiled by a tradesman against the committee of a voluntary society called " Tho Ladies' Club," for money ex])ended and work done under a contract entered into by the defeudaiitu, on behalf otthemselvoH and the other subscribers, and it was objected that all the members wlm had subscribed should bo parties, tho objection was overruled, and a decree miKle for the plaintitt'.^ Tho same rule was acted upon by Sir Thomas Plumer, M. E., in a hill for the spocitic performance of an agreement for a lease, against the treasurer and directors of a Joint-Slock Company established by Actot Parliament, who had purchased tho fee of the pi-omises from the person who had entered into the agreement, although the rest (jf the proprie tors, whose concurrcnco in tho conveyance Avould be necessary, were not before tho Court. =» The Master of the Jlolls, on that occasion, cunie to the conclusion, that although the bill required an act to be done by parties who were absent, yet, as they were so numerous that they could not be brought before the Court, he would go as far as he could to bind their right, and made a decree declaring the plaintiffs entitled to a specific performance, and restraining the treasurer of the company from bringing any action to disturb the plaintilfs in their possession.' From tho case of Horsley v. Bdl,^ cited in the above case of the Ladies' Club, it appears that in cases of this description tho acting mem- bers of tho committee are all liable, though some of them may not have been present at all the meetings which have taken place respecting the contract. In that case, the defendants were all the acting com- missioners, under a Navigation Act, and the plaintiff had been em- ployed on their behalf, and it appeared that tho orders had been given at different meetings by such of tho defendants as were present at these' meetings ; but none of tho defendants were present at all tho meeting:^, ' Meriel v. Wumondsold, Hardres, 205 ; see also Anon. 2 Eq. Ca. Ab, VHi, PI. 7. » Cullea V. Duke of Qtieeiisberry, 1 Bro. C. C. 101 : 1 Bro. P. C. ed. Toml. 89«. » Mtntx V. Maltby, 2 Swanst. 277 ; Parsons v. Spooner, 5 Ilnre, 102 : 10 Jur. 42a ; and see Douglas *'. Horsifall, 2 S. * S. 1»4. The followinc cases Illustrate the mode of pleading, inactions by and against Joint-Stock Companies, and will he useful in franiinj,' suits in Equity : Steward v. •Duniu li M. & W. 655 : Davidson v. Uoojier and Brassington, 11 M. & yv. 778 ; Smith v. Goldsworthy, 4 (i. B. 430. * 2 Swanst. 286 ; and see ibid. 287, and the cases there cited. * See Amb. 770, 772 : and 1 Bro. C. C. 101, n., where the case Is more fully reported ; and ste At- torney General v. Brown, 1 Swanst. 265 ; Apperly v. Page, 1 Phil. 779, 785 : 11 Jur. 271. PERSONS RESISTING PLAINTIFP's DEMANDS. 22d or joined in all the ordeiv^ : though every one of them was present at some of the meetings, and joined in making some of the orders; and one of the quoHtions in the cause was, whether all the acting com- iiiissionorH were liable on account of all the orders ; or only as to those which they had respectively signed, Ujion this point,the Court was of opinion, that all the acting commissioners were liable in toto ; every one who comes in afterwards apjn-oves the former acts; and if any one of the commissioners who hml acted before disapproved the subsequent acts, he might have gone to a future meeting and ])rotested against thcni. In the preceding cai?cs the decision was made upon the ground that, if the plaintiff succeeded in his demands against the individuals sued, they would not be injured, as they had a reined}' over against the others for a contribution, which, under their own regulations, they might enforce : although the enforcement of it on the part of the plain- tiffs, against so numerous a bodj^, would be nearly impossible. There are, however, other cases in which suits are permitted to proceed against a few of many individuals of a certain class, without bringing the rest before the Court, although their interests may in some degree be affected by the decision : as in the case of bills of peace, brought to establish a general, legal right against a great many distinct individuals. Thus, for instance, the Corporation of London has been allowed to ex- hibit a bill for the purpose of establishing their right to a duty, and to bring only a few persons before the Court, who dealt in those things on which the duty was claimed.' And so, bills are frequently entertained by lords of manors against some of the tenants, on a question of com- mon affecting them all ; and a parson may maintain a bill for tithes against a few of tl^ occu])iers within the parish, although they set up a modus to which the whole are jointly liable. ^ The principle upon which the (-ourts have acted in these cases, has been very clearly laid down by Lord Eldon in Adair v. The New River Company.'^ In that case, a bill was filed by a person entitled, under the Crown, to a rent reserved out of a moiety of the profits of the New River Company, to which moiety the Crown was entitled under the original charter of that company, but had subsequently granted it to Sir Hugh Middleton, the original projector, reserving the rent in question. By a variety of meme assignments, the King's moiety of the profits had become vested in a hundred persons, or upwards ; and the bill was filed against the company and eight of those persons for an account, and it charged, that there was not any tangible or corjjoreal property upon ' Cihj of London v. Perkins, 3 Bro. P. C. cd. Toml. 602. ' Hardeastle v. Smithson, 3 Atk. 245. Ml Ves. 489, 443. ~ ' * r, 230 PARTIES TO A SUIT. ;i which tho pUiintitr could cliHtrain,antl that the particH wore so nnmoroiis, unci thus liable to so many fluctuations, that it was impossible, if tho plaintitr could discover thom, to bring them all before tho Court, uiid that these impediments wore not occasioned by the plaintifl' or thoHc under whom he claimed, but by tho defendants. To this bill an ob- jection was taken for want of parties, because all tho persons interested in the Kinj^'s share were not before tho Court; but Lord Eldon said, that there was no doubt that it is generally tho rule, that wherever u rent-charge is granted, all persons who have to litigate any title with reganl to that rent-charge, or with each other, us being liable to piiy tho whole or to contribute amongst themselves, must be brought before the Court;' but that it was a very ditt'orent consideration whether it was possible to hold, that the rule should bo applied to an extent de- stroying the very purpose for which it was established, viz., that it should prevail whore it is actually impracticable to bring all tho parties, or where it is attended with inconvenience almost amounting to that, as well as where all can be brought without inconvenience. It must depend upon tho circumstances of each case." His Loi*dship also said, thut there were authorities to show that, where it was impracticable, the rule should not bo pressed ; and in such a case as the one before him, the King's share being splitintosuchanuraberthatit was impracticable to go on with a record attempting to bring all parties having interest in the subject to be charged, he should hesitate to detonnine, that a person having a demand upon the whole, or every part of the moiety, did not do enough if he brought all whom he could bring.' His Lord- skip then goes on to say : " There is one class of cases very important upon this subject, viz., where a pei-son having at Law a general right to demand service from the individuals of a large district, to his mill for instance, may sue thus in Equity : his demand is upon every individual not to grind corn for their own subsistence, except at his mill : to bring actions against every individual for subtracting that service, is i-egardcd as perfectly impracticable; therefore, a bill ia filed to establish that right, and it is not necessary to bring all the individuals. Why ? Not that it is inexpedient, but that it is impracticable to bring them all. Tho Court, therefore, has required so many that it can be justly said they will fairly and honestly try the legal right between themselves, all other persons interested, and the plaintiff ; and when the legal right is so established at Law, the remedy in Equity is very simple : merely a bill, stating that the right has been established in such a proceeding; » See 1 Kq. Ca. Ab. 72, PI. 1. * Bee obBcrvationB of Lord Lanirdalo, In Pomell t. Wright, 7 Beav. 444, 449. » 11 Veo. 444. PERSONS RESISTINO PLATNTIFf's DEMANDS. ^31 and upon that /ground, a Court of "Kquity will ^'ive tho plaintiff relief ft^iiinsttho dofundants in tho Hoconil suit, onl}' ropresontcd by those in the first. I fool a strong inclination that a decreu of the same nature muy lie made in this caMC."' In the aljove case of Adair v. The New River Company, Lord KIdon laid it down as a rule, that wherever a rent-eharg lUd. ; and see Bi«co« v. The Undertakers of the Land Bank, cited in Cuthbert v. Weetwood, IG VlD. Ab. tit. Party, B. SS6, PI. 68 ; see also Ante. MlVeB.444. ' Attomey-Oeneral v. Jackson, ib. dCn. * 1 Sallt. 168. * 1 P. WniB. 609; and boo Attorney- General v. Jackson, vM sup.; AtfomeyGenerat V. Nayior, 1 M 4 ■i , ^ 232 PARTIES TO A SUIT. deod, and ullegiiig tlitit tliey wcro living and neccfssary parties to the suit, was allowed.' With refoi'cnco to this decision it may bo ohscrved, that it is tlic general and almost universal practice of the Court, in suits for esta- blishing charges upon estates, to make all persons entitled to incum- brances subsequent to the plaintiff's charge, parties to the suit. Tb'" in the case of a bill to foreclose a mortgage, all ])erson8 who have cumbrances upon the estate posterior in point of time to the plaintiff's mortgage, must bo ma<.lo defendants : lor although, if there are many incumbrancers, some of whom are not made partjes to a bill of fore- closure, the plaintiff may, notwithstanding, i'oreclose such of the de- fendants as he has brought before the CWrt.^" yet, such decree will not bind the other incumbrancers who are not parties, even though the mortgagee at the time of foreclosure had no notice of the existence of such incumbrancers. =* This rule may at first appear to be inconsistent with the usual principles of a Court of J*l(piity, but the justice of it is very clearly shoAvn in the report of Lord Chancellor Nottingham's judgment in Cockcsx. S/icnnan.* His Lordship there says: " Although here be a great mischief on one hand that a mortgagee, aftera dec against the mortgagor to foreclose him of his equity of redemption, i never know when to bo at rest, for if there bo anj' other incumbrances, he is still liable to an account, yet the inconvenience is far greater on the other side : for if a mortgagee that is a stranger to this decree shoald bo concluded, he would bo absolutely without remedy, and lose his whole money, when, perhaps, a decree may be huddled up purposely to cheat him, and in the meantime (he being paid his interest,) may be lulled asleep and think nothing of it; whereas, on the other hand, there is no prejudice but being liable to the trouble of an account, and if 80 be that were stated bona fide between the mortgagor and mortgagee in the suit wherein the decree was obtained, that shall be no more ravelled into, but for so long shall stand untouched." ^ Upon the same ground it was that Lord Alvanley, M. R., in the Bislwp of Wincliester v. Beavor,^ ordered a bill of foreclosure to stand ' Newton v. Earl qf Egmont, 5 Sim. 130, 1.S7 ; and sec ITarrigon. v. f^teivardfion^ 2 Hare, 530 ; lid- land V. Baker, 3 Ilarc, 08 : (i Jur. 1011 ; Thomas v. Dunning , 6 Do O. & B. 018 ; ante. » Draper v. Lord Clarendon, 2 Vern. 618 ; Atidsley v. Horn, 26 Beav. 105 : 4 Jnr. N. S. 19C7, 1268. » Godfrey v. Chadtcell, 2 Vern. COl : 1 Eq. Ca. Ab. 318, PI. 7 ; itorret \. Westerne, 2 Vcni. (iC3: 1 Kq. Ca. Ab. 104, PI. 7. * Freem. 14. But in Uiie Province, tlic encumbrancers are made parties in tlio Master's Office.— See chapter on Mortgages. * WJiat is here eaid by the Lord Chancellor on the Bnbject of the account, as well as the case of Needier v. Deeble. 1 C'ha. Ca. 2!Mt, appears to be at variance with the decision in JUorret v. West- erne, supra. It seems to be in consequence of the rule above laid down, that in aToreclosure suit an interrogatory is cu8toman^ iiiquirhie?ufen5,^ the}' will be bound by the decree, and need not be made parties to the suit, whether the plaintiff h;i.ve notice of them or not : for an alienation pending a suit is void, ,: rather voidafele.s If, therefore, after a bill filed by the firet mortgagee to foreclose, the mortgagor confesses a judgment, ex- ecutes a second mortgage, or assigns the equity of redemption, the plaintiff need not make the incumbrancer, mortgagee, or assignee parties, for they will be bound by the suit ; and where a purchaser took an exception to a title because two mortgagees, who became such after the bill was filed, were no parties to the foreclosure, the exception was overruled with costs;' and it has been held, that where one of several plaintiffs assigns his equitable interest ^enrew V. O'Hara, 2 Bo. & Bo. 602, n. ; Cholmley v. Countess of Oxford, 1 Atk. 2C7. ' Shepherd v. Owinnet, 3 Swanst. 151, n. ^ ITe)Uey v. Stone, 3 Beav. 355 ; Chappel v. JRees, 1 Do G. M. & G. 393 : 10 Jur. 415. * Fmcell V. Wright, 7 Beav. 444 ; Ihimhle v. Share, 3 Ilare, 119 ; see, however, DTnv v. Earl of JSwImry, 3 Jo. & Lat. 267 ; Sugd. V. & P. 758. '2Vlc. ell, g. 7.1mp. 8ta. ' Walker v. Smalwood, Amb. 070 ; Oaskell v. I),',riHn, 2 Ba. & Be. 107 ; Moore v. APNamara, 1 Ba. & Be. .109 ; Oarth v. Ward. 2 Atk. 174 ; Metcalfe v. Pulvertoft, 2 V. & B. !.>07 ; and see Massy v. BatweU, 4 Dr. & War. 08; Lmg v. Bowring, 10 Jur. N. S. 008 : 12 W. K. 972, M. 11. ' Bishop cf Winchester v. Paine, 11 Ves. 197. • Fades v. Harris, 1 T. & C. C. C. 230. " Johnson V. Tlnomas, 11 Beav. 801. '° Mommy. Solomon, 18 Sim 516 : 7 Jnr. 800. " T)rUy V. Kelly, 4 Dow, 486 ; Bishop tf Winchester v. Paine, vbi sup, ; and as to the effect of a lis pendens g^ncraHy, see Bellamy v. Sabine, 1 Do G. & J. 666 : 8 Jur. N. S. 943 ; l)/ler v. Thomas 25 Beav. 47 ; Sugd. V. & P. 759. r 236 PARTIES TO A SUI*. If a person, pendente lite, takes an assignment of the interest of one of the parties to the suit, he may if he pleases, make himself a party to the suit by supplemental proceedings, but he cannot, by petition, pray to be admitted to take a part as a party defendant : all that the Court will do is to make an order, that the assignor shall not take the pro- perty out of Court without notice.* We come now to the consideration of those cases in which it is ne- cessary to make persons defendants to a suit, not because their rights may be directly affected by the decree, if obtained, but because, in the event of the plaintiff succeeding in his object against the principal de- fendant, that defendant Avill thereby acquire a right to call upon them either to reimburse him the whole or part of the plaintiffs demand, or to do some act towards reinstating the defendant in the situation he would liave been in but for the success of the plaintiff's claim. In such cases the Court, in order to avoid a multiplicity of suits, requires that the parties so consequentially liable to be affected by the decree, shall be before the Court in the first instance, in order that their liabilities may be adjudicated upon and settled by one proceed i)ig. Thus, where a defendant in his answer insisted that he was entitled to be reimbursed bj^ A. what he might be decreed to pay to the ])lainti(f, and therefore that A. was a necessary ]>arty, the Court, at the hearing, directed the cause to stand over, with liberty to the plaintiff to amend b}^ addiiii( parties. 2 And so, where an heir at law brought a billagainst a widow, to compel her to abide by her election, and to take a legacy in lieu of dower, it was held that the personal representative was a necessary party : because, in the event of the plaintiff succeeding, she was entitled to satisfaction for her legacj^ out of the personal estate ; and the plain- tiff had leave to amend, hj making the executor a parly. » Upon the same principle it is, that in suits b}- s])ecialty creditors, tor satisfaction of their demands out of the real estate of a person deceased, it is required that the personal as well as the veal re])resentative should be bi'ought before the Court :" because the personal estate, being tla' primary fund for payment of debts, ought to go in ease of the land, ami the heir has a right to insist that it shall be exhausted for that purpose before the realty is charged; so that, if a decree were to be made in the first instiince against the heir, he would be entitled to file a bill > Foster v. Deacon, « Mnd. 59 ; see, however, Brandon v. Brandon, 3 N. R. aS7, V. C. K., where a supplemental order was] made to briug before the Court mortcngees of shares after decree; aiw Toosey v. Burchell, Jnc. 159, where, on petition, tlie Court owered that the purehascr HliouMbe at liberty to attend inquiricB In the Master's Office, and have notice of all proceeding, on paying the incidental costs. The Court will usually now, on motion, give the purchaser llbtrly to attend the proceedings at his own expense. " Oreenwooil v. Atkinson, 5 Sim. 419 ; see also Green v. Poole, 5 Bro. P. C. ed. Toml. 6W. * Lesqyire v. Lesquire, Rep. I. Fincii, 13-1 ; see al»o yvtlkinmn v. Fonvkes, 9 Uare, 193. * Madooc V. Jackson, 3 Atk. 406. PERSONS RESISTING PLAINTIFF's DEMANDS. 237 against the personal representative to reimburse liimself.' The Court, therefore, in order to avoid a multiplicity of suits, requires both the executor and heir to be before it, in order that it may, in the first in- stance, do complete justice, by decreeing the executor to pay the debt, as far as the personal assets will extend: the rest to be made good by the heir out of the real assets. = Upon this principle it wan, that where ft man covenanted for himself and his heirs that a jointure house should remain to the uses in a settlement, and the jointress brought a bill against the heir to compel him to rebuild and finish the jointure house, and to make satisfaction for the damage wliich whe had sustained for want of the use thereof, Lord Talbot allowed a demurrer, on the ground that the executor ought to be a party : because the Court v/ould not, in the first instance, decree against the heir to perform his covenant, and then put the heir upon another lull against the personal represen- tative to reimburse himself out of the personal assets. ^ A bill of'discovery of real assets might, however, be brought against the heir, in order to preserve a debt, without making the administrator a party, where it was suggested that the representation was contested in the Ecclesiastical Court;* aiid where the heirof an obligor would not himself administer, and had opposed the plaintiO", who was a principal creditor, in taking out administration, a demurrer by him, because the administrator Avas not a party, was overruled.'' Where the nature of the relief prayed is bUclithat the heir-at-law has no remedy over against the ])ersonal estate, the personal representative is an imnecessary party; thus, in the case of a bill filed by a mortgagee against the heir of a nu^rtgagor, to foreclose, tha executor of the mortgagor is an unnecessary party: because, in such a case, the mortgagee has a right to the land pledged, and is not in any way bound to inter- meddle with the per.-onal estate, or to run into an account thereof; and if the heir would have the benefit of any payment made by the mortgagor or his executor, he must prove it.^ And it makes no difference if the mortgage be by demise for a term of years, provided the mortgagor was seized in fee : in such case, the executor is an unnecessary party, and if made one, the bill against him Avill be dismissed with costs.' And where a term of 1000 years had been granted, but conditioned to iC ^ ^ -4 ' Knifjht V. Knight, 3 P. Wms. 33.1. '' Md. : and sec Galton v. Jfan'jck, 2 Atk. 431. ' Knight v. Knight, 3 P. Wms. 333; and soo nressendeiiv. Decreets, 2 Ch. Ca. 197. < Hunket v. I^iison, 2 Atk. 51. ' D'Aranda v. Whittingham, Mos. 84 ; ante. * Buncombe v. Hansley, 8 P. Wmi>. 8.3.3, n. ; Fell v. nrotvn, 2 Bro. C. C. 276, 279. ' Bradshaw v. Oulram, 18 Ve». -rAi. If the mortgage was of a chattel interest, of course the ex- ocntor, and not the hoir, would be the proper party : and if freehold and leasehold estates are both comprised in the Baroo mortgage, both the heir and executor will be necessary parties to a biU of foreclosure : Robins v. Hodgson^ Rolls, 15 Feb. 1794. ,. i. M 238 PARTIES TO A SUIT. S- sink and be extinguished upon payment of an annuity for forty-two years, and at the expiration of the time a bill was brought by the heir of the grantor, for a surrender of the residue of the term : it was hold, that the personal representative of the grantor need not be a party. » Where, however, the mortgagee mixes together his chai-acters of mortgagee and general creditor, and seelcs relief beyond that to which his position of mortgagee by itself would strictly entitle him, then it would appear that the personal representative of the mortgagor must be a party to the bill, and there must be an account of the personal estate. It may hero be observed, that the doubt which formerly existed whether, when the mortgaged estate is insufficient to satisfy the amount charged upon it, and the personalty is also inadequate to pay all the debts, the mortgagee was entitled to prove against the personalty for the whole of his debt, or only for the residue, after deducting what he has received from his socurity,^ has now been removed by the cTccision of Lord Cottenham, in the case of Mason v. Bogg,^ where it w*s deter- mined, that a mortagee may prove for the whole debt, and then realise his security, and afterwards take a dividend on the whole debt: provided, of course, that the amountof the dividend is not more than the unpaid balance. In suits of this description, the Court will decree, not a foreclosure, but a sale of the estate,* a decree to which a morti^agee is not ordinarily entitled upon a bill filed by him, without reference to his rights as a general creditor. Where the bill is filed to redeem a mortgage against the heir of a mortgagee, the personal representative must also, as the party entitled to the money, Ije made a party to the suit ; because, although the mortgagor, upon paying the principal money and interest, has a right to a reconveyance from the heir, yet the heir is not entitled to receive the money ; and, if it were paid to him, the personal representative would have a right to sue him for it. Where a man contracts for the purchase of an estate, and dies intestate as to the estate contracted for, before the completion of the contract, the vendor has a right to file a bill against his personal representative for payment of the purchase money ; but if ho does, ho must make the heir at law a party, because the heir is the person entitled to the estate, And for the same reason, where the vendee, after the cause was at issue, died, having devised the estate which was the subject of the suit to ' namjifleld v. Vaughan, Rep. t. Fiuch, 104. « Greenwood v. Taylor, 1 R. & M. 186 ; Greenwood v. ^r ' 242 PASTIEU TO A SUIT. Ji>^- might appear upon the bill that the plaintiff knows the party, and then to have observed, that perhaps there is not a general rule either way. It is submitted, however, that this observation of Lord Eldon does not at all shake the rule which has been laid down, as to the necessity of pointing out who the necessary party is, but merely refers to the obtter- vation made at the bar, that there was no rule requiring a demurrer to state the parties, by name, a& it might be out of the power of the de- fendant to do so ; and that it does not refer to the necessity of calling the plaintiff 's attention to the description or character of the party required, in order to enable him to amend his bill, without putting him to the expense of bringing his demurrer on for argument ; which he might otherwise be obliged to do, in oi-der to ascertain who the party required by the defendant is. Where a demurrer for want of parties is allowed, the cause is not considered so much out of Court but that the plaintiff may afterwards have leave to amend, by bringing the necessary parties before the Court.' And where the addition of the party would render the bill multifarious, the plaintiff will be allowed to amend generally.' And where the demurrer has been ore tenus, such leave will be granted to him without his paying the costs of the demurrer : though, if he seeks, under such circumstances, to amend more extensively than by merely adding parties, he must pay the defendant the costs of the demurrer. 3 Upon the allowance, however, of a demurrer for want of parties, the plaintiff is not entitled as of course to an order for leave to amend. When it is said that a bill is neverdismissedforwantof parties, nothing more is meant than that a plaintiff, who would bo entitled to relief if proper parties were before the Court, shall not have his bill dismissed for want of them, but shall have an opportunity afforded of bringing them before the Court ; but if, at the hearing, the Court sees that the plaintiff can have no relief under any circumstances, it is not bound to let the cause stand over that the plaintiff may add parties to such a record.* If the defect of parties is not apparent upon the face of the bill, the defect may be brought before the Court by plea, which must aver the matter necessary to show it.» A plea for want of proper parties is a plea in bar, and goes to the whole bill, as well to the discovery as to > Brestenden v. Decreets. 3 Ch. Ca. 197 ; see also Uoyd v. Loaring, 6 Ves. 773, 779. a Lumsden v. Frasevt 1 M. & C. 689, 60S; Attorney- Gener(U v. Merchant Tailors' Company, 1 M. A) K. 189, 194. * Newton v. Lord Egmont, 4 Sim. 674, 686. « Tyler v. BeU, 8 M. & 0. 89, 110; and see Lund v. Blanshard, 4 Hare, 9, 93 : 1 C. P. Coop. t. Cott, 89 ; Lister v. Meadowcrqft, ib. 872. * Ld. Bed. 880 ; Hamm v. Stevens, 1 Vem. 110. OBJECTIONS FOR WANT OF PARTIES. 243 the relief, where relief is pray«d : ' though the want of parties is no objection to a bill for discovery merely.^ Whore a sufficient reason to excuse the defect is yuggestod by the bill, lis whore the party is resident out of the jurisdiction of the Court, and the bill alleges that fact,' or where the bill seeks a discovery of the necessary parties :* a plea for want of parties will not, any more than a demurrer for the same cause, bo allowed, unless the defendant con. trovei'ts the excuse made by the bill, by pleading matter to show it false.' Upon arguing a plea of this kind, the Court, instead of allowing it, generally gives the plaintiff leave to amend the bill, upon payment of costs; a liberty which ho may also obtain after allowance of the plea, accoi-ding to the common course of the Court, for the suit is not de- termined by the allowance of a plea." The defendant may also raise the objection that the bill is defective for want of parties, by answer, or at the hearing,' in which case, the rule with respect to costs is : that if the objection for want of parties has boon taken by the defendant's answer, or if it arises upon a state- ment of the bill, then the liberty to amend is not given to the plaintiff, except upon tho terms of his paying to the defendant the costs of the day ; but if tho objection depended upon a fact within the defendant's knowledge, and he has not raised it by answer, tho order will be made without payment of costs of the day. » P. being a debtor to the plaintiff, deposited with him certain mortgages to secure such indebtedness ; tho plaintiff filed a bill against the parties entitled to the equity of redemption of one of those mortgages for pay- ment of the money due thereon, and praying in default foreclosure ; the defendants at the heai-ing objected that P. was a necessary party, but tho Court overruled the objection as it had not been taken by answer, and P. might be ordered to be made a party in tho Master's office.' Under tho present practice of the Court, objections for want of parties are of comparatively rare occurrence : in the first place, because, as we ' Plunket V. Fenson, 2 Atk. 61 ; Hamm v. Stevens, ubi sup. < Sangosav. East India Company, 2 Eq. Ca. Ab. 170, pi. 28. ' Oowslad V. Cely, Prec. Ch. 83; Darwent v. IFo/tow, 2 Atk._ 510. * Bowyer v. Covert, 1 Vera. 95. * , * Ld. Red. 281. • Ibid. ' Cox V. Stephens, 9 Jur. N. S. 1144, 11 W. R. 929, V. C. K. For cases in which the defect in parties hae been remedied by a voluntary appearance at the hearing, boo ante. ' MilefuU V. Bailey, 8 Mad. 61 ; Furze v. Sharwood, 6 M. & C. 96; Attorney-General v. lOU, 8 M. & 0. 247; Mason v. FranIMn, 1 Y. & C. C. C. 239, 242 ; Kir wan v. Daniel, 7 Hare, 317, PM. No costs are given where the defect arises fi-om an event occurring after the cause is at istne : see Fussdl v. EHwin, 7 Hare, 29 : 18 Jar. 388. For form of order, on cause standing over witb leave to amend on payment of costs of the day, see Seton, 1118. No. 1. • Jones V. B. U. C, 12 Grant, 429. ^ ■^■% s ^ & r 244 PARTIES TO A SUIT. 'M' have seen, in many cases peraons who wore formerly necessary parties are now no longer so ; and secondly, because the Court is now enabled to make a decree between the parties before it, although there are other parties not before it Avho are interested in the question to bo determined ; ' and is also enabled, by the General Oi-der," whore the defendant at the hearing of a cause objects that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified hy name or description the parties to whom the objection applies, if it thinks fit, to make a decree saving the rights of the absent parties. =» The discretion given to the Court by this Order will only be exercised in cases where the rights of the absent party can bo protected by the decree as if ho wore present; or at all events, where the rights cannot be prejudiced by a decree made in his absence. Consequently, in usiiit for the execution of a trust created for the benefit of creditors, against the trustees. Sir James WigrJim, V. C, refused to make a decree in the absence of the person who created the trust, or his personal represen- tative. < The Court will not, at the hearing, give leave to the plaintiff to amend by adding parties, if by so doing the nature of the case made b}^ the bill will be changed.* In MiUigan v. MitcheU,^ an order was made at the hearing, giving the plaintiffs leave to amend their bill by atlding parties, as they should bo advised, or by showing why they were unahle to bring the proper parties before the Court.' The proper time for taking an objection for want of parties is npn opening the pleadings, and before the merits are discussed; but it fre- quently hai)pens that, after a cause has been heard, the Court has felt itself compelled to let it stand over for the purpose of amendment by adding parties. « Aftey witnesses had been examined, and the cause heard at Sandwich, the cause was re-argued in Toronto. Held, that the defendant could not insist as a matter of right on an objection for want of parties not taken at the hearing at Sandwich." The proper practice is to bring aline- » 16 i 1« vie. c. se, 8. 51 ; and our Con. G. O. No. 57. a Ord. XXIII. 11. Our Order No. 66 is Bimilar. 3 Meddowcroft v. Campbell, 13 Beav. 184; see also Mau v. Sdby. 1 Y. & C. C. C. 235, 238 : 6 Jur.52; Faulkner v. Daniel, 3 Hare, 199, 218; Daubuz v. Peel, 1 C. P. Coop. t. Cott. 365; Mwjixryy. Brooking, 7 De G. M. & G. 673 : » Jur. N. S. 76 ; Feltham v. Clark, 1 De G. & 8. 307. Assigncfs of a bankrupt were directed to be served with a copy of a decree made iu tlieir absence, 2tor«// V. Dorsett, 8 Jur. N. 8. 146, 147. » Kimber v. Ensworth, 1 Hare, 293, 295 ; 6 Jur. 165. » Deniston v. Little, 2 Sch. & Lef. 11 n. ; and see Watts v. ZTycfe, 2 riiil. 406, 411 : 11 Jur. 979; M- amy v. Sabine, 2 FhU. 425, 427 • 1 M. & C. 611, 612. M M. & C. 611, 512. B Jonee v. Jones, 8 Atk. 111. An objection for want of parlies may be taken on tlie hearing of an appeal ; Uoldswgrth v. Holdsworth, 2 Dick. 799 ; and see Magdalen College v. Slbthorp, l Bu!>. • King v. Keating, 12 Grant, 29. OBJECTIONS FOR WANT OP PAftTIES. 246 cossary parties before the Court at the hearing, and not to add them in the Master's office.' The objection for want of parties ought to proceed from a defendant ; and it has been held that tlie plaintiff, bringing his cause to a hearing without proper parties, cannot put it off without the consent of the defendant. Cases of exception may occur, where, for instance, the plaintiff was not aware of the existence of persons whoso claims could touch the interests of those who were upon the record ; but this ought to bo clearly established, and the plaintiff ought to apply as soon as he has obtained the knowledge. ^ A plaintiff may, at the hearing, obviate an objection for want of a particular party, by waiving the relief he is entitled to against such pai'ty ;^ and whore the evident consequence of the establishment of the rights asserted by the bill, might be the j»iving to the plaintiff a claim against persons who are not parties, the plaintiff, by waiving that claim, may avoid the necessity of making those persons parties.* This, how- ever, cannot bo done to the prejudice of others.* In some cases, the defect of parties has been cured at the hearing by the undertaking of the plaint'ft' to give full effect to the utmost rights which the absent party could huv 3 claimed: those rights being such as could not effect the interest of the defendants. Thus, where a bill was filed to set aside a release \Vhich had been executed in pursuance of a family arrangement, in consequence of which a sum of stock was invosted in the names of trustees for the benefit of the plaintiff's wife and unborn children, which benefit would be lost if the release were set aside : Sir John Leach, M. R, held, that the trustees of the settlement were necessary parties, in order to assert the right of the children; but upon the plaintiff's counsel undertaking that all the monies to be re- covered by the suit should be settled upon the same trusts for the benefit of the plaintiff's wife and children, his Honor permitted the cause to proceed without the trustees, and ultimately, upon this undertaking of the plaintiff, declared that the plaintiffs were not bound by the release." The mode of adding parties is by amendment of the original bill; and the Couj't will suffer the plaintiff to amend his bill, bj^ adding parties, at any time before the hearing. An order to amend by adding parties allows of the introduction of apt W'0i*d8 to charge them ; but it seems that the plaintiff, if it is- ' Paterson v. Holland, 8 Grant, 238. ' Innes v. Jackson, 16 Ves. .356, .361 ; Campbell v. Dickens, 4 Y. & C. Kx. 17. ' PatoUt V. T/ie Bkliop qf Lincoln, 2 Atk. S96. ♦ Ld. Red. 179. ' IMd. 180. ' *«^ V. Gcoke, 4 Russ. .31, 54, 58 ; and see Walker v. Jefferies, 1 Hare, 341, 356 ; W. 296: 6 Jur, '^ C li 1.^ \\^: m' j.* 24G PARTIES to A SCIf. necessary, should apply for liborly to add allegations applicable to tlio case of the proposed new parties, as this is not included in the liberty to amend by adding parties ; ' and under an order giving liberty to add parties by amendment or supplemental bill, a plaintiff may do both.' A plaintiff is not obliged, in adding parties by amendment, to make them defendants : he may, if he pleases, apply for leave to make them co-plaintitt's, and ho has been permitted to do so by special motion, after the defendants have answered the original bill.' Section IV. — Joinder of Parties who have no Tnferest in the Suit. It hna been before stated, that no one should be made a partj' to a suit against whom, if brought to a hearing, there can be no decree ;< thus, an agent for the purchase of an estate, is not a necessary party to a bill against his employer for a specific performance, although he signed the memorandum for the purchase in his own name;* and ho, a residuary legatee need not bo made a party to a bill against an executor for a debt or legacy ; and for the same reason, to a bill brought by or against the assignees of a bankrupt in respect of the property vested in them, under the bankruptcy, the bankrupt should not be a part}' ; " and in a suit to ascertain the property in a certain share in a banking com- pany, litigated between two claimants, the company is not a necessary party.' Upon the same principle, persons who are mere witnesses, and may be examined as such, ought not to be made defendants;' and it was so held even where the object of the bill was to obtain a discovery in aid of an action at Law, in which their discovery would be more effectual than their examination." This, rule is, however, liable to exceptions; thus, in cases where under certain circumstances a discovery upon oath is desirable from in<^ \ idu members of a corporation aggregate, or from the ' of a corporation, such members or officers may be ma lendants." With respect to this exception from the general- ri it han been > Polk V. Lord Clinton, 12 Vee. 48, M, 60 ; Mason v. Franklin, 1 T. & C. C. C. 889, ^42 ; if»>on v. Jngo. 5 Hare, 156 ; Bateman v. Margerimn, 6 Hare, 502 ; and cases referred to 1 C. P. Coop. t. Oott. 35, 86, 37 : and gee form of order in Seton, 1113. No. 1. " Minn V. Slant, 15 Beav. 129 : 15 Jur, 1095. ' Sickens V. Congreee, 1 Sim. 500. * De GoUs V. Hard, 3 P. Wms. 811, n. (I.); ante. * Kingsley v. Young, Coop, Eq. PI. 42 ; see ante. * See ante. 1 Scawin V. Scawin, 1 Y. & C. C. C. 65, 68. * Hummer v. May, 1 Ves. S. 426 ; How v. Best, 5 Mad, 19; Saunders v. Saunders, 3 Drew, 387:1 Jur. N. S. 1008. * Fenton v. Hughes, 7 Ves. 288. >o Sec ante. This rule has been altered in this Province by Con. G. O. No. 63. JOINDER observed by originated w cannot have make the sec be sure of ha secretary ma principles is for the first 1 person a deft more success but this ])rac must be cons Other pers to the rule b< to a suit : vi: defendants w thought, that ally from the mii,'ht entitle hold, that an meinorandun co-defendant such agreem< In Dummer as cases of e^ arbitrators ai rule, that in the purpose ( to the bill, as nevertheless, gross niiscon^ to the suit, tl In such cases the bill wouh ' Wychv.Meal, "l\ 269. T t ground 1 the Corporal '7 Ves. 289. * Kingsley v. T » 14 Ves. 252. « ," >i\irdv. El ' (. '.•at V. Leg u. & S. 782 ' Ld. Red. 161. • 2 Ves. J. 451. JOINDER OP PARTIES WHO HAVE NO INTEREST IN THE SUIT. 247 observed by Lord Eldon, that " the principle is very singular ; it originated with Lord Talbot,' who reasoned thus upon it: that j'ou cannot have a satisfactory answer fh>m a corporation ; therefore, you make the secretary a part}', and get from him the discovery you cannot be sure of having from them ; and, it is added, that the answer of the secretary may enable you to get better information. The first of these principles is extremely questionable, if it were now to be considered for the first time ; and as to the latter, it is very singular to make a perHon a defendant in order to enable yourself to deal better, and with more success, with those whom you have a right to put upon the record ; but this i)ractice has so universally obtained without objection, that it must be considered established."' Other persons are mentioned by Lord Eldon as aftbrding exceptions to the rule before laid down, that mere witnesses cannot be made parties to a suit : viz., agents to sell, auctioneers, &c., who have been made defendants without objection ; =• his Lordship, however, appears to have thought, that the practice of making such persons parties arose origin- ally from their having some interest, such as holding deposits, which miijfht entitle the plaintiff to relief against them ; and it has been since hold, that an agent who bids at an auction for an estate, and signs the memorandum in his own name for the purchase, need not be made a co-defendant with his employer, to a bill for the specific performance of such agreement.* InDitmmery. The Corporationof Chippenham,' Lord Eldon also mentions, iis cases of exception to the general rule above referred to, those of arbitrators and attornies. With respect to arbitrators, however, it is a rule, that in general an arbitrator cannot be made a party to a bill for the purpose of impeaching an award, and that if he is, he may demur to the bill, as well to the discovery as to the relief." In some cases, nevertheless, where an award has been impeached on the ground of gross misconduct in the arbitrators, and they have been mode parties to the suit, the Court has gone so far as to order them to pay the costs.' In such oases. Lord Eedesdale considers it probable that a demurrer to the bill would not have been allowed ; • and in JOord Lonsdale v. Littledale,' ' Wych V. Meal, 3 P. Wms. 310. » ' 7 V 369. The officer so joined aa defendant cannot shelter himself from giving discovery on t ground that he cannot inspect the document, without the leave of the governing body of tlie Corporation : Attorney- General v. Mercers' Company, 9 W. R. 83, V. C. W. »7Ve8.289. ' Kingsley v. Tmng, Coop. Kq. PI. 42, ante. ' 14 Ves. 262. ' ''^' ^i-ard v. East India Company, 3 Vem. 380 ; Ld. Red. 160. ' I cot v. Lequesne, 2 Vea. 8. 315 ; Ungood v. Croucher, 3 Atk. 395 ; Hamilton v. Bankin, 3 De U. «Si S. 782 : 15 Jur. 70. ' Ld. Bed. 161. • 2 Ves. J. 451. :! ^ 248 PARTIES TO A SUIT. JOINDER iif a demurrer by ai ", itrator to a bill of this nature was in fact over- ruled : •though u>MJC.(4irj88ly upon the ground of the pvopriety of mak- ing an arbitrator a party, but because the bill charged certain specific acts which showed combination or collusion between him and one of the parties, and made him the agent for such party, and which the Court therefore thought required an a.^swer. But although arbitrators may be made parties to a bill to set aside their award, they are net bound to answer as to their moti^'^os in making the award, and they may pleadio that part of the bill in bar of such discovery ;» but it is irciumbentupon them, if they are charged with corruption and partiality, to support their plea by showing themselves incorrupt and impartial, or otherwise the Court will give a remedy against them by making them pay costs.s . From the preceding cases it may bo collected, that arbitrators can only bo made parties to u suit where it is intended to fix them with the payment of costs, in consequence of their corrupt or fraudulent behaviour, and in sucj. oases the bill ought specifically to pray that relief against them. The sp.mo rule also applies to the other case of exception before alluded to, as having been mentioned by Lord Eldon, namely, that of attornien; who can only be matle parties to a suit in cases where thej'^ have so involved themselves in fraud, that a Court of Equity, although it can give no other relief against them, will order, them to pay the costs. Thus, where a solicitor assisted his client in obtaining a fraudulent re- lease from another, he was held to be pre perly made a party, and liable to costs if his principal was not solvent. ^ The same rule applies to any other person acting in the capacity of agent in a fraudulent transaction, as well as to an attorney or solicitor;* and it was said by Sir James Wigr?^r>., V. C, in Marshall v. Sladdm,^ that "as far as his researches hatl gone, the Court had never made a decree against a mere agent except upon the ground of fraud." It is to be observed, that in such cases, if an attorney or agent is made a party, the bill must pray that he ma}' pay the cOsts, and must distinctly allege the circumstances constituting the fraud, and that the dft.3nda!it was a party concerned, and had a knowledge of the fraudulent intention;" otherwise a demurrer will lie. > Anon. 3 Atk. G44. « Lingood v. Crmcker^ S Atk. 895; Padley v. Lincoln Water yVorks Company, 2 M'N. & 0, 68: 14 Jur. 29fl; Fon^ord v. Swaine, IJ. & U. 433. 3 Bowles V. Stewart, 1 Sch. & Lcf. 227. ♦ Bulkeley v. Dunbar, 1 Aiiat. 37. *> » 7 Ilaro, 49P, 442 : 14 Jur. 100; Riynell v. Sprye, 8 Hare, 222, 271 ; Innes v. Mitchell, 4 Drew. 57: 3 Jur. N. S. 75«. « Kelly V. Rogers, 1 Jur. N. 8. 514, V. C. W. : Gilbert, v. Lewis, 1 De O. J. & 8. 89, 49, 50 ; 9 Jur. N. 8. 187 ; and see Attwood v. Smail, 01. & Fin. 352 ; 8ugd. Law. Prop. 630, 632. JOINDER OP PARTIES WHO HAVE NO INTEREST IN THE SUIT). 249 In Le Texier v. T/ie Mafgravlne of Ans2)ach,\ 7 >, of tho questions before the Court was, whether a married woman v. xa''1^c made a party to a suit on the allegation that, in certain contracts which were tho subject of litigation, she had acted as tho agent of her husband, and that she hml vouchers in«hcr possession, the discovery of which might asHist tho plaintiff in his case. Tho bi'il, which did not pray any relief against tho wife, had been demurred to; and Lord Eldon allowed the domuii-er on the ground that she was merely made a defendant for the purpose of discovery, and that no relief was praye and primafacie, it is certainly not necessary to make an attorney a party to a bill seeking a discovery and production of title-deeds, merely because ho has them in his custody ; because tho possession of tho attorney is the possession of his client; but cases may arise to render such a pro. eeeding advisable, as if ho withholds tho deeds in his possession, and will not deliver tliom to his client on his applying for them. Where a pei'son who has no iuc^rest in the subject-matter of the suit, :^nd against whom no relief is pr tyed, is made a party to a suit for the mere purpose of discovery, the proper course fot* him to adopt, if he wishes Ibid. 333. » Fenton v. HughM, 7 Ves. saS; Baker v. MeUisk, 11 Vcs. 76, 76. » Bolder v. Lord HutUingjUld, 11 Vcb. » 8, 898; Faulder v. Sluart, ib. 296; Shaw v. VMng, •> a03. « Lancaster v. Eoors, 1 Phil. 849: 8 Jur. 13}; Swinborne v. Nelson, '18 Beav.416; Great Lvxm- bmtrg RaUway Company v. Magnay, S3 Beav. 640 : 4 Jur. N. S. 839 ; Readt v. Woodrcgi, '<< Bear. 431. JOINDER OP PARTIES WHO llAVE NO INT^EREST IN THE SUIT. 251 made on payment of their costs, because by striking, them out as de- fendants the plaintiff deprives them of the opportunity of applying for tlieir costs at the hearing.* It may here be mention 3d that after a bill has been dismissed against one defendent the style of the cause as it originally waS; should be con- tinued. It is not necessary to omit the name of the defendant against whom the bill has been dismissed, and the retention of the name is not irregular. Sed qiiare, would it be irregular if the name was omitted. ^ The preceding observations, with regard to the joinder in the suit of persons who have no interest, beneficial or otherwise, in the subject- matter, refer to cases where they are made parties defendants. The rule, however, that persons who have no interest in the litigation, cannot be joined in a suit with those who have, applies equally to.prevent their being joined as co-plaintitfs ; ^ and upon the same principle, persons whose interests in the subject-matter of the suit are distinct and several, cannot sue as co-plaintiffs.* Formerly, the misjoinder of plaintiffs, if it appeared upon the bill, was a ground of demurrer to the whole bill; and if it did not appear upon the bil', it might be pleaded in bar ^ to the whole bill ; and the objection might also be taken at the hearing.* Now, however, the consequences of a misjoinder are by no means so serious as they were formerly, for by the Chancery Amendment Act of 1852, it has been prov Idcd that " no suit in the said Court shall be dismissed by reason only of the misjoinder of persons as plaintiffs therein, but wherever it shall appear to the Court that, notwithstanding tbo conflict of interest in the co-plaintiffs, or the want of interest in some of the plaintiffs, or the existence of some ground of defence affecting some or one of the plaintiffs, the plaintiffs, or some or one of them, are or is entitled to relief, the Court shall have power to grant such relief, and to modify its decree according to the speciii 1 circumstances of the case, and for that purpose to direct such amendments, if any, as may ^ bo necessary, and at the hearing, before such amendments are made, to treat any one 01 more of the plaintiffs as if he or they was or were a defendant or defendants in the suit, and the remaining orother plaintiff or plaintiffs, was or were the only plaintiff or plaintiffs on the record ; and where ' WilkLtmnv.Belsher,»BTO. 0.0.^12. " Ui^r Canada Mining Co. v. Attorney- General, 9 Cham. R. 186.; ' Mayor and Aldermen qf Colchester v. , 1 P. Wme. B95; TrovgMon y.Oelley, 1 Dick. 382; CiiSty. Platell,4 RiiRB. 243; Makepeace v. HdytAome, ib. 844; King of Spain v. Machado, if), m ; Page v. Townsend, B Sim. .395 ; Delondre v. Shaw, 3 81m. 387 ; Olyn v. Scares, 3 M. A K. 450, 408 ; Origgs v. Staplee, 3 De O. & S. 678 : 18 Jur. 89 ; Orifflth v. Vanheythuysen, 9 Hore, 86: 15 Jur. 431. < ff«d«on V. Madditon, IS Sim. 416 : B Jar. 1194 ; and Bee PoweU v. CockereU, 4 Hare, 667, 662 : 10 Jur. 348, where the objeotion was disaUowed ; and Jfifex v. />urn/'o'': 5^ i'^vi 254 THE BILL. suit, seeks to bring the proceedings and decree in the original suit before the Court, for the purpose either of obtaining the benefit of it, or of procuring the revereal of the decision which has been made in it. The bill which ho prefers for this purpose is styled a bill in the nature of an original bill. Besides the different divisions of bills hero enumerated, original bills are usually divided into; — 1, Original bills j)raying relief; and 2. Original bills not praying relief.* Original bills praying relief are again subdivided into three heads :— 1. Original bills, praying the decree of the Court touching some right claimed by the person exhibiting the bill, in opposition to rights claimed by the person against whom the bill is exhibited ; 2. Bills of inter- pleader ; ar.d, 3. Certiorari bills.' Original billa not praying relief, are of two kinds : — 1. Bills to perpetuate the testimony of witnesses; and, 2. Bills of discovery. » The simplicity of modern proceedings, however, renders the foregoing subdivision of bills in Chancery com- pari»tively unimportant. As original bills of the first kind are those most usually exhibited, the reader's attention will, in the present chapter, bo principally directed to them. The other descriptions of bills will be more particularly considered, when we come to treat o^tho practice of the Court applica- ble to the particular suits of which they are the foundation. Bills which are not original, or which are merely in the nature of original bills, will be separately considered in a future part of the work ; but it may be here observed, that simple and economical modes of supplying the defects of original bills have been provided, which will be stated in the proper place, and which have rendered bills which are not original of rare occurrence. Section II. — The Authority to file the Bill. The first step to be taken by a party who proposes to institute a suit in Chancery, unless he intends to conduct the suit in person, is to autho- rise a solicitor practising in the Court to commence and conduct it on his behalf. It does not seem to be necessary that such authority should be in writing,* although it would, perhaps, bo better that a solicitor, i Ld. Red. 34, 37, 61. » Ld. Rod. 84, 37, 48, 60. s lb., 51, 68, 54. * Lord V. Kellett, 2 M. & K. 1. As to reyocalion of the authority, see Freeman v. Fairlie, 8 L.J. Ch. 44, v. C. E. For the authority required in the case of a bin by a public company, see East Pant Mining Company v. MerryweaWer, 10 Jur. N. S. 1281 : 13 W. R. 216, V. C. W. AUTHORITY TO FILS THE BILL. 265 before he commences a suit, should be in possession of some written authority for that purpose ; as if he is not, the onus of the proof of the authority will bo cast on him,' In order to warrant a solicitor in filing a bill, the authority, be it in writing or by parol, ought to be special; and it has been held that a general authority to act as solicitor for a party, will not bo sufficient to warrant his commencing a suit on his behalf:" although, under a general authority, a solicitor may defend a suit for his client. 3 The rule which requires a solicitor to be specially authorised to com- mence a suit on behalf of his client, applies as well to cases where the party sues as a co-plaintiff, as to cases where he sues alone ; and even to cases Avhere his name is merely made use of pro forma. In Wilson v, Wilson,* liord Eldon said, '* I cannot agree that making a person a plaintiff is only pro forma, and I am disposed to go a groat way in such cases : for it is too much for solicitors to take upon themselves to make persons parties to suits without a clear authority ; there are very great mischiefs arising from it." If a solicitor files a bill in the name of a pei*8on without having a proper authority for so doing, the course for such person to pursue, if he wishes to got rid of the suit, and is the sole plaintiff, is to move that the Mil may be taken off the file,* or dismissed* with costs, to be paid by the plaintiff ; and that the solicitor who filed the bill without au- thority may be ordered to pay to the defendants their costs of the suit, or to repay such costs to the plaintiff in case ho pays them ; and may be also oi*dered to pay the plaintiff's costs of the application, and his incidental expenses, as between solicitor and client."' The same course should be pursued where there are several plaintiffs, and all repudiate the suit. But where one or more of several plaintiffs desire to with- draw from the suit, they should move that their names may be struck out of the bill, and that the solicitor who has unauthorisedly used their names may be ordered to pay their costs of the suit, and the costs of the application. " » Hmer v. KiUghls, 6 Beav. 174 ; Hood v. PhiUips, ib. 176 ; Maries v. Maries, 28 L. J. Ch. 164, V. ' WOson V. mism, 1 J. & W. 457. See also Dundas v. Dutens, 1 Ves. J. 196, 300; BUgh v. Tredgett. 5 De G. & S. 74 : 15 Jur. 1101 ; Bewley v. Seymour, 14 Jur. 213, V. C. E. ; Re mnby, 3 Jur. N. S. 369 ; 8. C. nom. Norton v. Cooper, 3 Sm. & 0. 375 : and see SoUey v. Wood, 16 Beav. 370, where it was held t hat an authority given to a country eolicitor is sufficient to warrant his town agent in filing a bill. ' Wright V. Ca«ae, 3 Mer. 13. M J. & W. 458. • » Jerdein v. BrigM, 10 W. R. 880, V. C. W. ' Wright v. Casfle, 8 Mer. 13 ; Allen v. Bone, 4 Beav. 498 ; Crossky v. Crowther, 9 Hare, 2lii; At- kinson v. Abbot, 3 Drew. 251 . ' lb. : and gee the order in Allen v. Boris, Seton,852, No. 1. ' Tabbernor v. Tabbemor, 2 Keen, 679. For the order in that ease, see Seton, 853, No. 3. And see Wilson v. Wilson, 1 J. & W. 467 ; PtnnUr v. Knights, 6 Beav. 174 ; Hood v. PhiUips, ib. 176 ; Bee also MaUins v. Greenway, 10 Beav. 664 : 12 Jur. 66, 819, where a solicitor was ordered to pay the costs of unauthorised proceedings in the Master's office, on behalf of creditors. !^ 256 THE BILL. my ■f>\H-y Tho motioQ in either case must bo Mupportod by an affidavit of the respective applicants themsolvoH, that tho bill has boon filed without any authority from them. To avoid tho olfect of such an application, tho solicitor against whom it is made must show distinctly, upon affidavit, that ho had a special authority from tho party moving to in- stitute the suit; and it will not bo sufficient to assert generally, in 6pposition to the plaintitt's affidavit, that authority had been given. In Wright v. Castle, ' tho affidavit of the plaintiff was mot by another on the part of tho solicitor, stating, that an action had been brought by Die defendant against tho plaintiff, on certaki promissory notes : to restrain proceedings in which action tho bill had boon filed, although not b^-^ tho express directions of the plaintiff', yet in the course of business, and by virtue of a general authority, as the plaintiff's solicitor ; but Lord Eldon did not consider such authority sufficient. Notice of tho intended motion must be given to tho solicitor wlio filed the bill; and where one or more, but not all, the plaintiffs move, notice must also bo served on the co-plaintiffs, and on tho defendants, whose costs of appearance are usually ordered to bo paid by the solici- tor, if tho motion succeeds.^ Where the sole plaintiff applies, service on the defendants is unnecessary, at least before decree; and in a recent case their costs of appearing, where improperly served, had to be borne by tho plaintiff personally. 3 Tho motion should bo made as soon as possible after the plaintiff' has become acquainted with the fact of the suit having been instituted in his name : for although, as between him and the solicitor, the mere fact of tho plaintiff having neglected to move that his name should be struck out from tho record will not exonerate the solicitor ; * yet, as between tlie plaintiff and the other parties, tho Court, if there has been delay on his part in making such application, will not generally dismiss the bill, but will so frame the order as not to prejudice any of the parties to tho cause.* The last observation applies more especially to crises where the person whose name has boon used without due authority, is co-plaintiff' with others : for it can scarcely hai)pen, where he is solo plaintiff, that de- fendants should have an interest in resisting an application to dismiss the bill with costs (except indeed after decree) ; but where he is co- plaintiff, it fi-equently happens that dismissing the bill would interfere with tho interest of the other plaintiffs, or diminish the security of the > 3Mcr. 12. 3 TcMernorv. ToMernor, 2 Keen, 079 ; Scton, 853; Hood v! riiilhw, (5 Bcav. 170; rimer v. Knights, ib. 174. a JerdHn v. Bright, 10 W. K.880, V. C. W. * Hall V. Laver, IHaro, 671 : 5 Jur.211 ; see also Surge v. Brullen, 2 Ilarc, 373 ;7 Jur. 988; as totlic Hen of a solicitor npon a ftind recovered in the cause. » Tittertonv. Osborne, 1 Dick. 850; and see Tarbuck v. TarbtKk, Bcav. 131; Pinner v. KnighU, ib. 174 ; Hood v. PhiUips, ib. 176 ; Migh v. Tredgett, 6 De G. & S. 74 : 15 Jur. 1101 . AUTHORITY TO PILE THE BILL. 267 defendantH for costs : in such cases, the motion will usually be saved to the hearing, and then the solicitor will bo oi-dered to pay all the costs and expenses of the party whose name has been used without authority. ' And further than that, the solicitor was, in the case of Dtmrfasv. Dutens,' ordered to pay to the defendants the difference between taxed costs and their costs and expenses. Where a co-plaintiff was not apprised that his name had been made U80 of without his authority till after the bill had been dismissed with costs, and he was served with a subpa'na to pay them, Lord Eldon, upon motion, ordered the solicitor to pay to the defendant the costs, which had been ordered to bo paid by the plaintiffs to the defendants ; and also to pay to the plaintiff who made the application his costs of the application, as between solicitor and client. =* By the order made upon that occasion, the solicitor was ordered to pay the whole costs to be paid by all the plaintiffs to the defendants ; but he was to bo at liberty to make any application as to those costs, as against the other plaintiffs, as ho should be advised.* , As connected with this subject, it may bo noticed here that in certain cases it is necessary, before a suit is commenced, to obtain the sanction of the Court to its institution. The cases in which this is most usually done, are those in which the suit contemplated is for the benefit of an estate which is already the subject of a proceeding in Court, and the expenses of which are to be paid out of such estate. Thus, where there is a suit pending for the administration of assets, and it becomes necessary, in order to got in the estate, that a suit should bo instituted against a debtor to the estate, it is usual for the personal representative, previously to filing a bill, to apply, in the administration suit, for the leave of the Court to exhibit a bill for that purpose. And so, where a suit has been institu- ted for winding up partnership accounts upon a dissolution, and a receiver has been appointed to collect the outstanding effects : if it is necessary, in order to recover a debt duo to the partnership, that the receiver should institute a suit for that purpose, application should be made to the Court, on the part of some of the parties, that the receiver may be at liberty to file the necessary bill in the names of the partners. It is to be observed that, in all such cases, the Court would not formerly direct the institution of such a suit upon motion, although supported by > See Dunaas v. Dutena, 2 Cox, 235, 241 : 1 Ves. J. 196. ' 1 Ves. J. 200. ' Wade V. Stanley, IJ, & W. 674. * S. C. Reft. Lib. B. 1819, to. 1835. For other cases where a plaintiff, or a next flriend, has applied to be relieved from orders for payment by them of money or costs, without their knowledge of the salt, see Hood v. FfUUipa, 6 Beav. 176 ; Ward v. Ward, ib. 251 ; Bligfi v. Tredgett, 5 De G. A S. 74 : 15 Jar. 1101 ; Re Manby, 3 Jur. N. 8. 259 ; 8.C. twm. Norton v. Cooper, 3 Sm. & G. 376. In Hall V. Bennett, 2 8. &S. 78, where the bill had been dismissed with costs for want of prose- cation, the plaintiff's solicitor was ordered to pay the defendant's costs : the plaintiff having absconded befoio suit, and never authorised or sanctioned it. 17 >%l M s: % I 258 THE BILL. affidavits, without previously referring it to the Master to inquire whether it would be for the benefit of the parties at whose joint expense it was to bo : unless the other parties interested, bong of age, and com- petent to consent, chose to waive such reference.' Now, however, the proper mode of application for ordei-s of this description is by motion in Chambers, supported by affidavit or other evidence of the facts from which the Judge can determine whether the proposed suit is proper to be instituted ; and the opinion of an Equity barrister, in actual practice, is usually required, that there is a good ground of suit. In the same manner, where the property of an infant is the subject of n suit already depending, and it becomes necessary that another Nuit should be instituted on behalf of the infant, it is usual, before any steps are taken in it, to obtain in chambers, on motion, an order sanctioning such contemplated proceedings as being for the benefit of the infant.' It is to be observed, however, that such order can only be made where the property of the infant is already subject to the control and disposi- tion of the Court in another suit; and that in ordinary cases, where a person commences an original proceeding on behalf of an infant a^ his next friend, he is considered as taking upon himself the whole responsi- bility of it J nor will the Court, either before or after the commencement of the proceeding, direct an inquiry whether it will be for the infant's benefit, at the instance of the next friend himself (unless in cases where there are two or more suits brought by different next friends for the same object): although, as we have seen, it will sometimes do so at the instance of other parties.' It has been before stated, that the committee of the estate of an idiot or lunatic ought, previously to instituting a suit on his behalf, to obtain the sanction of the Court to the proceeding.* ^ It is to be observed that, with respect to all the above.mentioned cases, in which it is stated to be right, previously to the institution of a suit, to obtain the proper sanction, the omission to obtain such sanction is not a ground upon which a defendant to the suit can object to its proceeding. Section III. — By whom Prepared. The solicitor being duly authorised, the next step in the institution of a suit is to have the bill properly prepared. The duty of drawing 1 Miugrave v. Medex, 3 V. & B. 167. * See ante. > Ante. * Ante. t MATTER or THE BILL. 259 the bill ought, strictly, to be performed by the HoUcitor, who is allowed a fee for so doing ; and in England the draft must be signed by counsel, but our Order No. 76, renders this unnecessary. Section IV.— The Matter of the Bill. An original bill in Chancery is in the nature of a declaration at Com- mon Law,' or of a libol and allegation in the Spiritual Couvts." It was, in its origin, nothing but a petition to the King, which, after being presented, was referred to the Lord Chancellor, as the keeper of his conscience ; => and a bill still continues to be framed in the nature and stylo of a petition, addressed "To the Honourable the Judges of the Court of Chancery." Whore a bill prays the decree of the Court, touching rights claimed by the persons exhibiting it, in opposition to rights claimed by the person against whom it is exhibited, it must contain a statement show- ing the rights of the plaintiff or person exhibiting the bill, by whom and in what manner ho is injured, or in what he wants the assistance of the Court : and in all cases, the bill must contain, as concisely as may bo, a narrative of the material facts, matters, and circumstances on which the plaintiff relies, and must pray specifically for the relief the plaintiff may conceive himself entitled to, and also for general relief. This statement and prayer form the substance and essence of every bill ; and before entering more in detail into the consideration of the form of a bill, the reader's attention should first be drawn to certain general rules and principles by which persons framing bills ought to be guided in the performance of their task. .^. . in the first place, it is to be observed, .that every bill must show clearly that the plaintiff has a right to the thing demanded, or such an interest in the subject-matter as gives him a right to institute a suit cdhcerning it.* It would be foreign to the purpose of this work to at- tempt the enumeration of the various cases in which bills have been dismissed, because filed by parties having ho interest in the subject- matter, or no right to institute proceedings concerning it : to do bo, indeed, would necessarily lead to the consideration of the general principles of Equity, and would be more fitting for a treatise upon the • 8Bla.Coin.442. » Md. ; Glib. For. Rom. 44. ' See 1 Spence, Eq. Jar. 385, et seq. : 1 Ld. Camp. OhancellorB, Intro. : lb. 266, 343. * Ld. Red. 164 ; and Bee Jerdein v. Bright, 2 J. & H. 335 ; Mtes v. Fish, 8 Drew. 736 ; Columbine V. CMchesUr, 2 PhU. 27 ; 1 C. P. Coop. t. Cott. 296 : 10 Jar. 626. wmk U'- -^i^ 260 THE BILL. equitable jurisdiction of the Court than for a book upon its practice. All that need now bo naid upon this subject is, that if it is not shown by the bill that the party suing has an interest in the subject-matter, and a proper title to institute a suit concerning it, the defendant may demur ; ' thus, whore a plaintiff claims under a will, and it appears upon the con- struction of the instrument, that he has no title, a demurrer will bo allowed. In Brownsword v. Edwards,'' which is the case referred to in Lord Kodcsdale, in support of the above proposition. Lord Ilardwicko is reported to have said, upon the argument of a demurrer, that if the Court had not been satisfied, and had, therefore, been desirous that the matter should be more fully debated at a deliberate hearing, the demurrer would have been overruled, without prejudice to the defendant's inslstin/jj on the same matter by way of answer; but in a note to his trcatiHe,^ Lord Kedesdale observes, that ** perhaps this declaration fell from the Court rather incautiously : as a dry question upon the construction of a will may bo us deliberately determined upon argument of a demurrer, as at the hearing of a cause in the ordinary course, and the difference in expense to the parties may be considerable." Of the truth of this observation there can bo no doubt; and it is much to bo wished that, in cases of this description, where the right of the plaintiff in the subject- matter of the suit depends upon a simple point, such as that of the con- struction of a will, the practice of demurring to the bill were more frequently resorted to, as by such means considerable expense might frequently be saved : for if it appears at the hearing that the party filing the bill is not right in the construction he puts upon the instru- ment, the bill must be dismissed : which, if the plaintiff's bill had been demurred to in the first instance, would have been the result, without the additional expense caused by tho other proceedings.* The rule, that a plaintiff' should show by his bill an interest in the subject-matter of the suit, applies not to one plaintiff only, but to all the plaintiff's ; and if several persons joined in filing a bill, and it ap- peared that one of them had no interest, the bill was formerly open to demurrer : though it appeared that all the other plaintiffs had an in- terest in the matter, and a right to institute a suit concerning it. This, as we have seen, is no longer so; but the Court may make such order, • Ld. Ked. 154. •■» 2 Ves. S. 843, 247. And see Mortimer v. Hartley, .3 De G. & S. 316 ; Evans v. Evans, 18 Jur. 666. L. JJ. ; Cochrane v. Wiliis, 10 Jur. N. S. 168, L.JJ. ; OMingwood v. Eussell, 10 Jur. N. 8. 1062 : 13 W. K. 63, L.JJ. ; Lautour v. Attorney General, 11 Jur. N. 8. 48 : 13 W. R. 305, L.JJ. » Ld. Red. 154, n. (p). See Ferguson v. Kelty, 10, Grant 102. * Bat where the defendant allows the cause to be broui;ht to a hearing in suoh a case, the practice is to dismiss the bill without costs : mu v. Reardon, 2 S. & S. 431, 489 ; Jones v. Davids, 4 Rubs. 278 ; HoUingsuxn-th v. Sfudceshqft, 14 Beav. 492 ; Wsftft v. England, 29 Beav. 44 : 7 Jur. N. S. 168 ; Ernest v. Wise, 9 Jur. N. 8. 145 : 11 W. E. ; 206, V. C. K. ; Nesbitt v. Berrldge, 9 Jur. N. 8. 1046 : 11 W. a. 446, M. R. ; Godfrey v. Tucker, 9 Jur. N. S. 1183 : 12 W.R. 83, M. R. And see Sanders v. Benson, 4 Beav. 350, 357. :« MATTER oP THE BILL. 261 on the hearing, ns justice requires:' it must not however, bo supposed that it is not still important to avoid joining a pUiintitt' who hoH no inter- cut in the bill. The pluintifts in a suit must not only show an interest in the subject- mutter, but it must bo an actual existing interest; a more possibility, or even probability, of a future title will not be sufficient to sustain a bill ;» therefore, where a plaintitf, claiming us a devisee in the will of a person who was living, but a lunatic, brought a bill to perpetuate the testimony of witnesses to the will, against the presumptive heir-at-law, = and where persons who would have been entitled to the personal estate of a lunatic, if he had been then «lead intestate, as his next of kin, supposing him legi- timate, brought a bill in the lifetime of tho lunatic to perpetuate the testimony of witnesses to his legitimacy, against the Attorney-General, as supporting the rights of the Crown,* demurrers were allowed. For the parties in these cases had no interest which could be the subject of a suit: thej sustained no character under which they could afterwards sue; and therefore the evidence, if taken, would have been wliolly nugatory. Upon the same principle, it has been hold that a bill cannot be sustained by a purchaser from a contingent remainderman of his interest in the property, against a tenant for life, for inspection of title- deeds: although a bill would lie for that purpose by a person entitled to a vested remainder." But it must not be supposed that contingent remaindermen can, in no case, be plaintiffs : for in many cases (such us suits for the administration of, or to secure, the trust property to which they are contingently entitled), such persons may properly be plaintiffs ; «• and orders have been made, at the suit of such persons, for the payment of trust funds into Court.' A bill filed b}' a person who filled the character of tenant in tail in remainder, and his children, to perpetuate testimony to the marriage of the tenant in tail, (iould not be supported; because the father, being confessedly tenant in tail in remainder, could have no interest whatever in proving the fact of his own mar . iage, the remainder in tail being vested in him; and the other plaintiffs (the children) were neither tenants in tail nor remaindermen in tail, but the issue of a person who vias de facto and de jure tenant in remainder in tail, having the whole ic. ' 15 & 16 Vic. c. 80, 8. 49, ante. Our Orders 53, 54, 55. ^ Ld. Red. 156 ; and see observations of Lord Cottenham, in Fj/tiden v. Stepketis, 2 Phil. 148 P. Coop. 329: 10 Jur. 1019 ; Davis v. Angel, 31 Boav. 223 : 8 Jur. N. S. 709, 1024. ^ SackviU v. Ayleworih, 1 Vem. 106 : 1 Eq. Ca. Ab. S34, pi. 3 ; see also 2 Prax. Aim. 500, where the form of demurrer is set out. ♦ Smith V. Attorney- General, cited Ld. Red. 167 : 1 Vem. 106, n. ed. Raithby : 6 Ves. 266, 260 ; 16 Ves. 136. » Noel V, Ward, 1 Mad. 322, 399 ; and see Davis v. Earl qf Dysart, 90 Beav. 405 : 1 Jur. N. S. 743, and cases there cited, for instances of vested remaindermen. « Roberts v. Roberts, 2 De Q. & S. 29 : 2 Phil. 584. ■ Ross V, Ross, 12 Beav. 89; Governesses' Benevolent Institution v. Rushridij ^. 18 Beav. 467. ^ riv! .!' ■';*" 262 fma BILL. interest in him ; and consequently, the children had no interest in them, in respect of which they could maintain their bill.' Upon the same principle, where the dignity of Earl was entailed upon an individual who died, leaving two sons, ^he eldest of whom inherited the dignity : upon a bill filed by his eldest son, in his lifetime, against the second son of the first Earl, and the Attorney-General, >o perpetuate testimony as to his father's marriage, a demurrer was allowed. = Where the plaintiff does not show an existing interest by his bill, the disclaimer or waiver of one defendant in his favour will not sustain the bill against the other defendants.^ " " : ' Where, however, a party has an interest, '' it is perfectly immaterial how minute the interest may be, or how distant the possibility of the possession of that minute interest, if it is a present interest. A present interest, the enjoyment of which may depend upon the most reniote and improbable contingency, is, nevertheless, a present estate j and, as in the case upon Lord Berkeley's will,* though the interest may, with reference to the chance, be worth nothing, yet it is in contemplation of law an estate and interest, upon which a bill may be supported." ^ But, although a plaintiff may have a present estate or interest, yet, if his interest is such that it may be barred or defeated by thfi act of the defendant, he cannot support a bill ; as in the case put by Lord Eldun, in LordBursley v. FitzJiardinge,'^ of a remainderman filing a bill to per- petuate testimony against a tenant in tail. To such a bill it seems the tenant in tail might demur, upon the ground that he may at any time bar the entail, and thus deprive the plaintiff of his interest. A plaintiff must not only show in his bill an interest in the subject- matter of the suit, but he must also make it appear that he has a proper title to institute a suit concerning it j' for it very often happens, that a person may have an interest in the subject-matter, and yet, for want of compliance with some requisite forms, he may not be entitled to institute a suit relating to it. Thus, for instance, the exesutor of a deceased person has an interest in all the personal property of his testator ; but, till he has proved the will, he Cfsnnot assert his right in a Court of justice ; if, therefore, a man files a bill as executor, a: d does not state in it that he has proved the will, tht bill will be liable to d amuiTer. ^ » ^«aft V. il«a», 15 Ves. 180. !S6. " ' » EarlqfBeifast v. CM^7tester. S J. A W. 439, 449, 453. » CfrWtfi' V. mclk'tU,, 1 Hare, 306 : 14 Jur. 166, 325 ; Hollingsworth v. Shakeshqft, 14 Bcav. 492. • Lord Dursley v. Fitzhardinge, 6 Ves. 261. » Per Lord Eldon, ir Allan v. Allan, 16 Vee. 135 ; sea also Davis v. Angel, 31 Beav. 223 : 8 Jnr. N S. 709, 1084. • 6 Ves. 968 ; see, however. Butcher v. Jackson, 14 Sim. 444, and the observatious of Sir L. Sliad- well, V. C, at p. 465. ' Ld. Red. 165. • Humphreys y. IngMon, 1 P, Wms. 763. MATTER OP THE BILL. 263 An executor may, however, it seems, >>ending an application for pro- bate, file a bill to protect the estate, by obtaining an injunction or other- wise: although he alleges in the bill that he has not yet obtained probate.' '' "^ ' ' / Formerly it was necessary to allege, that the will was proved in the proper Ecclesiastical Court, though it was not necessary to mention in what Court ;' and this still applies to all wills proved before the consti- tution of the Court of Probate ; 3 but since that date, it is conceived that it is sufficient simply to allege that the will has been proved : though in pactice it is usual to allege that it has been proved in Her Majesty's Court of Probate, or that it has been duly proved. If an executor, before probate, file a bill, alleging that he has proved the Avill, such allegation will obviate a demurrer;* he must, however, prove the will before the hearing of the cause, and then the probate will be sufficient to support the bill, although it bear date subsequently to the filing of it. 5 In like manner, a plaintiff may file a bill as adL.inistrator before he has taken out letters of administration, and it will be sufficieiit to have them at the hearing. « > . It is to be observed that, although an executor or administrator may, before probate or administration granted, file a bill relating to the property of the deceased, and such bill will not, ou that account, be demurrable, provided the granting of probate or of letters of adminis- tration be alleged in the bill, ot a defendant may take advantfe^e of the fact not being as stated iu the bill, by answer: thus, in Simons v. Mihmn,'' where letters of administration had been granted to the defen- dant under the idea that the deceased had died intcstave, whereas, in fact, he hud made a will and appointed the plairt'ff his executor, who, before probate filed a bill, for the purpose of recc /eringpart of the assets of the testator from tho defendant, alleging that probate of the will had been granted to him, to which bill the defendant put in an answer stating that such was not the fact ; Sir Lancelot Shad well, V. C, allowed the plea. But, although an executor, filing a bill before probate, must, as we have seen, allege in it that he has proved the will, it is not necessary that in a bill against an executor such a statement should be made ; for if executors elect to act, the}- are liable to be sued before probate, and ' Newton v. Metronolitan Railway Company, 1 Dr. & Sm. 5a3 : 8 Jur. N, 8, 788; see Rawlings v. iMmbert, IJ. & H. 458 ; Steer v. Steer, ft W. R. 225, V . C. K. ^ Humphreys V. Ingledon, 1 P. Wms. 752. 'S0&21Vic. c. 77. . * Humphreysv.lngledmtXV.WmB.^i. . ., " Humphreys v. Humphreys, 3 P. Wms. ' Fell V. Lutwtdge, Bam. .320: Humphreys v. Humphreys, 3 aSL.J. Cli. lOV.C.K. '2 Sim, 241. P. Wms. 351 ; Horner v. Horner^ TUri:' ^ 264 THE BILL, cannot afterwards renounce. ' It also seems, that if a party entitled by law to take out administration to a deceased person, does not do so, but acts as if he were administrator, and receives and disposes of the property, he will be liable to account as administrator ; but in both cases it is necessary to have a duly constituted legal personal representative before the Court. ^ Where it appears that, in order to complete the plaintiffs title to the subject of the suit or to the relief he seeks, some preliminary act is necessary to be done, the performance of such preliminary act ought to be averred upon the bill, and the mere allegation that the title is comi)leto, without such averment, will not bo suflficient; thus, where a plaintiff claimed as a shareholder by i)urchasc, of certain shares in a Joint-Stock Company or Association, alleging in his bill, that he bad purchased such shares for a valuable consideration, and had ever since held the same, but it appeared in another part of the bill, that, by tLe rules of the company or association, no transfer of shares could be valid in Law or Equity unless the purc'iascr was approved by a board of directors, and signed an instrument binding him to observe the regula- tions ; Lord Brougham allowed a (^omurrer, on the ground that the performance of the rule above pointed out was a condition precedent, uiiJ ought to have been averred upon the bill, and that the allegation of the plaintiff having purchased the shares and being a shareholder, although admitted by the demurrer, was not sulBcient to cure the defect. 3 When a plaintiff claims as heir-at-law, it was formerly considered that he^iust state in his bill how his title arose ;* but it is now settled that an allegation that he is heir is sufficient.^ Where there is . a privity existing between the plaintiff and defen- dant, independently of the plaintift"s title, which gives the jdaintiff a right to maintain his suit, it is not necessary to state the plaintiff's title fully in the bill: thus, whore a plaintiff's claim against the defen- dant arises under a deed or other instrument, executed by the defen- dant himself, or by those under whom hvj claims, which recites, or is necessarily founded upon, the existence, in the plaintiff', of the right which he asserts, it is sufficient to allege the execution ofthe deed by the parties. In like manner, in the case of a bill, by a mortgagor in fee, ' SleiPitt V. Blewitt, Younge, 541. ' Creasor v, Robinsor, 14 Beav. B89 ; IB Jur. 1049, and the cases there referred to. 3 Walburn v. Ingilby, 1 M. & K. CI, 77 : see also Morrid v. Kelly, 1 J & W. 481 Cdbimi v. Dim- combe, » Stm. 151, 154 ; 3 Jur. t«54 ; EichiirUmi. v. (filbert, 1 Sim. N. S. 330 ; 15 J ur. -.m : aud CasseU v. SUf, a K. & J. 279, aa to the title to be shown to coi)yiight. * Lord Digby v. Meech, Biinb. W5; Tinker v. Uarwood, 7 Sim. 373. » Barrs v. Feiikes, 10 Jur. V. S. 466 ; 18 W. R. 066, V. C. W. : aud aee IMwne v. IIoUiim^coTth. 1 ("ox. 481, 489; Fo^. f'tering, 1 Ve*. J. 78. l)J|lV. MATTER OP THE BILL. 265 against a mortgagee, to redeem the mortgage, it is sufficient merely to state the mortguge-deed, without alleging that the mortgagor was seized in fee ; or if the morl ^agor has only a der'.vativo title, it is not necessary to show the commencement of such derivative title, or its continuance : because the right of the plaintiff to redeem, as against the defendant, does not depend upon the title under ^^ which he claims, but upon the proviso for redemption in the mortgage-deed. Upon the same principle, where a defendant holds under a lease from the plaintiff, the plaintiff need not set out his title to the reversion ; the fact of the defendant having accepted a lease from the plaintiff' being sufficient to preclude his disputing the title under which ho holds. ' In like mannei*, whore a man employs another as his bailiff or agent, to receive his rents or tithes, the right to call upon the bailiff or agent for an account does not depend upon the title of the employer to the rents or tithes. but 1o Iho privity cxinting between him and his bailiff c agent ; the eiii|doj ^r may, therefore, maintain a bill for an account, without Hhow- ing any title to the rents or tithes in question. , Wlierc, however, the plaintiff's right does not depend upon anj'' jiaiHiuhir privity between him and the defendant, existing indepen- uvi.ly of his general title to the thing claimed, there it will be necessary to show his title in the bill. Thus, where a bill is filed by the lessee of a lay impropriator against an occupier, for an account of tithes, there the right of tlio plaintiff to the ac6ount depends solely upon his title : he must therefore, deduce his title regularly, and show not only the existence of the lease, but that the person from whom it is derived had thefce.2 . • ' In like manner, whore a plaintiff in a bill for specific performance intends to rely on a waiver of title by the defendant, it is not sufficient to allege upon his pleadings the facts constituting the waiver ; he must show how ho means to use the facts, by alleging th.at the title hfis been waived thereby. » The same precision which is required in stating the case of a plaintiff', is not noccHHary in showing the interest of the defendant against whom the roliof is sought; because a plaintiff cannot always be supposed to be ' oguizant of the nature of the defendant's interest, and the bill must frequently prooood with a view to obtain a discovery of it : thus, Avhcre a bill was filed by a lessee for years for a partition, and the plaintiff, after i White V, iSmale, 33 Ueav. 72. subject,' thatt relief is, in faci in fraud or coll costs : or wher the plaintiff is A bill must i tiffs demands, also show that i gives the plain that a plaintiff may ha in the 1 vitj between tl upon the defent fled legatee has have it applied institute a suit pose of compel] cy:< for there are answerable Upon the same person, who wa personal repres held to be impo tor of a testator his certificate, made the assiij purpose of com of the bankrupt It is to be ob debtor and the creditors (.r ros be entertained ; by universal Ic ' Ante. » Ante. ' Ld. Red. 158. * BicMy V. Dorring Ld. Red. 158, n. " Elmsley v. M'Ault ' Utifrsm. V. Mair, Ld. Red. 168. ii. ' Ml. ; sec (ilgo Do'. Mnke^, ih. 573, fi N.S. ia45; .Terd ditor's deed, ant "IDeO. &S.370: Matter of thb bill. 267 ■•X' subject,' that the right to in..ke them parties is confined to cases where relief is, in fact, prayed against them, viz., where they are implicated in fraud or collusion, and it is specifically asked that they may pay the costs: or where they are the holders of a particular instrument, which the plaintiff is entitled to have delivered up.^ A bill must not only show thai the defendant is liable to the plain- tiffs demands, or has some interest in the subject-matter, but it must also show that there is such a privity between him and the plaintitf as gives the plaintiff a right to sue him : =» for it is frequently the case, that a pluintitf has an interest in the subject-matter of the suit which may ba in the hands of a defendant, and yet, for ,^ant of a proper pri- vitj between them, the plaintiff may not be the pert on entitled to call upon the defendant to answer his demand. Thus, though an unsatis- fied legatee has an interest in the estate of his testator, and a right to have it aj)plied in a due course of administration, yet he has no right to institute a suit against the debtors to his testator's estate for the pur- pose of compelling them to pay their debts in satisfaction of his lega- cy:^ for there is no ])rivity between the legatee and the debtors, who are answerable only to the personal representative of the testator. Upon the same principle, where a bill was filed by the creditors of a person, who was one of the residuary legatees of a testator, against the personal representative, for an account of his personal estate, it was iield to be impossible to maintain such a bill." And so, where a credi- ' tor of a testator, who had previously been a bankrupt, and had obtained his certificate, brought a bill against the executors for an account, and made the assignees under the testator's bankruptcy parties, for the purpose of compelling them to account to the executor for the surplus of the bankrupt's estate, a demurrer by the assignees was allowed. « It is to be observed, however, that, in cases of collusion between the debtor and the executor, or of the insolvency of the executor, bills by creditors (»r residuary legatees against debtors to a testator's estate will be entertained ;'' and in the case of Barker \. Birch,^ which was a bill by universal legatees under a will, for an account against a debtor to li'i ' Ante. '■' : . ! I ; . .. - ■ ' Ante. ' • I . • .■ , ; . 'Ld. Red. 15S. " • "'•■-•' ' ' * Bickly V. Dorringtm, cited Ld. Ecd. 158, rx. (h.)'. Barn. 32: 6 Ves. 749; Monk v. Pomfret, cited Ld. Ked. 158, n. (A). ^ " mmlx\l V. M'AiUay, 3 Bro. O. C. 624, 626. « Uttersm v. Mair, 4 Bro. C. C. 270, 276 : 2 Ves. J. 95, 97: 6 Ves. 749 ; Bickly v. Dorrington, cited Ld. Red. 158. ii. (h) : Brni. 38 : 6 Ves. 749. ditor's deed, and a purchaser from bira MDeG. «iS.370: llJnr. 881. 268 THE BILL. the testator's estate, Sir J. L. Knight Bruce, V. C, under the circum- stances, made a decree for an account, although collusion was not es- tablished between the debtor and the personal representative, and there was not any evidence of insolvency on the part of the personal repre- ^ sentative, or of his refusal to sue for the debt, other than his omission to institute proceedings for a considerable period. • ' . It seems also, that when persons other than the person^,! represen- tative of the testator have possessed specific assets of the testator, such persons may be made parties to a suit by a creditor.^ So also, wliere it is desirable to have the accou of the personal estate entire, a credi- tor may make the surviving parvuer of a deceased debtor a defendant to his bill, though no fraud or collunion is alleged ;=* and it seems that a joint creditor may maintain a suit against the representatives of a deceased partner, for satisfaction of his entire demand out of the assets, although the surviving partner is not alleged to be insolvent, and is made a party to the bill." In Bowsher v. Watkins,^ it was determined, that residuary legatees may sustain a bill for an account against the executor and surviving partners of the testator, though collusion be- tween the executor and the surviving partners is neither charged uor proved ; but it must be shown that the executors have neglected their duty of themselves suing. « It seems, that where it is necessary to allege fraud or collusion, a general allegation of it in the bill will not be sufficient to shut out a demurrer; but that the facts upon which such allegation is founded must be stated, as there is great inconvenience in joining issue upon such a general charge, without giving the defendant a hint of any fact from which it is to be inferred.'' With reference to the subjeet of privity between the plaintiff and de- fendant, it is to be observed, that the employment oi" agents or brokers in a transaction does not interfere with the privity between the princi- pals, so as to depri 'o them of their right to sue each other immediately. Thus, where a prir cipal transmits goods to :i factor, he maj' sue the 1 See Boltm v. Poicell, 14 Itav. 276; 9 De G. M. & G. 1 : 16 Jnr. «; Saunders v. T)rvce, 3 Drew. 140. " Newland v. Champion, 1 Ves. S. 105 ; eee ^Ibo the report of this caBe, 2 CoU. 46 : ami see ComtH V. Betty 1 Y. & 0. 0. C. 669 : 6 Jur. 869. 3 Ibid.; see also Gedge v. Train, 1 R. & M. 281, n. * yVUkimon v. Henderson, 1 M. & K. 588. 588 : HUls v. M'Rae, 9 Hare, 297 : 15 Jur. 76- t. Milne, nbi fin. Where an executrix neglectod tu defend a suit, leave was given to the plaintiff, in a suit tor tlie administration of the ectate, to do Bo in her name, Olding v. Poster, 28 Beav. 143. » Benfleld v. Solomons, 9 Ves. 86 ; Munday v. Knight, 3 Hare, 497, and cases cited in note, p. 501 : 8. Jur. 904; Botfumleyv. Squire, 1 Jnr. N. 8. 694, V. C. K.; Moss v. Bainbriqgc, 3 Jur. N.^ 68, V. C. W. ; GiU>ert v. Lewis, 1 De G. J. & 8. 38, 49, 60 : 9 Jur. N. 8. 187. MATTER OF THE BILL. 269 person who buys of the factor; and where a bill was brought by some merchants against the defendants, to discover what quantity of straw hats ho had purchased of their agents, and for payment to them, and not to the agents, a demurrer was overruled : ' and so, where a mer- chant, acting upon a del credere commission, became bankrupt, having sold goods of his principals for which he had not paid them, and, shortr. ly before his bankruptcy, drew bills on the vendees, which he delivered to some of his own creditors to discharge their demands, they knowing his insolvency, a suit by the principals against the persons who had re- ceived the bills, for an account and payment of the produce, was sus- ta'ned.3 A bill must not only show that the plaintiff is entitled to or interest- ed in the subject-matter of the litigation, and is clothed with such a character as entitles him to maintain the suit, and that the defendant is also liable to the relief sought against lam, or is in some manner in- terested in the dispute, and that there is such a privity between him and the plaintiff as gives the plaintiff a title to sue him, but it must also pray the Court to grant the proper relief suited to the case, as made by the bill ; and if, for any reason founded on the substance of the case as stated in the bill, the plaintiff is not entitled to the relief he prays, either in the Avhole or in part, the defendant may demur. In some of the most ancient bills, as appears by the records, the com- plainant does not expressly ask any relief, nor any process, but prays ♦he Chancellor to send for the defendant and to examine him ; in others, Avhero relief is prayed, the prayer of process is various: sometimes a habeas corpus cum causa, sometimes a subpcena, and sometimes other writs.' Afterwards, the bill appears to have assumed a more regular form, and not only to have prayed the subpoena of the Court, but also suitable relief adapted to the case contained in the statement : * which is the general form of all bills in modern use; except that, since the late Act, the prayer for subpcena is omitted. But although it was the general practice, previously to the late Act, in all cases where relief was sought, to specify particularly the nature of such relief, yet, it seems that such special prayer was not absolutely necessary, and +hat praying general relief was sufficient :« and, in Partridge v. Haycraft,^ Lord Eldon said, that he had seen a bill with a simple prayer that the defendant might answer all the matters aforesaid, and then the general prayer for relief ' iwe« V. Tfeaw, 2 Atk. 394. .- -. ,1 - f. ' A'f'iman v. Godfrey, cited Ld. Red. 160: 2 Bro. C. r. 382. ' Jud. Anth. M. R. 91, i« ; see 1 Spence Eq. Jur. 868, et seq. ' Jud. Auth. M. R. 91, 92 ; see 1 Spence Eq. Jur. 868, ei seq. ' Cook V. Martyn, 2 Atk. 3 ; Ch-imes v. French, id. 141. . • 11 VcB. 574. ■ 'V^ ' Mr ^ 270 THE BILL. By the Act to amend the practice of the Court of Chancery it is now provided, that the plaintiff shall pray specifically for the relief which ho may conceive himself entitled to, 9,nd also for general relief. > The requisites above set out are necessary in every bill which is filed in a Coui't of Equity for the purpose of obtaining relief. There are other requisites appertaining to bills adapted to particular purposen, which will bo hereafter pointed out, as well as those distinctive proper- ties which belong to bills not filed for the purposes of relief. But be- sides those points which are generally necessary to bo attended to in the frame of all bills, as each case must depend upon its own particular circumstances, matters must be introduced into every bill which will occasion it to differ from others, but which it is impossible to reduce under any general rules, and must bo left to the discretion of the drafts- man. Care, however, must be taken in framing the bill that every thing which is intended to be proved be stated upon the face of it; otherwise, evidence cannot be admitted to prove it.» This is required, in order that the defendant may be aware of what the nature of the case to be made against him is. The necessity of observing this rule was strongly insisted on by the L. C. B. Richards, in the case oi'IIally. Malthy.^ And in Montesquieu v. Sandys,'' the principle upon which it is founded is strongly illustrated; in that case, a bill was filed to set aside a contract entered into by an attorney for the purchase of a rever- sionary interest from his client, on the ground of fraud and misrcpre sentation; the evidence adduced in support of the allegation of fraud, did not, in Lord Eldon's opinion, substantiate the case as laid in the bill : a transaction, however, was disclosed in the evidence which his Lordship appeared to think would have raised a question of consider able importance in favor of the plaintiff, if it had been properly represented upon the pleadings ; but as it had not been stated in the bill, he thought it would be far too much to give relief upon circum- stances which were not made a ground of complaint upon the record. It is to be observed in this place, that not only will it be impossible to introduce evidence as to facts which are not put in issue by the bill, but that even an inquiry will not be directed, unless ground for such inquiry is laid in the pleadings. « Thus, where a bill was filed for a > 16 & 16 Vic. c. 86, 8. 10. Oar Order 74 is to the same effect. " Gordon v. Gordon, 3 Swanst. 472. It is no longer necessary to charge tho evidence relii' on, \ except for the purpose of procnring admissions: per Sir W. P. Wood, V. C, Mansell s.FMei, 2J. &H.313,318. 3 6 Pri. 240, 259. * 18 Ves. 302, 314 ; sec also Powys v. Mar^field, 6 Sim. S65. » HoUmvay v. Millard, 1 Mad. 414, 421 ; iScarf v. Sonlby, 1 McN. & G. 3M, 375 ; see, however, Baif V. Bradley, 7 De G. M. «Si G. 597 : 2 Jur.lT. 8. 99 ; 2 Sm. & G. 531 : 1 Jur. N. S. 489 ; and see, f« cases where enquiries have been directed on suggestions in answer, M^Mahon v. BurckuA PhU. 137, 132 ; Barrett v. Stockton and Darlington Sailway Company, 1 U. L. Ca. 31: 11 Ci- « F.590. MATTER OF THE BILL. m foreclosure, and a motion was made for a reference to the Master, under the 7th Geo. II. c. 20, to inquire into the amount due upon the mort- gage, and it was insisted that the Master ought to bo directed to take an account of the costs incurred by the plaintiff in certain proceedings in an ejectment at Law which wore not alluded to in the bill, the Court held that no such inquiry could be directed, but gave the plaintiff leave to amend his bill in that respect.' It is, moreover, an established doctrine of the Court, that where the bill sots up a case of actual fraud, and makes that the ground of the. prayer for relief, the plairitirt' is not, in general, entitled to a decree by establishing some one or more of the facts, quite independent of fraud, but which might of themselves create a case under a distinct head of Equity from that which would be applicable to the case of fraud, origi- nally stated.^ .; ^ ., , . .... .-.^ ," wi t." ' It is right hero to observe that, independently of the qualities which have been above pointed out as necessary to bills in general, it is re- quisite that the object for which a bill is brought should not be Jjeneath the dignity of the Court: for the Court of Chancery Avill not entertain a suit where the subject-matter of the litigation is under the value of £10; except in cases of charities, =* or of fraud,* or of bills to establish a general right, as in the case of tithes,* or other special circumstances.* It is said,' that the Court will not entertain a bill for land under the yearly value of 40s. :'' but instances occur in the books Avhero bills have been entertained for the recovery of ancient quit-rents, though very small, viz., 2s. or 3s. per annum. ^ It seems, that if a bill is brought for a demand which, by the rule of the Court, cannot bo sued for, the. defendant may either demur to it, on the ground that the plaintiff's de- mand, if true, is not sufficient for the Court to ground a decree upon,' or he may (which is the most usual course), move to have the bill dis- missed, as below the dignity of the Court." But everx if the defendant should take neither of these courses, yot, when the cause comes to a hearing, if it appears that, on an account taken, the balance due to the plaintiff will not amount to the sum of £10, the Court will dismiss the ' Millard v. Magor, 3 Mad. 433. • ' Pric. V. Berrington, 3 M'N. & G. 4a«: 15 Jur. 999; Macqnire v. O'Reilly, 3 Jo. & Lat. 2:4; .^er- rabyy. Hobsan, 2 Phil. 855, 258; Glascott v. Lang, ib. 310, 322 ; Wilde v. Gibson, 1 H. L. Ca. 606 : Sugd. Law Prop. 682 ; Baker v. Bradley, mi svp. ' Parrot v. Patdet, Gary, 103 ; Anon. 1 Eq. Ca. Ab. 75, margin. *Bunb.l7, a. :. - - : ' Griffith V. Leioi>>. 2 Bro. P. C. cd. Toml. 407. " Ord. IX, 1. Wc iiave no order on 'his subject. The only provisions relating to it are those of the County Court Equity Act ' 1 Eq. Ca. Ab. 76, margin ; Almy v. Pycrqfi, Cary, 103. " Cocks V. Foley, 1 Vem. .369. ' Fox V. Frost, Rep. t. Finch, 253. "'Mo8.47,356;Bunb.l7. ai2 THE BILL. bill.' Thus, where, upon a bill being brought relating to tithes, it was clearly admitted that the plaintiff had a right to some tithes of the do- fondant, but the tithes which wore duo appeared to be only of the value of £5, Lord Ilarcourt dismissed the bill at the hearing ;» and in Brace V. Taylor,'^ a similar objection was taken, at the hearing, and allowed. But in Beckett v. Bilbrough,* the suit was held to bo sustainable, although the sum recovered was only £9, on the ground that the plaintiff, when ho filed his bill, must have boon justified in supposing that a larger sum would be recovered ; and the defendant, who know the amount, had not given any information respecting it.» A bill must not only bo for a subject which it is consistent with the dignity of the Court to entertain, but it must also bo brought for the whole subject. Tho Court will not permit a bill to bo brought for part of a matter only," so as to expose a defendant to bo haiTassod by re- peated litigations concerning the same thing ; it, therefore, as a general rule, requires that every bill shall be so framed as to affoi-d ground for such a decision upon the whole matter, at one and the same time, as may, as far as possible, prevent future litigations concerning it. It is upon this principle that the Court acts, in requiring in every case, with such exceptions as wo have noticed above, tho presence, cither as plain- tiffs or defendants, of all parties interested in tho object of tho suit. And upon the same princij)lo, it will not allow a plaintiff who has two distinct claims upon tho same defendant, or to which the same defen- dant may eventually prove liable, to bring separate bills for each parti- cular claim, or to bring a bill for one and omit tho other, so as to leave tho other to be the subject of future litigation. Thus, in Purefoy v, Purefoy,'' where an heir, by his bill, prayed an account against a trus- tee of two several estates, that were conveyed to him for several and distinct debts, and afterwards would have had his bill dismissed as to one of tho estates : and have had the account taken as to the other only, the Court decided that an entire account should bo taken of both estates : <* for that it is allowed as a good cause of demurrer in this Court, that a bill is brought for part of a matter only, which is proper for one en- tiro account, because tho plaintiff shall not split causes and make a mul- tiplicity of suits." And so, where there are two mortgages, and more money has been lent upon one of them than the estate is worth, the > Coop. Eq. PI. 166. 9 Cited 2 Atk. 253. « 2 Atk. 263. . « SHare, 188:14Jur. 238. » In Smith v. Matthews, M. R., 2 July, 1859, the usual decree was nide to administer real and per- sonal estate on a bill by a creditor, suing on behalf of aU the creditors of the deceased debtor; though his individual debt, as alleged in the bill, was under jE5. • Ld. Red. 188. MVern.29. MATTER OF THE BILL. 273 heir of the mortgagor cannot elect to redeem one and leave the heavier mortgage unredeemed, but Hhall bo compelled to take both.' Upon the same principle it is held, that " where there is a debt secured by mortgage, and also a bond debt : when the heir of the mortgagor comes to redeem, he shall not redeem the mortgage without paying the bond debt too, in case the heir be bound. "^ The ground of this rule is the prevention of circuity of remedy : for, as the bond of the ancestor, whore the heir is bound, becomes, upon the death of such ancestor, the heir's own debt, and is payable out of the real estate descended, it is but reasonable that, where the heir comes to redeem the estate by pay- ment of the principal money and interest, ho should at the same time be called upon to pay oflF the bond ; as otherwise, the obligee would be driven to sue him for the recovery of the bond, which in the result might bo payable out of the sajne property that the heir has redeemed. When it is laid down as a rule, that the Court will not entertain a suit for part of a matter, it must be understood as subject to this limi- tation, viz., that the whole matter is capable of being immediately dis- posed of: for it the situation of the property in dispute is such, that no immediate decision upon the whole matter can be come to, the Court will frequently lend its assistance to the extent which the actual state of the case, as it exists at the time of filing the bill, will warrant. Upon this principle Courts of Equity act, in permitting bills for the preservation of evidence in perjpetuam rei memoriam : which it docs upon the ground that, from the circumstances of the parties, the case cannot be immediately the subject of judicial investigation ; and if it should appear upon the bill, that the matter to which the required testimony is alleged to relate can be immediately decided upon, and that the witnesses are resident in England, a demurrer would hold.^' It is upon the same principle that the Court proceeds, in that class of cases in which it acts as ancillary to the juriisdiction of other Courts, by permitt- ing suits for the preservation of property pending litigation in such Courts; or by removing the impediments to a fair litigation before tri- bunals of ordinary jurisdiction. In all these cases, it is no ground of objection to a bill that it embraces only part of the matter, and that the residue is, or may be, the subject of litigation elsewhere. The preser- vation of the property, or the removal of the impediments, is all that the Court of Equity can effect; the bill, therefore, in seeking '«! des- cription of relief, seeks the whole relief which, in such cases, .» v^ourt of Equity can give : but if a bill, praying only this description of relief, ' Ibid. ; Margrave v. Le Hooke, 2 Vem. 207. ' ShutUeworth v. Laycock, 1 Vern. 246; Anon. 2 Ch. Ca. U\i; and see Jones v. Smithy 2 Vee. J. 376; Bee also Mvy v. Norioood, 5 De G. & 8. 240 : 16 Jur. 493 ; Sinclair v. Jackson, 17 Beav. 405; PiBher on Mort. 881. ' Ld. Red. 150. 18 i .1 ^ I i^r <^, IMAGE EVALUATION TEST TARGET (MT-3) {./ ^ „** V^ ■^A V^^ 1.0 ^l^i U£ 111.1 J.-^KS ^ -^ ■_ Photographic _Scieiices Corporation 33 WtST MAIN STRUT WIBSTIir.N.Y. MSM (716) •73-4503 '^ I 274 tHE BILL. should disclose a case in which a Court of Equity is capable of taking upon itself the whole decision of the question: in such a case, it is ap- prehended, the hill would bo defective, in not socking the relief which the plaintitt' is entitled to. With reference to this part of the subject may he noticed the nunh litigated question, to what extent a person engaged in trade in co- partnership v-an have relief in Kquity against his partners, willi.iiii praying a dissolution of the partnership ; uiwn this point the decisions were very conflicting. In Fonnan v. Hoinfraij,^ Loi-d Eldon said he did not recollect an instance of a bill filed by one partner against anolJHr, pi aying an account merely, and not a dissolution: proceeding on tin- foundation that the partnership was to continue; and obsci*ved u])(m t" 'i inconvenience that would result if a partner could come here for an avc?5' "t nierely, pending the partnei-shii^, as there seemed tojje notliin/,' to pi 3T Jilt his coming annually;' and in Loscomhev. Russdl,^ Sir Lame- lot rr' adv'cU, V. C, allowed a demurrer to a bill praying the account ot a pii"tacrship, because it did not pray for a dissolution. In Harrison v. Annitiir/e,* however, a contrary opinion was expressed by Sir John Leach, V. C. ; and in Ricluirds v. Davies,^ which was a bill by one part- ner against another, praying for an account of what was due to the plaintiff respecting past partnci-ship transactions, and that the partner- ship might be carried on under the decree of the Court, His Honor de creed an account of past partnership transactions, but said that he could make no order for carrying on the partnership concerns, unless with a view to a dissolution. In pronouncing his judgment upon that case, the learned Judge obs(>rved, that a partner, during the partner- ship, has no relief at Law for monies due to him on a partnership account ; and that, if a Court of Equitj- refuses him relief, he is wholly without remedy : which would bo contrary to the plain principles of justice, and cannot be the doctrine of equity. With respect to the objection that the defendant might l>o vexed by a new bill, M'henover new profits ac- crued, his Honor said : " What right has the defendant to complain ot such new bill, if he repeats the injustice of withholding what is due to I a v. & B. !K9 ; and i«oc MamhcM v. Colman, 3 J. & W. 868 ; Collycr on Psrtnersliip, m ; I-ind- ley on I'artncrahip, 762. » II Is said by one of Um learned reporters, In n note to 8 V. & B. *)0, that, in tho- case of tlicHtn'r, the Court lias rvfiised to take Jurisdiction upon any other principle than a dissolution of nurtncr- . ship ; Watfrii v. Taylor, 15 ^ es. 10. But It is tc be observed, that theatres are property nf « very peculiar description, and that any Interference with the management of them oy the Court might be productive of irreparable damage and luin to the parlies concerner!, and that it i^ upon this principle that, in watem v. Taylor, the Court hesitated to interf<-.e duriuK the exi^ tence of the partnership : see 15 Yes. 90. It was said by the Solicits -General, argvtndo in Loicombe v. jRiiwell, that it appeared from the brief in Forman v. Horr\fra\i, that the plainiiff there prayed for an account, which was to be continued until the end of the term of the pariner •hip : 4 Sim. ». * 4 Sim 8, 10. 4 4 Mad. 143, cited in Loscombe v. RimtU, ubt gup. * 3 R. & M. 347 ; and sec observations of Lord Cottcnbam in Waitcorth v, JMt, 4 H . dc C. 6<'1V, ant'' the plain which act qrotcd ci cited in a for the p( without i the case i and that I partnei'sh sale of St pajwr) ; a merely th( The same ferred to i jiartnorshi was, purtn a partnei's necessary ( In Boher \y not the partners, e corn. It ii every case I apprehen ill which a raised the dissolution where the pray for a in which t partiiershii fondant is com.* In cndea extensive taken not t brace in it MATTER OF Til" BILL. 27ft the plaintiff? Would not the same ohjcction lie in a Milt lor titheis, which accrue de anno in annum f" It is to bo observed, thai in the last quoted case of Richards v. Davics, the case of Chappie v. Caddl^ was eited in argument, and is i*oforrod to by the reporters as an authority for the position that a decree may be made for partnership accounts without the bill having prayc«l a dissolution ; but, upon reference to the case itself, it will be ibund that it was one of a very peculiar nature, and that the pMncipal object of the suit was, not an account of the partnci-ship transactions, but, to have a declaration as to the ofl'ect of a sale of some shares in a partnership undertaking (the Ulohc news- paper) ; and that the account of the profits which was deci'oed was merely the consequence of the declaration of the Court upon that point. The same observation applies to Knowles v. JJawjhton,^ which is also re- ferred to in Richards v. Davies:^ there, the bill was tiled to establish a jiartnorship in certain transactions, and the sole question in the case was, purtnership or no partnership; and the Court being of opinion that a partnei'ship did exist in part of the transactions referred to, as a necessary consequence decreed an account of these transactions. In Roberts v. Eberhardt,* Sir W. V. Wood, V. C, said : " It is certain- ly not the oi*dinary practice of this Court to direct an account between jiartners, except upon a bill for the dissolution of the partnership con- cern. It is true that it is net now necessary to ask for a dissolution in every ca.so in which relief is sought respecting partnership affairs; but 1 apprehend that when a bill seeks an account, that is one of the cases in which a dissolution must be prayed : unless some special ground is raised the general accounts cannot be taken, without asking for the dif^solution of the firm." It is conceived that it is now settled that, where the general accounts of the partnership are sought, the bill must pray for a dissolution, except in special cases ; but that there are cases in which the Court will interpose, tc support as well as t(^ dissolve a purMiership: as by appointing a receiver, where the conduct of the de- fendant is such as to endanger the existence of the partnership con- cern.* In endeavourir.j' to avoid the error of making a bill not sufficiently extensive to answer the pui-poso of comjilete justice, care must be taken not to run into the opposite defect, have attempted to lay down an absoluio rule. The only way of reconciling the authorities ui)on this subject is, by diverting to the fact, that although the Ixjoks speak generally of demurrers for multifariousness, yet in truth such demurrei's may Ik- divided into two distinct kinds. Frequently the objection raised, though termed multifariousness, is in fact more properly misjoindrr;' that is to say, the cases or claims united in the bill are of so ditlercnl a character, that the Court will not permit them to be litigated in one record. It may be that the plaintiffs and defendants are parlies to the whole of the transactions which Ibrm the subject of the suit, and never thelcss thoMc transactions may bo so dissimilar, that the Court will not allow them to ho joined together, but will require distinct rccoid^. But what is more familiarly understood by the term multifariousness, as applied to a bill, is where a party is able to say ho is brought as a defendant u}X)n a rei-ord, with a largo portion of which, and of the ease made by which, he has no connection whatever." Thus, whore a bill was exhibited by trustees under a trust for sale, against several persons, who were the purchasers of the trust estates, which had been sold to them by auction in dift'erent lots. Sir Thomas Plumer, V. C, allowed a demurrer which had been put in by one of the defendants, on the ground that the bill was multifarious. His Honor said : "This Court is always averse to a multiplicity of suits, but certainly a defendant has a right to insist that hois not Iwund to answer a bill containing several distinct and separate matters, relating to individuals with whom it has no concern."' In a subsequent case, where an information and bill were filed for the purpose of setting aside leases, granted by the same trustees at different times to different persons, the same learned Judge held, that if the case had been free from other objections it would have < By the 15 & 16 Vic. c. B6. s. 4ft. ante, obiecUoM for mliloinder of nlalnlifh arc nb<>lli>h(> Broolu V. Lord Whitivorth, 1 Mad. 86, 80 ; see also Bayner v. JuUan, 3 DIok. 677 ; 5 Mad. 144, n The marginal note to 9 Diok. 677 is wronc ; and see Jtumn v. OreenhiU, 90 B-iav. rAi; 1 4 N. R. 60, V. C. W. ; Pyper v. Cameron, 18 Grant 131. MATTER OP THE BILL 277 b?en liable to the charge of multifnriousnes».' The same principle was afterwards acted upon by Lord Eldon, in Satvidge v. Hyde,^ where a bill had been filed for an account of a testator's estate, and also to set aside certain sales which had been made by the executor and trustee to him- self and another person of the namo of Laying, a demurrer to which bill, put in by Laying, had been overruled l>y Sir John Leach, V. C.» The case 'came on before the Lord Chancellor, by appeal : when his Lordship reversed the judgment of the Vice-Chanceilor, and allowed the demurrer: observing, that "when there are trustees to sell, and a bill is filed against them, it is not usual to make the purchasers parties, but to state the contracts and pray an inquiry." His Lordship, how- ever, added, that "there may be cases which cannot be delayed till those inquiries can be made, on account of injury that may be done in the meantime." It is to be remarked that Sir John Leach, in pronouncing his judgment u|X)n the above demurrer, observed with reference to multifariousness, that " in order to determine whether a suit is multifarious, or in other \voi*d.s contains distinct matters, the inquiry is not whether each defen- dant is connected with every branch of the cause but whether the plaintiff's bill seeks relief in respect of matters which are in their nature separate and distinct If the object of the suit be single, but it happens that ditterent persons have separate interests in distinct questions which arise out of that single object, it necessarily follows that such difl'erent pei-sons must be brought before the Court, in order that the suit may conclude the whole subject."* There is no doubt that, in the above obsen'ation, the learned judge stated the principle con-cctly : though in his application of it, ho went, in the opinion of liord Eldon, too far.i Although the administration of the estates of two ditterent persons cannot, in general, be joined in the same suit, where the parties inte- rested in such [estates are different, yet, where the same parties claim the benefit of both estates, and they are so connected that the account of one cannot bo taken without the other, the joinder of them in tht same suit is not multifarious." \ ■ ' AUorneyOeMral v. Mous, 3 Mad. 8W, 3a'». Soe Cbniior v. B. U. C. 12 Grant. 4.3. ' Jac. 151. 15.3 ; and »<•• Lund v. Blandthanl. 4 Hare, 9, lU ; Tliomas v. Been, 1 .Tur. N. 8. 197, M. K. . Norri$ v. Jacktoii, IJ. & H. 319 ; 7 Jur. N. M. 510. See OIom v. Munmn, 13 Grant 77. '5Ma«1.13S. * SalHdge v. Hyde, 6 Mad. 140. '• Ho« Turtur r. RMMon, 1 8. A 8. 31S, SIB : 8. C, nom. Turner v. DovbUday, 6 Mad. 94 : Dunu V. DuM, a Sim. aW; Marcot v. Pebrer, 3 Sim. 4m ; Jerdein v. Bright, § J. & U. 835. See iMuek* V. Louekt, 18 Qrant, 48. *VampbtU y. Maekat.XM. A C. a03, 898 ; Lewi» v. Edmund. Him. 351, S.'Vt ; Bump v. OrtenhiU, » B*av. 518: 1 Jur. N. 8. 188; Attorney- (/enerat v. C'radock,HM. & C. 86. 93; 1 Jur. 686 ; ramg v. Hodget, 10 Hare, 158. s: i it 278 THE BILL. / Til is observation leads us to a digtinction pointed out by Lord Eldoii in the case of Salvidge v. Jfyde,^ and which has perhaps been extended by later cases. The bill in that case was fibd by persons interested under a will, and by creditors of the testator, to set aside two contract**, one of which had been entered into by the trustees for sale of an estate to one of their own number, and the other for the sale of another estate to the defendant Laying; and Lord Eldon, although he thought that the object of setting aside the contract entered into with Laying could not bo embraced in a bill to cot aside the contract entered into with the trustee, yet held, that if the trustee had purchaeod for himself, and then Laying had bought the same estate of him, the case would have b*- u different.' From this it may bo inferred, that an objection for multifuriousnesM will n bo allowed, where the person making the objection has united his cu with that of another defendant, against whom the suit is entire and ineapableof being separated. / kI so, in Benson v. Hadfield,^ where the plaintiffs had appointed A., jB., .md C. their foreign agents, and A. had retired, whereupon the plaintiffs had appointed 5., C, and D. their agents, and then filed a bill for an account of the two agencies, A., the retiring party, demurred for multifariousness. In giving judgment upon the demurrer, Lord Lungdale, M. R., observed : " I can very well conceive a case jjroperly stated, in which it would be quite necessary and it may ultimately be quite necessary in this case, to continue any person who was a partner in one of those agency firms, a party to the cause by which the accounts are to be taken ;" but, upon perusal of the bill, ho did not find any such allegations as appeared to render it necessaiy to continue, as pai'ties to the suit, the different persons parties to the transactions, and consequently he allowed the demurrer. In the case of the Attorney-General v. The Corporation of Poole,* where the case against one defendant was so entire as to bo incapable of being proi Joe. 161. a Salvtdge v. Hyde, Jac. 158. * 6 Boav. 640, 663. 4 4M. A; C. 17, 31; SJnr.lOSO: SCI. & Fin. 409, nom. Airrv. AUornty-OtMrai ; see alio Ime* V. Wearing, 3 De G. A S. T<9, which was a oaae of foreclonire of three diHinct ectatw, um > prayer to net asidu a sale by a prior mortgagee of one of Uiem, as improvident. * 1 M. 4c C.003; fUH\»e:e Attorney- Oeneraly. CradoeA, 8 M. A O. 86,96: lJiir.666: WaMam^ Stainton, 9 Jur. N. S. l-^iOl ; 13 W. R. 03, L.JJ. overruling, S. G. 1 H. * M. 8S& MATTER OP TIIE BILL. 2t9 necessary parties for the purpose of enforcing that common interest, the circum8tancc of tiome of the defendants being subject to distinct liabilities, in respect to difterent branches of the subject-matter, will not render the bill multifarious. The facts of that case were as follows : Sir James Campbell, by a deed of settlement executed on his marriage with Lady D. L. Camj)bell, hatl vested a fund in two trustees, il. andB., upon trust for his wife for life, and after her decease in trust for the sons of the maiTiage who should attaiii the age of twenty-one years, and daughters who should attain twenty-one years or marry : with a proviso that the persons to be appointed guardians of the children by his will, together with the trustees of the settlement, should have authority to apply the interest, and also, in certain cases, part of the capital, of the children's presumptive shares, towai-ds their maintenance and advancement during their respective minorities. By a seconf^ deed, executed after marriage, Sir James Campbell vested another f '\d in two other trustees, C. and 2)., but upon similar trusts as those 'the first nottloment : and by his will, after making some specific bequests to his wife, he bequeathed his property to^., 5., and C, upon certain trusts for the benefit of his children, and appointed^., B., and C, his exe- cutors and guardians of his infant children, ii^ conjunction with their mother. After the death of Sir James Compbell, Lady D. L. Campbell, the wife, together with the children of the man'iage, filed a bill against A., B., C, and i)., for the accounts and administration "of the property comprised in the two deeds and will, to which bill a joint demurrer was put in by A., B., and C, on the ground of multifariousness. The demurrer was, however, overruled, upon argument, by Sir Lancelot Shadwell, Y. C, and afterwards by Lord Cottenham upon appeal ; his Loi-dship being of opinion, that the result of the principles to be extracted from the cases was, that where there is a common liability and a common interest, the common liability being in the defendants, and the common interest in the plaintiffs, different grounds of property may be united in the same record. ' « It should be noticed liere, that where the right of a person to call upon the Court for specific relief against another is so encumbered that he cannot assert his own right till he has got rid of that incumbrance, he cannot include the object of getting rid of the incumbrance, in a suit for the specific relief which, but for that incumbrance, he would be entitled to ; and that if he attempt to do so by the same suit, his bill will be multifarious. Thus, it was held by Lord Eldon that, when a bill is filed for specific performance, it should not be mixed up with a '.« s: See 1 H. & C. 280 THE BILL. prayer for relief against other persons cLiming an interest in thi' estate ; and that, if there is a title in other persons which the plaintitt is bound to get in, he should file a bill for specific performance only, and should fortify the defect in his title, by such means as he can, so aw to be enabled to complete it by the time when the contract will have to be enforced.' The principle which renders it improper to mix up, in the same bill, demands against different persons arising out of distinct transactions, renders it improper to include, in one suit, separate infringements of the same patent, by different defendants;!* and for the same reason, whore a copyright has been infringed, bills must be filed against eneh bookseller taking spurious copies for sale. » And so, joint and separate demands cannot be united in the same bill;* and although the defen- dants may bo liable in respect of every one of the demands made by the bill, yet they may be of so dissimilar a character as to render it improper to include them all in one suit. The objection, in these cases, is more strictly called misjoinder, and has been before alluded to in the quotation from Lord Cottenham's judgment in Campbell v. Mackay ; where his Lordship observes, that the distinction between misjoinder and multifariousness is clearly exhibited in the case of Ward v. The Duke of Northumberland.^ "In that case," said his Lordship, " the plaintifl had been tenant of a colliery under the preceding Duke of Northumber- land, and continued also to be tenant under his son and successor, the then Duke ; and he filed a bill against the then Duke and Lord Bever- ley, who were the executors of their father, seeking relief against them in respeci of transactions, part of which took place in the lifetime of the former Duke, and part between the plaintiff and the then Duke after his father's decease. To this bill the defendants put in separate demurrers, and the forms of the two demurrers, which were very different, clearly illustrate the distinction above adverted to. The Duke could not say there was any portion of the bill with which he was not necessarily connected ; because he was interested in one part of it as owner of the mine, in the other as representing his father. But his defence was, that it was improper to join in one record a case against him as representative of his father, and a case against him arising out » Mole V. Smith, Jac. 494 ; Jftwwi v. FrankHn, 1 Y. & C. C. C. 23», 241 ; see also Whaley v. Dateton, 2 Sch. & Lef. 867, and ante. 3 The plaintiff should not, however, flic an unnecessary number of bills ; if he does, the Coart nil! consolidate the suits, or make some equivalent order ; see FoanoM v. Web$Urt 10 Jur. N. 8. VR\ 13 W. R. 186, L. C. ; 2 Dr. & Sm. 2S0; Jur. N. S. 1189. » />i«y V. Arts', 2 Ves. J. 486. « Harrison v. IIogg,ib,SiS,Si8; as to suing co-executors, separately liable, forcontributiou, m« Singleton v. Mwifn, 9 Jur. N. 8. 1149 ; 13 W. R. 98, V.C. W. ; Micklethwait v. Wintlanlfy, I!l W.R.210, L.JJ. 3 Anst. 46!), 476. MATTER OP TIIll BILL. mi ot'transactioiiH in whiehjie waw jterwonally concerned. The form of hiH demurrer was, that there was an niproper joinder of the subject-matters of the suit. Lonl Beverley's t'emurrer again was totally different; it was in the UHual form of a demurrer for multifariousness, and proceeded on the ground that, by including transactions which occurred iHJtween the plaintiff and the other defendant with transactions between the plaintiff and the late Duke (with the latter of which only Lord Boverle}' could have any concern), the bill was drawn to an unnecessary length, and the dem irring party exposed to improper and uselosH expense. Both demurrers were allowed, andjboth, it may bo said in a sense, for multifariousness ; but it is obvious that the real objection was very different in the two cases. In Harrison v. Jfogg, ' which was also more properly a case of misjoinder, the plaintiffs endeavoured to unite in one record a demand in Avhich all the plaintiffs jointly had an interest, with a demand in which only cme of them had an interest ; and the demurrer was allowed upon the Efround that the subject-matters were such as, in the opinion of the Court, ought not, according to the rules of pleading, to be included in one suit. In Sojctm v. Davies,' the suit prayed an account against the representatives of a bankrupt's assignees and against Davis, a person who claimed through those assignees, and also against a person who had been his assignee under the Insolvent Debtor's Act; and there also the bill was held to bo bad for multi- fariousness." =» It is to be observed, that this objection will only apply whore tt plaintiff claims several matters of different natures by the same bill ; and that where one general right only is claimed by the bill, though the defendants have separate and distinct interests, a demurrer will not hold.* As where a person, claiming a general right to the solo fishery of a river, files a bill against a number of persons claiming several] rights in ^the fishery, as lords of manors, occupiers of lands or otherwise;* so, in a bill for duties, the city of London was permitted to bring several of the persons before the Court, who dealt in those things whereofthe duty was claimed, to establish the plaintiff's right to it;" and where the lord of a manor filed a bill against more than thirty tenants of the manor, freeholders, copyholders, and leaseholders, who owed rents to the lord, but had confused the boundaries of their several tenements, praying a commission to ascertain the boundaries, and it I I * • 2 Vm. J. 383, 898. " i8Ve». 72, 80. ' 1 M. & C. 819. * Ld. Red. 182. ' Mayor (tf York v. Pilklnglm, 1 Atk. 288, cllod Ld. Red. 188. * dity of London v. IWking, 3 Bro, P. C ed. Toml. 608. 282 THE BILL. was objoctecl, at tlie hoaring, that the suit was improper, as it brought before the Court many parties having distinct interests, it was answered that the lord claimed one general right, for the assertion of which itwuM necessary to ascertain the several tenements; and a decree was made accordingly. ' Upon the same principle it is, that one suit is entertained for tithes against several parishioners. Suits of this kind, however, must all be for objects of the same nature : and if a bill is filed against several defendants for objects of a different nature, although the plaintift' claims them all in the same character, it will be multifarious; thus, if a parson shoidd prefer a bill against several persons, viz., against some for tithes and against others for glebe, it would be liable to demurrer; and so, if the lord of a manor were to prefer one bill against divers tenants for several distinct matters and causes, such as common, waste, several piscary, &c., this would be wrong : though the foundation of the suit, vis., the manor, be an entire thing.^ It is to be rema ked, that Lord Redesdale appears to confine the meaning of multifariousness to cases where a plaintift' demands several matters of difterent natures of several defendants by the same bill;' but in Attorney-General v. The GoldsmitM Company,* Sir Lancelot Shad- well, V. C, said: "I api^rehend that, besides what Lord Redesdale has laid down upon the subject, there is a rule arising cut of the constant practice of the Court, that it is not competent, where A. is sole plain- tiff, and B. is sole defendant, for A. to unite in his bill against B. all sorts of matters wherein they may be mutually concerned. If such a mode of proceeding were allowed, we should have^. filing a bill against B., praying to foreclose one mortgage, and, in the same bill, praying to redeem another, and asking many other kinds of relief with respect to many other subjects of complaint." In that case, the information against the Company stated, that there was a charity for the benefit of young men, being free of the Company, and then alleged that divers other bequests had been made to the Company for the purpose of mak- ing loans to young men for their advancement in business or life, and prayed that the first-mentioned charity, and all other (if any) likegiA^ and bequests to the Company might be established, and that the duo performance of the charitable trusts might be enforced for the future ; and the Vice-Chancelio^, upon a demun*er being put in to the informa- tion, because it was exhibited for several and distinct matters which ought not to be joined together in one information, held the informa- tion to bo multifarious, and allowed the demun-er. • J/iWdafon Co«. V. i««tf, cUcd Ld. Rod. 183. » Berke v. Harris, Hordre, 837. > Ld. Red. 181. ♦ 6 Sim. 670, 076; and nee Attorn fy-Oeneral v. 77ie Corporation of Carmarthtn, O. Coop. aO| At- tomey-Uentral v. at. Cross HosjHtal, 17 BeiiY. 486. MATTER OP THE HILL. 283 It shoiiltl bo noticed that, in tho above case, there was nothing in the information to show that the cliaracter of the bequest was ?iomogeneous, and that his Honor held, that if there had been any allegation to show that they were of that character, although there might be minute dif- ferences between the bequests, they might all have been comprised in tho Htnnc information.' Thus, in the chho of Attorney-General v. The Merchant Tailors' Company," where tho information prayed the establish- inont or resrulatiftn of a great number of different charitable gifts, which were stated in the information to have been made to the Company, by way of bequest or otherwise, on trust to lend out the same to freemen of tho Company, or upon some other like or corresponding trust, for the benefit or advancement of freemen in trade or business : tho number of charities in respect of which tho relief was sought by the information was eight ; but as they were to be applied inainly and substantially for the same objects, and it appeared upon tho information that, owing to the minuteness of tho sums, each of them could not be administered as the donors pointed out, Sir Lancelot Shadwell, V. C, thought that the Court ought, at the hearing, to deal with them conjointly, and that the information was not multifarious. On appeal, Lord Brougham con- curred with this decision, as to seven of the charities, and gave leave to amend thj bill by adding parties or waiving relief as to the eighth.' From tho above cases it may be deduced, that a plaintiff cannot join in his bill, even against the same defendant, matters of different na- tures, although arising out of the same transaction; yet, when tho mat- ters are Iwmogeneous in their character, the introduv^tion of them into the same bill will not be multifarious: and it is to bo observed, that this distinction Avill not be affected by the circumstance of the plaintif}' claiming the same thing under distinct titles, and :hat the statement of such different titles in the same bill will not render it multifarious. Thus, where a bill was filed for tithes by the r'3ctor of a parish in London, in which tho title was laid under a decree made pursuant to the 37th Hen. VIII. c. 12, by which payment of tithes was decreed in London at tho rate of 2s. 9d in the pound on tht^ rents, with a charge that, in case such decree should not be deemed binding, the plaintiff was entitled to a similai* payment, under a previous decree, made in the year 1535, and confirmed by the same Act ; and in case neither of tho said decrees were binding, the bill charged that the plaintiff was entitled, by ancient usage and custom from time immemorial, to certain ■ See 6 Sim. 676. » 5 Sim. 288. M M. & K. 189, m. ^ L 284 TUB BILL. ducH iiiul oblationH calculated according to runt at 2^. 9d. in the pound: u demurrer for multifariouHiieHH was overruled.' Ah a l>ill l>y the wame plaintitt' against the Hamo defendant for differom matters would Ik) couHiderod multifarious, ho, a /or//or/, would a bill by Heveral plaintifl'H, demanding distinct matters, against the Hamo defen- dants. » Thu.s, if an estate i» sold in lotH to dift'erent purchasers, tlio purchawerH cannot join in exhibiting one bill against the vendor for a specitic performance ; for each party's case would be diHtinct, ana thiri* muHt be a distinct bill upon each contract.' Upon the same principle, where the heir and next of kin of an intestate, who was an infant, was joined with his sister, who was the other next of kin, as plaintift" in u bill against the widow, who had taken out administration to the intes- tate's effects, and had also taken possession of the real estate, as guar dian to the infant heir, for an account both of the real and personal estate, Sir Lancelot Shadwcll, V. C, allowed a domun-er for multifa- riousness, on the ground that the interests in the real and personal estate were distinct from each other.* But it has been decided, that a bill does not become multifarious because all the ]>laintitfs are not inte- rested to an equal extent; as in Knye v. Moorc,'^ where a bill was filed by a woman and her children to compel the delivery up of a deed, by which the defendant had made a provision for the woman (with whom he had cohabited), and her children, and which had been executed in pursuance of an agreement, whereby he was bound, besides the execu tion of the deed, to pay to the woman an annuity for her life, an account of which was also sought by the bill : it was objected, upon demurrer, that the bill was multifarious, because, besides seeking the performance of the agreement under which the mother alone was entitled, it joined to that the claim for the deed, in which she was interested jointly with her children : but Sir John Leech, V. C, thought that, the whole case of the mother being properly the subject of one bill, the suit did not become multifarious because all the plaintiff's were not interested to an equal extent." • ' And so, where several persons claim under one general right, they may file one bill for the establishment of that right, without incurring > Owen V. Mdin, M'Lcl. S38: 13 Prl. 478; and see Boyd v. Moyle, 3 CoU. 310, 333, where a bin to restrain tn o actions relating to the same matter was held not to be mnltiflirlouB ; sec also Datit V. Cfrippe, a Y. & C. C. C. 4.S0, 4W. s Jones V. Garcia del mo, T. A R. 997, 301. * Harqreavet v. Wrtght, 10 Hare, App. B6; and see Hudson v. Madditon, 13 Sim. 416, 418 : G Jnr. IIM, which was the case of a bill by several persons to restrain a nuisance. Sec, however, PoUoek V. Lester, 11 Hare, 266, where it was held that, in a similar case. It was no mlijoinder, and within the provisions of 16 A 16 Vic. c. 86, s. 49. And see our Orders 63, 54, 66. 4 Jhmn V. Z>t/nn, SSim. 339; Jfaud v. AcUom, ib. 831: Exeter Cott«o« v. i7ou>/anHnn, 3 8im, 331. MATTER or THE BILL. 2d5 the riwk ol'a demurivi- for rnullitUi'iuut4noH», althuiigh the titio ot'cjuh pinintift'mny iKMlistiiict ; thuH, in Pourff v. The Emi nf Pouis,^ where the freehold tenants ot'u lonhhip huvin/LC rightH ot'eonnnonover eertuin lands, the lord approved parts oi' the eoninioit lands and granted them to other pornons, htit the tennntM pi-oistrated the fenees, upon which aet ions of trespass were hronght against them, and they tiled a hill in the Court of Kxehe Everett v. Prythergch, 18 Sim. 866, 367 ; B. v. IF., 31 Beav. 342 ; S. C, imn. A. v.B.,8 Jur. N 8. 1141. ' Glib. For. Rom. 207. 3 Fenhoukt v. PassavarU, 3 Vc8. 8. 24. * EarlqfFwtmMuth v. FelUnos, 6 Mad. 460 ; and sec Ation. 1 M. & 0. 78 ; Lord St. John v. Lad'j St. John, 11 VeB. 696, 699 ; Beeves v. Baker, 18 Beav. 486. « WfuUey V. A'orton, 1 Vera. 483 ; Clarke v. Periam, 3 Atk. 383, 337. • Ord XL. 9. Af m wmr MATTER OF THE BILL. 287 From what has been naid bolbrc, il may ho tollcited Ihal, although nothing relevant can be scandalous, matter in a bill may bo impertinent without being scandalous.' Impertinences are described by Lord Chief Baron Gilbert to be, "where the records of the Court are stuffed with long recitals, or with long digressions of matter of fact, which arc altogether unnecessary and totally immaterial to the matter in question : as where a deed is unnecessarily set forth /;i har rrrlxi."^ It is to be observed, that neither scandal nor impeitinence, however gross it may be, is a ground of demurrer: it being a maxim of pleading that utile per inutile non ritiatur.^ Where, however, there is scandal in a bill, the defendant is entitled to have the record purified by expunging the scandalous matter; and it was formerly the same M'ith reference to impertinent matter. In order that this might be done, (he course for- merly was for the defendant to move the Court for an order to have the hill referred to a Master to report whether it was scandalous or impertinent. This reference was obtained of course, and being general, without specifying the particular passages objected to,* obviously pre- oliuled the party, whose pleading wa:* alleged to bo scandalous ang made, declare that any pleading, petition or affida- vit, is improper or of unnecessary length ; or may direct the taxing mas>- ter to distinguish what part thereof is improj)er, or of unnecessary length. « ' Fenl^oulel v. Pasmvant, 2 Vcs. S. 24. ' Glib. Wor. Rom. 209: and see Norway v. Bowe, 1 Mer. l:J5; Lowe v. Williams, 2 S. & 8. 674; Bauy V. Williamx, 1 M'L. & Y. 3;W; Slack v. Ecans, 7 Pri. 278, n. ; Gompertc v. Best, 1 Y. & C. Ex. 114, 117; Hyde v. Masterman, O. As P. 266, 271 : 6 Jur. 648: Attorney- General v. Rick- arrf*, 6 Bcav. 444, ^1!» : 1 PhU. 383,386: 7 Jur. 362; H.C.mm. Rickards v. Attorney- General, 12 CI. & F. 30 : 9 Jur. 38JJ ; Al^rey v. AHfrey, 14 Beav. 235 : 16 Jur. 881. ' Sec Broom's Maxims, 602. , < Harr. by Newl. 43 : 1 T. & V. 519. » 38th Ord. May, 1845 ; Sami. Ord. 998: afterwords Uie 2.3rd Ord. Nov., ]&50, was substituted: 12 Beav. xxvil. • 15 & 16 Vic. c. 86, 8. 17. SceZ>;{/oi/r v. ,9iV/W/,4DeG. M. &G. 520, 620. Onr Order 71. ' Ord. XL. 11. Our Order 71 is similar. " Ord XL. 9. As to tliis Ord. gee Moore v. Smith, 14 Beav. .396 ; Mayor qf Bericlck v. Murray, 7 De 6. M. A 6. 497 : 3 Jur. N. 8. 1,5; and for form of Order tliercunder, see Seton 89, No. 17. Oar Order 71 is similar. S 288 THE BILL. By No. 6 of our Con. G. Ordei-M, exeoptions to bills, answers, or other proceedings for scandal or impertinoncc^^are abolifshed. By Order «)!), it is provided that, "If ui^on the hearing of a cause or matter, the Court is of opinion, that any pleading, petition, or affidavit, or any pari ot such pleading, petition, or affidavit, is scandalous, the Court may order such jileading, petition, or affidavit, to be taken off the file, or may direct the scandalous matter to be expunged, and is to give siuli direction as to costs as it may think right." Order 70, declares iliat "A motion to have any pleading, i>etition, or affidavit taken otV ilu file for scandal, or to have the scandalous matter L-xpimgcd, may he made at any time before the hearing of the cause or matter." And Order 71, provides that, " If upon the hearing of a cause or matter the Court is of opinion that any pleading, petition, or affidavit, is of unnecessary length, the Court may either direct payment of a sum in gross or in lieu of taxed costs therefor, or it may direct the taxing officer to look into such pleading, petition or affidavit, and to distinguish what part or parts thereof is or are of unnecessary length, and to ascertain the costs, occasioned to any party by an^- unnecessary matter: and the Court is to make such order as it thinks just, for the payment, set-off, or other allowance of such costs, by the party or his solicitor. It appears to have been formerly the opinion that, in cases of scandal, "the Court itself was concerned to keep its records clean, and without dirt or scandal appearing thereon;"' and in Ex jiarte Simjyson,^ Loi-d Eldon said that, with reference to the subject of scandal in proceedings either in causes or in bankruptcy, he did not think that any application by any person was necessary : and that the Court ought to take tare that, either in a suit or in a proceeding in bankruptcy, allegations bearing cruelly upon the moral character of individuals, and not rele- vant to the subject, should not be put upon the record. As this is the first occasion upon which it has been necessary to refer to the time allowed in procedure, it will be convenient to state here some general rules concerning the manner in which such periods are to bo computed. « - ■' Order 406, of our Con. G. Orders, provides that, " Where any time, limited from or after any date or event, is appointed or allowed for doing an act, or taking a proceeding, the computation of such time is not to include the day of such date, or of the happening of such event, but is to commence at the beginning of the next followingd ay ; and the > 2 p. Wme. 818, Arff. 3 15 Ves. 476, 4T7. At to Bcandtl in a proceeding iindcr the suipmary Jurisdictiou, eeo Se (fornaU IBeftT.SM. FORM rtF THE BILL. 289 act or proceeding i» to be done or taken at the latest on the last day of Kuch limited time, accordinij to Hueh computation." Order 407, that "Vi^here the time for doing an act, or taking a jirocoeding expires on a Sunday, or other day on which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, huch act or proceeding is, so far as regards the time of doing or taking the same, to bo hold to be duly done or taken, if done or taken on the (lay on which the offices shall next open." Our or '.or 412, directs that ''The power of the Cjurt, and of a Judge in Chambers, to enlarge or abridge the time fordoing an act, or taking a proceeding in any cause or matter, upon such (if any) terms a.s the facts of the case may require, or to give any special directions as to the course of proceeding ill any cause or matter, is unaffected by these orders." By order 7, it is declared, that the word " month " means calendar month ; but by a declarator}' order of 17th October, 1868, the word " month " used in Order 88, and 120, is to be read as "lunar " month. As a general rule, the costs occasioned by scandalous matter, and of the application to have it expunged, follow the decision ; but they should he asked for when the application is heard.' Section V. — The Form of the Bill, Having thus endeavoured to point out the matter of which a bill in Equity ought to consist, it remains to direct the reader's attention to the form. The form of an original bill commonly used, previously to the late Act, according to the analysis of Lord Redesdale,3 consisted of nine parts: some of which, however, were i-ot essential, i,nd might be used or not, at the discretion of the person who ])repared it.^ These nine parts were as follows : — I. The address to the person or persons holdir.g the Great Seal. * II. The names and addresses of the parties complainant. III. The statement of the plaintiffs case, commonly called the stating part. IV. The charge that tho defendant unlawfully confederated with others to deprive tho plaintiff of his right. H -r ' Mimoll V. Hal/Ud, 4 Bro. C. C. 333 ; Joddrelt v. Joddrell, 18 Beav. 216. ^ Ld. Red. 42. ' Ld. Red. 47. 18 a90 THE BILL. y. The allegation that the defehdantH iutend to set up a particular sort of'dcfoneo, the reply to which the plaintiff anticipates by alleging certain facts which will defeat such defence. This was usually termed the charging part, from the circumstance that the plaintiffs allegations were usually introduced by way of charge, instead of statement. VI. The statement that the plaintiff has no remedy without the assistance of a Court of Equity : which was termed the averment of jurisdiction. VII. The interrogating part, in which the stating and charging pari were converted into interrogatories, for the purpose of eliciting from the defendant a circumstantial discovery, upon oath, of the truth or falsehood of the matters stated and charged. VIII. The jyr ay er for relief, adapted to the circumstances of the case. IX. The 2>rayer that process might issue, requiring the defendant to appear and answer the bill : to which sometimes was added a prayer for a provisional writ, such as an injunction or a ne exeat regno, for tbc purpose of restraining some proceedings on the part of the defendant, or of preventing his going out of the jurisdiction till he had answered the bill. And as against some of the defendants, this part sometimes contained a prayer that such parties might, upon being served with a copy of the bill, be bound by all the proceedings in the cause. The form of a bill has, however, been materially altered by the Chancery Amendment Act of 1862, by which, as we have seen,' it is enacted that every bill " shal) contain, as concisely as may be, a narra- tive of the material facts, matters, and circumstances, on which the plaintiff relies : such narrative being divided into paragraphs, numbered consecutively : and each paragraph containing, as nearly as may be, a separate and distinct statement or allegation ; and shall pray spcciti- cally for the relief which the plaintiff may conceive himself entitled to, and also for general relief."^ A bill, as ordinarily framed, may now be said to consist of the first, second, third, and eighth parts above enumerated only ; the charging part is indeed, still occasionally inserted, but it is rather as part of the narrative than as a separate part, and the allegations are, by most draftsmen, introduced as statements, and not by way of charge ; so that, practically, this part may now bo considered as included in the stating part. ' The averment of jurisdiction is also still sometimes inserted, but it may also, when inserted, be considered as a portion of the stating » Ante, 16 & 10 Vic. c. 80, B. 10. The present form ofbill appears tot)e a return to the moreancient form. See Partridge v. Ilaycraft^ 11 Ves. 674. » See MmiM v. Ftenty, 3 J. & H. 813, 818. FORM OF THE BILL. 391 part. Tho fourth part, or charge Of conl'edvracy, gra'diially became dis- uiK>ortion of tho eighth part. Our Order 74 provides that ** A bill of complaint is to be in the form of a petition addressed ' To tho Honouniblo the Judges of the Court of Chancery.' It must contain ••I. Tho name and description of each party complainant. "11. The name of each party defendant. •'III. The name of tho place at which witnesf-es are intended to be examined. •' IV. A statement of the plaintiff's case in clear and concise language. • Y. A praj'er for the specific relief to which the plaintiff supposes himself entitled ; but the prayer for general relief may be added." Order 75 declares that " In the cases enumerated in Schedule B., herennder written, the bill of complaint may be in the form, or to tho oHt'ct set forth in that schedule as applicable to the particular case: and, in cases not enumerated in that schedule, forms of pleading similar in principle may be adopted whenevei* a more detailed state- ment is not necessary for the full dovelopemont of the case." And by Oi*der 70, " A bill of complaint is not to contain any interrogatories : all merely formal facts, except the mldress and conclusion, are to be omitted; and the signature of Counsel is unnecessar}'." The absence of .1 venue in tho margin of a bill is not a cause of demurrer: nor is a •lescription of the premises which omits the Townshiji or County. It sems, that no venue being stated in the margin of the bill is an irregu- larity, and may be taken advantage of by motion to comj)eI the inser- tion of a venue. =• The attention of the reader will, therefore, be confined to tho four parts above enumerated, as tho distinct parts of which a bill now con- sists. ' 15 & 18 vie. c. 86. B. 10, and by our Order 76. nbia».3. Oar Older 6. % ' Duncan v. Oeary, 10 Grant 81. 292 THE BiLTi. 1. Address of the Bill. Every bill must, by the English practice, be addressed to the person or persons who have the actual custody of the Great Seal at the time of its being filed : unless the seals are in the Queen's own hand, in which case the bill must be addressed " To the Queen's Most Excellent Majesty in her High Court of Chancery.'' ' , If the Lord Chancellor or Lord Keeper himself be a party, the bill must, in like manner, bo addressed to the Queen ;» but in all other case!<, including a case where the Master of the Rolls is a party,' the bill must be directed to the Lord Chancellor, or other person having the custody of the Great Seal. Upon every change in the custody of the Great Seal, or alteration in the style of the person holding it, notice of the form in which bills are to be addressed is put up in the Record and Writ Clerk's office. In this Province the Bill is addressed " To the Honourable the Judges of the Court of Chancery." 2. Mimes and Addresses of the P lintiffs. ^ It is not only necessary that the names of the several complainant!* in a bill should be correctly stated, but the description and place of abode of each plaintiff must be set out, in order that the Court and the defendants may know where to resort to compel obedience to any order or process of the Court, and particularly for the payment of any costs which may be awarded against the plaintiffs, or to punish any improper conduct in the course of the suit.* It seems that a demurrer will lie to u bill which does not state the place of abode of the plaintiff; and that if the bill describes the plain- tiflf as residing at a wrong place, the fact may be taken advantage of by plea ; though a defendant cannot put in such a plea, after a demurrer, upon the same ground, has been overruled, without I -"e of the Court.' « 2 West Syinb. 104, b. » 4 Vin. Ab. 385; Lea. Jutl. in Ch. 44, 258: Jud. Auth. M. R. 179, ?.f'2: '. iied. 7: Ooop. Eq. P! 23. Braithwaite^B Pr. 20. In 1 Prax. Aim. 40.3, i8 a precedent of .-> by Lord ChanceUo; Jef- ferieo, addressed to the King's Most Excellent Majesty, and prtij hiis Majesty to grint the usual process of Subpanaj and in Vol. IL of the same book, 810, is to be found an Kuawer to the same bill. The final decree in such cases is, *' By the Queen's Mot't Excellent /Mettn, M her High Court qf Chancery,"' and is signed by her : Leg. Jud. in Ch. 854, 266. In Lord Keeper V. W-yW. 1 Vern. 189, where Lord Keeper Guildford and others were plaintiffs, the Master of the Jtolls and one of the Chief Justices sat to decide the cause : Coop. Eq. PI. S8. 9 See Leg. Jud. in Ch. 44, where it is stated that in the bundle of Chancery parchmentt in the Tower, there is a bill by Moreton, Keeper of the Rolls, directed to the Right Rer. Father in Ood, Robert, Bishop of Bath and Wells: Coop. Eq. PI. 23, n. (p). * Ld. Red. 42. And see, as to what is a snfflcient description, Oriffith v. Rickettt^ 5 Hare, 196; Sibbering v. Earl qf Balcarrae, 1 De G. & B. 688: 12 Jur. 106. • RowUy V. Ecdee. 1 8. & 8. 611 : Smith v. Smiths Kay, App. 22. In Bainbrigge v. Orton, 20 Beav, 28, however, 8lr John RomiUy, M. R., appears to have doubted whether such a plea can be maintained ; and if such a plea is bad, so, ft is apprehended, would a demurrer be, where no ad- dress is stated. It is to be observed that, in Rowley v. EceUe, the demurrer was overruled, and in Smith V. Smith the plea disallowed. See, however, sobering v. Earl cf Bakarrat, uM W' The reader will bear in mind that " pleas " being abolished in onr Conrt, and " answers " aah- stituted, the Enclish cases reArring to a " plea '*^wlll apply here by reading " answer" where the word " plea " is used. FORM OF THE BILL. 293 The modern practice, however, in such cases, is not to demur, or plead to the bill, but to apply by special motion,' on notice to the plain- tiff, that he may give security for costs, and that in the meantime pro- ceedings in the suit may be stayed." Thus, in Simpson v. Burton,'^ Lord Langdale, M. B., said : " There can be no doubt, that it is the duty of a plaintiff to state his place of residence, truly and accurately at the time he files his bill ; and if, for the purpose of avoiding all access to him, he wilfully misrepresents his residence, he will be ordered to give security for costs. I do not think the rule extends to a case where he has done so innocently, and from mere error."* It is to be observed, that, in this case, all the plaintiffs wore incorrectly described in the bill; but there does not appear to be any decision upon the point, where there have been several plaintiffs, one or more of whom are cor- rectly described, and the rest not so. It is presumed, however, from analogy to the practice where there are several plaintiffs, one only of whom is resident abroad,* that the Court would not, in such case, require those plaintiffs who are not properly described to give security. Where a bill is filed on behalf of an infant, or person of unsound mind not so found, it is not necessary or usual to describe the plaintiff by his place of abode;" because an infant or person of unsound mind is not responsible either for costs or for the conduct of the suit ; the description and place of abode of the next friend must, however, be set out. In the case of a married woman suing by her next friend, it is usual, but not essential, to set out the address of the married w^oman, but the address of the next friend must be stated ; ' and where a mar- ried woman sues as a feme sole, that fact must be stated in this part of the bill. The address of a peer of the realm or of a corporate body, suing as plaintiff, need not be stated in the bill." A plaintiff in a cross bill is not required to give security for costs on the ground of insufficient description of residence." The defendant should apply that the plaintiff may give security for ' Ti/nte V. Ilodge, 2 J. & H. 092. ' Sandyi t. Long, 2 M. & K. 487; see also Bailey v. Oundry, 1 Keen, 63; Campbell v. Andrews, 12 Sim. 678 ; Bainbrigge v. Orion, 20 Beav. 28. » 1 Beav. 666. * See also Watts v. KeUy, 6 W. R. 206, V. C. W. ; Smith v. Cornfoot, 1 De G. & S. 684 ; 12 Jur. 260; Griffith v. Bicketts, 6 Hare, 196 ; Piayer v. Anderson, IS 81m. 104; Hanby v. Bewicke, 8 De G. M. & G. 468 : 2 Jnr. N. 8. 671 ; Ktrr v. OiUespie, 7 Beav. 269 ; Knight v. Cory, 9 Jur. N.8 491: UW. B.264,V. C. W. ' Steante. * Bralthwaite's Pr. 26. ' Braithwalte^sPr. 91,S6. If the next Mend of a plaintiff be undescrlbed in the bill, he may, on special application by motion, be ordered to give security for costs ; see Kerr t. OiUuDte, viiiWatUy.Keay.vHtup. • Bnlthwaite's Pr. 2S. • WM V. Murray, 18 Jnr. 898, V. C. W. ; see also l^neent v. Hunter, 6 Hare, 320 ; Watleeu v. Bil- (am, 8 De O. * S. 610 : \i Jar. 166 ; koggtU v. Vlant, 18 Sim. 187. I . 294 THE BILL costs as soon as he becomes aware of the fact that the plaintift's address is incorrectly stated in the bill ; and if the defendant takes any active steps in the cause after ho becomes so awai'c, and lK»foro applying, It will be a waiver of h' right to security.' Where a plaintitt' sues as executor or administrator, it is not neceH- sary so to describe himself in this part of the bill : though, as we have seen before, it is necessary that it should appear in the stating part that ho has duly proved the will or obtained atlministration, as the case may be.a Where a plaintiff sues (m behalf of himself and of others of a similar class, it should be so stated in this j>art of the bill ; and the omission of such a statement will, in many cases, render a bill liable to objection for want of parties, 3 and in other cases will deprive the plaintiff of his right to the whole of the relief which he seeks to obtain. Thus, in the case of a single-bond creditor suing for satisfaction of his debt out of the personal and real estate of his debtor, and not stating thathe sues "on behalf of himself and the other specialty creditors," he can only have a decree for satisfaction out of the personal estate in a due course of administration, and not for satisfaction out of the real estate, < 3. Statbm Part. With respect to the manner in Avhich the plaintiff's case should be presented to the Court, it is to be observed, that whatever is essential to the rights of the plaintiff, and is necessarily within his knowledge, ought to be alleged positively:* and it has been determined, upon demurrer, that it is not a sufficient averment of a fact, in a bill, to state that a plaintiff "is so informed ;"» or to say that one defendant alleges, and the plaintiff believes, a statement to be true :'^ nor is an alle- gation, that the defendant sets up certain pretences, followed by a charge that the contrary of such pretences is the truth, a sufficient allegation or averment of the facts which make up the counter state- ment. » The claims of a defendant may be stated in general terms, and if a • Swanzy v. Swamy^ 4 K. «fc J. 237 : 4 Jur. N. S. 1013. « Ante. » AtUe. • Be^ord v. Leigh, 2 Dick. 2-37 : May v. Selby, 1 T. & C. C. C. 285 ; CmnoUv v. M'Dermott, 8 Jo. & Lat. 260 ; Pomford v. Hartley, 2 J. & H. 736; Johnson v. Oompton, 4 Sim. 47. If, however, a defect of this oeacrlptlon appear at the hearing, the Conrt will allow the case to stand over, with liberty to the plaintiflf to amend, ibid.; Bitcoe v. Waring, Bolls, 7 Aug. 1836, MS. » Ld. Red. 41 ; Darthez v. Clemens, 6 Beav. 165, 169 ; Munday v. Knight , 3 Hare. 497, 809 ; Pad- wick V. Hurst, 18 Beav. 675 : 18 Jur. 763 ; Bainbrigge v. Moss, 8 Jur. N. S. S8, V. C. W. • LordUxbridge v. Staveland, 1 Ves. 8. 66. » EgremmU v. Co^oell, 5 Beav. 690, 623 ; Hodgson v. Espinasse. 10 Beav. 473. • Flint v. Field, 2 Anst. 643 ; Hmtghton v. Reynolds, % Hare, S67 : 7 Jnr. 414. I'M K'WW"- FORM OF THK BILL. 295 matter essential to the determination of the plaintiffs claim is charged to rest within the knowledge of a defendant, or must of necessity be within his knowledge, and is consequently the subject of a part of the discovery sought, a precise allegation is not required.' In general, Irowever, a plaintiff must state upon his bill a case upon which, if admitted by the answer, or proved at the hearing, the Court could make a decree; and, therefore, where a bill was filed to restrain a defendant from setting up outstanding terms, in bar of the plaintiffs right at law ; not stating that tlicre were any outr^tarding terms or estates, but merely alleging that the defendant threatened to set up Home outstanding term, or other legal estate, Sir Lancelot Shadwell, V. C, allowed a demurrer, on the ground that the bill ought to have stated what the outstanding term or estate was.* Although the rules of pleading in Courts of Equity, especially in the case of bills, are not so strict as those adopted in Courts of Law, yet, in framing pleadings in Equity, the draftsman will do well to adhere as closely as !.e can to the general rules laid down in the books which treat of Common Law pleadings, whenever such rules are applicable to the case which he is called upon to present to the Court; for there can be no doubt, that the stated forms of description and allegation which are adopted in pleadings at Law have all been duly debated under every possible consideration, and settled upon solemn deliberation, and that, having been established by long usage, experience has shown them to be preferable to all others for conveying distinct and clear notions of the subject to be submitted to the Court ; and if this be so at Law, there appears to be no reason why they should not be considered as equally applicable to pleadings in Courts of Equity, in cases where the object of the pleader is to convey the same meaning as that affixed to the same terms in the ordinary Courts. Thus, as at Law, if a man intends to allege a title in himself to the inheritance or freehold of lands or tenements in possession, ho ought regularly to say that he is seised; or, if he allege possession of a term of years, or other chattel real, that he 18 possessed ;^ if he allege seisin of things manurable, as of lands, tene- ments, rents, &c., he should say that he was seised in his demesne as of fee; and if of things not manurable, as of an advowson, he should allege that he is seised as of fee and right, omitting the words in his demesne.,* so that there seems to be no reason why the same forms of expression should not be equally proper in stating the same estates in Equity. It is, > Ld. Bed. 43. * StanOttry v. ArkwrigM, 6 Sim. 481, 486 ; see also Jones v. Jones, 3 Mer. 161, 176 ; Barber v. Bmter, cited ib. HO, ITS; Frietas v. DosSandot, 1 Y. & J. 6T4. *, Stephen on Fl. 888, S4S ; Whltworth Bq. Free. 163, n., et seq- '■ '-' I A m: 29G THE BILL. iiuioed, the general practice in all well-drawii pleadings, to insert them, although they are frequently accompanied with other words, which are HometimeH added by way of enlarging their meaning, and of extending them to other than mere legal cHtatOH. ^ Thus, in stating a seisin in fee, the words "or othencise well entitled to," are frequently added : although it would seem that, in some cases, the addition of these words would bo incorrect, and might render the allegation too uncertain.' In recommending the use, in pleadings in Equity, of such technical expressions as have been adopted in pleadings at Common Law, it Ih not intended to suggest that, in Equity, the use of any particular form of words is absolutely necessary, or that the same thing may not be expressed in any terms which the draftsman may select as proper to convey his meaning, provided they are adequate for that purpose. All that is contended for is, that notwithstanding the looseness with which pleadings in Courts of Equity may, consistently with the principles of those Courts, be worded, yet, where it v\ intended to express things for which adequate legal or technical expressions have been adopted in pleadings at Law, the use of such expressions will be desirable, as best conducing to brevity and clearness. Assuming, therefore, that even in pleadings in Equity the same form of words as are used in pleadings at Law may generally be introduced with advantage, the reader's atten- tion will here bo directed to some of the rules adopted in legal plead- ings, which may with good eft'ect be adopted in Equity. Thus, it is a rule in pleading, at Common Law, that the nature of a conveyance or alienation should be stated according to its legal effect, rather than its form of words." It may bo observed, however, that although it is desirable, in stating instruments, that this rule should be adhered to, and that the substance only of such instruments, as are necessary to be set out should be stated, without repeating them in hcec verba, yet cases may arise in which it is convenient to state written documents in their very words. This occurs, .whenever any question in the cause is likely to turn upon the precise words of the instrument, as in the case of bills filed for the establishment of a particular construction of a will which is informally or inartificially worded ; in such bills, the words which are the subject ol" the discussion ought to be accurately set out, 'in order more specifi- cally to point the attention of the Court to them. Indeed, wherever informal instruments are insisted on, upon the construction of which any difficulty is likely to arise, as is frequently the case in agreements reduced into writing by persons who have not been proffessionally « Baring v. Nash, 1 V. * B. 661. « Steplien on PI., 987. ■■I FORM OV THE BILL. 297 educated, or which are insisted on as resulting fVom a written corres- pondence : in all such cases, the written instruments relied on, or at least the material parts of them, should be set out in hcec verba. So also, in bills filed for the purpose of carrying into effect written articles, upon the construction of which, although they are formally drawn, questions are likely to arise, such articles or so much of them as are likely to give rise to questions, should be accurately stated. In many cases also, the expressions of an instrument or writing are such that any attempt to state their substnnce, without introducing the verj' words in which they are expressed, would be ineffectual : in such cases, also, it is best that they shouM be set forth; and where a deed or agree- ment, or other instrument reli 3d upon by the plaintiff has been lost or mislaid, and is not forthcoming, it may be useful, if it can be done, to set out the contents of the instrument at length, in order to obtain an admission of the contents from the defendant in his answer. With reference to the subject of stating written instruments, it may be observed, that it is a rule in pleading at Law, that where the nature of a conveyance is such that it would, at Common Law, be valid without deed or writing, there no deed or writing need be averred, though such document may in fact exist ; but where the nature of the conveyance requires, at Common Law, a deed or other written instrument, such instrument must be alleged.' The same rule has, it would seem, been adopted with respect to pleadings in Equity ; thus, in stating a convey- ance by bargain and sale, it is not essential to state that it was enrolled : for though such a process is rendered necessary by statute, it was not 80 at Common Law.' In a bill for specific performance of an agreement relating to land, it is, however, necessary to allege that the agreement is in writing ; ' otherwise, the bill will be demurrable ; but it is not necessary to allege that it has been signed ;* because, from the statement that it is in writ- ing, it is necessarily to be inferred that it has been signed.' It may be noticed, in this place, that where an agreement relied upon in a bill is to be collected from the letters between the parties, the letters may be stated in the bill, either as constituting the alleged agreement, or as evidence of an alleged parol agreement. In the first case, the ■ Stephen on PI. 988, 387, S88. ' »ee Barrimn v. Hong, * Vw- J- 8S7. ' ymtehweh T. BevU, S Bro. C. C. 660, 668; Bedding v. WUk$, 8 Bro. C. C. 400 ; Barkwwth v. Toung, 4 Drew 1 : 8 Jur. N. S. 84 ; Wood v. Midgelev, 6 De G. M. A; O. 41. A trait need not be alleged to be in writing, but it ia sufficient if the trait is proved by writing at the hearing, «ee Dttviet v. Otiy, 10 JutTN. S. 606 : IS W. R. 68S, M. B. ; ib. 806, L. JJ. : and eee Fortter v. Hale, 8 Yes. 606 ; JRatuMl T. Morgan, IS Yee. 74, and comp. the 4th and 7tb secti. of Stat, ol Fraudi. * Ritt T. Eobton, 1 S. & S. 548 ; Barkworth v. Toung, 4 Drew 1 ; 3 Jar. N. S. M. * Boirkmrth v. Timng, uM typ. < i'i J! 298 tnS BILL. defendant may inHiat that thoy do notmakuuut a concluded ugi'oomunt and that no intrinnie ovidonco can bo rueeived; in the latter, ho may plead the Statulo of Fraudti. ' It in u|M)n the principle above referred to, that although Htuinping \h, by Hundry Acts of Parliament, rendered neccHsary to the validity of u variety of instrumonts, it Im not necosHary, nor iH it oven iiHual, in ploixl ings, to aver that Huch inHtrnmentH have been duly Htamped. It is to be observed also, that the rule of pleading above refoiTod to applies onl}' to cases in which the necessity for a conveyance or agiw- nicnt being in writing, is superadded by statute to things which nt Common Law might have been by parol ; but whore a thing is originully creatod by Act of Parliament, and required to Ihj in writing, it must then bo stated, with all the circumstiUiceB required by the Act. Thus, it was necessary to allego that a deviso of lands (which at Common Luw is not valid, and was first authorized by the statutes 32 Hen. VIII. c. I, and 34 Hon. VIII. c. 5,) had boon made in writing, which is the only form in which those statutes authorize it to be raado.^ It seems, however, that it is sufficient, under the present Wills Act,' to allego, that a will has boon duly made, or duly made in writing: and that it is not necessary to allego the signature and attestation, as required by the Act.* • It has boon befoi*o stated, that it is a rule in pleading, that whenever at Common Law a written instrument was not necessary to complete a conveyance, it is not necessary in pleading to aver it, although such an instrument has been rendered necessary by statute, and has been executed. The converse of this is also a rule, so that, whenever a deed in Avriting is necessary by Common Law, it must be shown in pleading; therefore, if a conveyance by way of grant be pleaded, a deed must be alleged; because matters thrt " lie in grant," according to the legal phrase, can pass by deed only.* Thus, in Menning v. Willis,^ where the plaintiff filed a bill for tithes, and sot up by way of title a parol demise by the impropriator for one year, the defendant demurred for want of title in the plaintiff, and the plaintiff submitted to the demurrer. Upon the same ground, in Jackson v. Benson,'' where the bill prayed an account of tithes, and merely stated that the impropriate rector demised the tithes to him, a demurrer, put in by the defendant, was considered to » Biree t. BMchUy, 6 Mad. 17 : Skinner v. BPDouall, 3 Do G. & S. 966 ; 19 Jur. 741 ; Bugd. V. & ? 149; Dart, Y. « P. 640. * Stephen on Fl. S39. » 7 WiU. IV. andl Vic. c. M. * H^ T. Eiwardt, ISBeav. 100 ; 13 Jar. 767. * Stephen on PI. S39. « 8 Wood, 29 :SE. AT. 188. » M'Cel.W; 18Pri.l81. FORM OP TlIK tltl.r.. 299 lio well fouiulod : uiul in WiUiamnv.Jones,* tliu hruhi ubji'ctioii was taken lit thu hearing, and would havo provailod, had it not a])[)carcMl that tho inipropriatorM ha4l originally hcun mmie ptirtiuN to tho Huit, but had boon diKinisHcd in conNoquoncoot' thoir having dirtclnimod all intoroHt in the titlu'H in question." It may Im noticed here that, in Ntating deeds oi* other written instru- ments in a hill, it is usual to refer to the instrument itself, in some such wonls as tho foll(»wing, viz.; "as hy the said indenture, when produced, mil apjKor.'' The effect of such a reference is to make the whole document roforrod to part of the record. It is to he observed, that it does not make it evidence ; in order to make a document evidence, it must, if not admitted, be proved in tho usual way ; but the eti'ect of referring to it is to enable tho plaintiff, to rely upon every part of tho instrument, ami to prevent his being precluded fVom availing himself, at tho hear- ing,'' of any ])ortion, either of its recital or operative part, which may not be inserted in the bill, orwhich may be inaccurately sot out. Thus, it Hccms that tho plaintiff may, by his bill, state simply tho date and general purport of any particMlar deed or instrument under which ho claims, and that such statement, provided it is accompanied by a reference to tho deed itself, will bo sufficient. As in Pouncefort v. Lord Lincoln,* whoi'o tho plaintiff's claims wore founded on a variety of deeds, wills, and other instruments ; but to avoid expense, or for some other purpose, the dates and general purport only of such instruments wore stated in tho bill, with referoneo to thorn. This manner of stating tho ease does not appear to have boon considered as a ground of objection to tho bill ; but when tho cause was brought to a hearing, Sir Thomas Clarke, M. R., refeiTed it to tho Master to state tho rights claimed by tho plaintiff under tho several instruments mentioned in tho bill, and reserved costs and further directions until after the report, and tho cause was after- wards heard, and a decree made, on tho report, which stated tho instru- ments. It is obvious that tho method of stating the plaintiff's title adopted in tho above-mentioned case, was one of great inconvenience ; and although it has been referred to here, it is by no means from a wish to recommend its adoption as a precedent. It is always necessary, in drawing bills, to state the case of the plaintiff clearly, though Huccinctly, upon the record ; and in doing this, care should be taken to set out precisely those deeds which aro relied upon, 2nd those parts of the deeds which are most important to the case. Although the same precision of statement is not required in bills in ' Yonnge, 262. ' Tounge, 266 ; and see ante. ' Bat on the argmnent of a demnrrer, he cannot avaU himself of the portion not set ont : Harmer T. Gooding, 8 De G. « S. 407, 410 ; Owi4on v. Ttte, 1 Giff. 806 : 4 Jar. N. S. 579. M Dick. 888. •4- 4. 300 THE BILL. Equity as in pleadings at Law, yet it is absolutely necessary that such a convenient degree of certainty should be adopted, as may serve to give tho defendant full information of the case which he is called upon to answer. In Cressett v. Mxtton, ' Lord Thurlow observed, '' special pleading depends upon the good sense of the thing, and so does pleading here ; and though pleadings in this Court run into a great deal of unnecessary verbiage, yet there must be something substantial ;" and in Lord Eedcsdale's Treatise it is said, that the rights of the several parties, the injury complained of, and every other necessary circum- stance, as time, place, manner, or other incidents, ought to be plainly, yet succinctly alleged.^ And, in several cases, demurrers have been allowed to bills on the ground of the vagueness and uncertainty of their statements. ^ Upon tho same principle, a mere allegation that the defendant is a trustee for the plaintiff, not supported by the facts stated, will not prevent a demurrer ; * and so, a statement that a defen- dant claimed an interest as purchaser, under an alleged agreement, but that such agreement, if any, had been long since abandoned and waived, was held insufficient to.prevent a demurrer by that defendant.* How- ever, where in a bill for specific performance of an agreement to take an assignment of a lease, the plaintiff stated a covenant in the lease not to assign without license of the lessor, and did not aver that the plain- tiff had or could obtain such a license ; there being no statement of a proviso for re-entry on default, the Court overruled a demurrer, and, at the hearing, directed a reference to inquire whether the plaintiff could make a good title." With respect to the allegation of time, it is to be observed that, where it is material, it ought to be alleged with such a degree of accuracy, as may prevent any possibility of doubt as to the period intended to be defined. Thus, in prescribing for a modus in a bill, it is necessary that a timu for the payment of it should be mentioned;' and, formerly, it appears to have been considered, that not only the day of payment should be mentioned, but that laying the day of payment on or about a particular day was too uncertain." It has, however, been decided that, in ordinary cases, the laying of an event on or about a > 1 Ves. J. 450 ; 3Bro. C. C. 482. » Ld. Red. 41. » Wormald v. De Lisle, 3 Beav. 18 ; Bovd v. Moyle, 2 Coll. 816. 323 : KeUy v. Sogers, 1 Jur. N. 8. 614, V. C. W. : see aleo Vernon v. Vernon, 2 M. & C. 146. 171 ; Seed v. O'Brian, 7 Beav. 32, 37, 39 ; Darthez v. Clemens, 6 Beav. 163, 169 ; Parker v. Niekson, 4 Glff. SW ; 9 Jur. N. S. 196 ; Affd. Ih. 461 ; 1 De G. J. & S. 177. * Jackson t. The North Waies Rattway Company, 6 Ball. Ca. 112 ; 13 Jur. 69 ; Steedman v. Manh, 2 Jur. N. S. 891, V. C. W. > Hodgson v. Esjdnasse, 10 Beav. 473, 477. • Smith V. Capron, 1 Hare, 185 : 14 Jur. 686, ' Ooddart v. KeOle, Bomb. 106; JRWWiw v. Symes, ib, 171. Blackei v. Finney, ib. 198. FORM OF THE BILL. 301 '! ft 'H-T^yi certain day of a certaia month or year, is a sufficient specification of time. In the'case of Leigh v. Leigh, ' the bill prayed that the defendant might be restrained from set<^ing up a term of 500 ycai-s, in bar of an action of ejectment which the plaintiff had brought against the present jwssessor, and alleged that the plaintiffs title accured on the death of an individual named, which happened on or about the 2nd July, 1806. The defendant demurred, on the grOund that the period alleged in the bill, as the time of the death of the ind'vidual named, was more than twenty years (the period required by the stat. 3 & 4 Will. IV. c. 27, ss, 2 and 24, to bar suits,) before the filing of the bill, which took place in 1834. When the demurrer was first argued. Sir Lancelot Shadwell, V. C, was of opinion, that the words, on or about the 2nd July, 1806, did not fix any precise date, and that it might mean many years before, or many years after that time; and overruled the demuzTcr. Upon appeal, however, the Lords Commissioners,- Pepys and Bosanquet, re rsed the decision: being of opinion, that from the known and acceptef' use of the expression, "on or about," in all the ordinary trans- actions of life, it was sufficiently definite for all the purposes of demurrer, and did satisfactorily set out the fact, that the person named died in the year 1806.a With respect to the certainty required, in setting out the other incidents in the plaintiffs case, the following eases will serv^e to show what degree of it is required under the circumstances to which they refer. In the case of Cresset v. Mitton,^ before alluded to, a bill had been filed to ]Jierpetuate testimony to a right of common and of way, and it stated "tl i the tenants, owners and occupiers of the said lands, raessiiages, tenements and hereditaments, in right thereof, or otherwise have, from time whereof the memory of man is not to the contrary, had, and of right ought to have," &c. To this bill a demurrer was put in : one of the grounds for which was, that it was not stated as to what mess lagcs in particular the rights of common and of way were claimed ; and, in allowing the demurrer. Lord Thurlow said, " you have not stated whether the right of way and common is appurtenant and appendant to the land, that you hold ] and you state it loosely that you have such right as belonging to your estate, or otherwise, so that your bill is to have a commission to try any right of common and way what- ever." The sanje doctrine appears to have been held by Lord Keeper North, in Geiix. Haytvard,* who, upon a bill to perpetuate the testimony ■ Before the Lords Commissioners, Aug. 6 and 8, 1835. ^ See al8o Richards v. Evans, 1 Ves. S. 89 ; Roberts v. WUUams, 13 East, 38. See, as to words " shortly after," Baker v. Wetton, 14 Sim. *26: 9 Jur. 99; and as to words " soon atter," EdtM V. Buchanan, 4 Bro. 0. C. 264. '8Bro.C.C.481; 1 Yes. J. 449. * 1 Vern, 818. f t A , li;,-- , VfK ■ 302 THE BILL. of witnesses touching a right of way, held, that in such a bill the way ought to bo laid exactly per et trans, as in a declaration at Law. And so, in Jtyvesv. Myves,^ where a bill was filed for a discovery of title-deeds, relating to lands in the possession of the defendant, and for the delivery of the possession of such lands to the plaintifl', upon a loose allegation that, under some deeds in the custody of the defendants, the plaintiff was entitled to some interest in some estates in their possession, but without stating what the deeds were, or what the property was to which they applied, a demurrer was allowed. Upon the same principlj, in bills to establish a modus, or other cus- tomary payment, in lieu of tithes, a considerable degree of accuracy is required in setting out the modus; thus, if it is a modus applicable only to a particular jjortion of lands in the parish, as in the case of an ancient farm, the quantity and boundaries of the lands covered by the modus ought to bo stated, in order that the rector may know what the parti- cular lands are in respect of which the exemption is claimed." In this respect there is a great diiference between the mode of stating a modus in a bill and in an answer ; much more precision being required in the former than in the latter, where it is merely set up as a defence : and the Court of Exchequer has carried this distinction so far as to say, that though it was impossible to establish a modus as laid in a cross-bill, in consequence of the want of sufficient accuracy in describing the farms alleged to be covered by it, yet it was a very different consideration whether the modus, as laid in the answer to the original bill, from which the statement in the cross-bill was copied, might not afford such a defence as would prevent the plaintiff from having a decree for an account.' The reason of this distinction appears to be, because a land- holder, who endeavours to establish a modus, is bound to know what his claim is before he brings it into Court, and is therefore tied down to an accui-ate statement of it ; but, in an answer, a tenant is boiuul, within a limited time, to shew whether he has any defence to make or not, and if ho give such u statement as will inform the plaintiff of the general nature of the case to be brought against him, it will be sufficient.* The principle which requires a sufficient degree of certainty in the statement of a bill, has been further illustrated in the case of Stansbury V. Arkwright,' before referred to, where a bill to restrain a defendant ' 3 VeB. 843; we also Lokerv. BoUe, ib. 4, 7; East India Company v. Henchman, 1 Ves. J. S87, 290 ; and see Houghton v. Reynolds, S Hare 364 ; 7 Jnr. 414 ; Munday v. Knight, 3 Hare, 497, and reporter's note, ib. 6C1 ; S. C. 8 Jar. 004. 9 Scott V. AUgood, 8 Gwil. 1860 ; 1 Anst. 16. s Ibid. Atkyns v. Lord mibmghby de Brooke. 8 Gwil. 141J. « Baker v. AthOl, 3 Owil. 14S8 ; S Anet. 491, 493. <>6Bim.481,48St rrr-»"J»*" FORM OF THE BILL. 303 fe from setting up outstanding terms in bar to the plaintiff's claim at Law, was held to be demurrable, on the ground that it did not allege what sort of term or estate was outstanding. The rule which prescribes that a plaintiff cannot sustain a bill, unless he has employed siich a degree of certainty in setting out his case as may enable the defendant to ascertain the precise grounds upon which it is filed, applies to all cases in which a person comes to a Court of Equity for relief upon a general allegation of error, without specifying particulars;' and if a person, seeking to open a settled account, files his bill without such a specification of errors, ho will not be permitted to prove them at the hearing, even though the settlement of the account is expressed to be, ei-rorn excepted : which is the usral form observsd in settling accounts. ^ And it should be noticed, that wlicre a plaintiff files a bill for a general account, and the defendant sets forth a stated one, the plaintiff must amend his bill : because a stated account is prima facie a bar till the particular errors in it are assigned. "* Upon the same gi'ound it has been held, thai t*.i award is a bar to a bill brought for any of the matters intended to be bound by it; and that if a bill is tiled to set aside the awai-d as not being final, the sjiecific objections to it must be Htated upon the bill.* It is to bo remarked, that in most of the cases above cited, the ques- tion has come before the Court upon demurrer, which seems to be the proper way in which a defendant ought to take the objection that a bill is deficient in certainty : if he neglects to do so, it seems that he cannot availhimecif of the objection at the hearing. « As a general rule, conclusions of law need not be averred ; but whei*e certain facts are stated from which it is intended to draw a conclusion of law, the bill ought to be so framed as to give notice to the defendant of the plaintiff's intention to insist on such conclusion : otherwise, he will not be allowed to do so. Thus, in a bill for specific performance of an agreement to sell a leasehold, the plaintiff was not allowed to insist that the defendant had waived his right to inquire into the landlord's title : because, although he had stated in his bill facts from which the waiver might be inferred, he had not alleged the waiver." 4. The Prayer for Belief. The prayer for relief is generally divided into two parts : viz., the prayer for specific relief, and the prayer for general relief. * Taylor v. Haylin, 2 Bro. C. C. 810 : 1 Cox, 486 ; Johnsm v. Curtis, 8 Bro. C. C. S66. '^ Johrwm V. Curtis, ubt sup. ' Dawson v. Dawson, 1 Atk. 1 ; »» to what are settled accounts, see Croft v. Oraham, 9 Jur. N. 8. ^ 1032, v. C. 8. ; 9 L. T. N. 8. 68C, L. JJ. * South V. Peach, 3 Anet. 619. » Cirtw V. Johnston, 8 8ch. A Let. 280. * CUvt T. Btavmmt,! DeG. & S. 807 : 13 Jur. ^26 ; Gatton v. Frankum, 2 Do G. & S.'Kl : 16 Jur. 607. 5^ T i: I h I I « 304 THE BILL. & Although there is no doubt but that a mere prayer for general relief was formerly, in most cases, sufficient to enable the plaintiff to obtain such a decree as his case entitled him to,* yet it was the usual practice to precede the request for relief generally, by a statement of the speci- fic nature of the decree which the plaintiff considered himself entitled to, under the circumstances of his case ; and now, the plaintiff must specifically pray for the relief to which ho may conceive himself entitled, as well as for general relief;' and where he is entitled to no other relief against any defendant, he must pray for costs.' This part of the bill, therefore, should contain an accurate specifica- tion of the matters to be decreed; and, in com^^licatcd cases, the framing of it requires great care and attention : for, although where the prayer does not extend to embrace all the relief to which the plaintiff may at the hearing show a right, the deficient relief may be supplied under the general prayer, yet such relief must be consistent with that specifically prayed, as well as with the case made by the bill : for the Court will not suffer a defendant to be taken by surprise, and permit a plaintiff to neglect and pass over the prayer he has made, and take another decree, even though it be according to the case made by his bill. There- fore, in Soden v. Soden,* where a bill was filed against a woman to compel her to elect between the provision made for her by a will, and that to which she was entitled under a settlement, and the case made by the bill was solely calculated to call upon her to elect, Lord Eldon held, that a declaration that she had elected, so as to conclude her, could not be maintained under the prayer for general relief: being inconsistent both with the case made by the bill, and with the specific prayer that she should make her election. And so, where a bill* was filed by a person in the character of mortgagee, praying a sale under a trust, to which it appeared he was not entitled, the Court would not permit him, under the general prayer, to take a decree that the defen- dant might redeem or be foreclosed ; although it was the relief which properly belonged to his case. And, in like manner, where a bill was brought for an annuity or rent-charge under a will, and the counsel for the plaintiff prayed at the bar that they might drop the demand for the annuity, and insist upon the land itself. Lord Hardwicke denied it: because it came within the rule before laid down." Upon the same principle, where a vendor filed a bill for a specific performance against > Oookv. Martyn, iAik. 28 ; Grimes v. French, ib. 141; Partridge v. Haycrqft, 11 Ve». 570,674; WUkituoH V. Seal, 4 Mad. 408. 3 16 & 16 Vic. c. 86, B. 10; Bee our Order 74. * Beadles v. BurcA, 10 Sim. 383, 837 : 4 Jar. 180 ; Bowles v. Stewart, 1 Sch. &, Let. S?7. * Cited by Lord Eldon, in Hiem v. MU, 13 Yes. 119. » PcUk V. Lord CUnUm, 1» Vbb. 48, 67 ; see also Jones v. Jones, 3 Atk. 110, 111 ; Chapman v. C^ap■ man, 13 Beav. J06 : 16 Jar. 866 ; Johnson v. Fennmeyer, 36 Beav. 88, 96 : 8 De G. A J. 18. * Orimtt V. French, S Atlc. 141. •A purchaser, years, but fi title, the Co account of tl stated by hii where a bill nient, and pi WHS dismiss( the substant though, in gi bill, the cas though a pla may yet ha answer. ' The rule, \ have under t in Hiem v. J rule i.s, that i material, the sustain, unde prayed, and description, i consistently ' case, a bill hi gagor, and a incumbrance, conveyance o notice, it did Loi-d Eldon, 1 hearing was c decreed an ac mortf^agor: X to pay the mc ' ^'Uliarns v. Sh ■ Legal v. Miller 5 Yes. 463, 46 Waintiffcann SteveMv. Ouppy, 8 Bubs. 171, 185; see also Ferrabv y. Hobson, 2 PUU. 2B6, 267; Chapman v. Chapman, 18 Beav. 806: 16 Jar. S66. ssSeh. &Lef.7Sl,7S9. was thoUj specially dant witi for gener tho Court bill, and ( by the bil The rul entitled t those cast been laid upon imp cannot be matters b( tho found] much of t] relief as n It may 1 fying the '. for relief though fa ground on hearing, t amendmer a redempt with const title of the was dismit fieally for ho was no relief. 3 It is to b upon a bal Where, ho^ duo at the ly accrued, ' WUde V. »( 671 ;Z case wltli efe«,7Ha ' ArchMd V Gutst, 6 ] ' Orahamv. * Weymouth I'i'f^ FORM OF THE BILL. 307 was thought of that a bill for an account of fraudulent dealings must specially pray that every bond, every instrument taken by the defen- dant without BuflScient consideration, should bo sot aside. The prayer for general relief is sufficient for the purpose ; and upon that pi-ayer, the Court may give every relief consistent with the case made by the bill, and continually does give relief in the manner specifically prayed by the bill, and sought for only by the prayer fur general relief," The rule, that the Court will only grant such relief as the plaintiff is entitled to, upon the case made by the bill, is most strictly enforced in those cases where the plaintiff relios upon fraud. Accordingly, it has been laid down, that where the plaintiff has rested his case in the bill upon imputations of direct personal misrepresentation and fraud, he cannot be permitted to support it upon any other ground ; " but if other matters be alleged in the bill, which will give the Court jurisdiction as the foundation of a decree, the proper course is to dismiss only so much of the bill as relates to the case of fraud, and to give so much relief as under the circumstances the plaintiff may bo entitled to.^ It may bo well to notice here an order of our own Court, No. 84, mo(^- fying the English practice, and which provides that " Whore the case for relief made by a bill is a case of actual fraud, and the evidence, though failing to establish the fraud charged, yet shows some other ground on which the plaintiff is entitled to relief, the Court is, at the hearing, to have the same discretion as in other cases to allow an amendment, and to grant relief according to the truth of the case." In a redemption suit, upon its appearing that K., a purchaser for value with constructive notice, but without actual notice, held a registered title of the land in question, as well as S., to whom he had sold, the bill was dismissed, as against K., with costs, an(f the plaintiff praying speci- fically for a re-convey anco of the mortgaged premises, it was held that ho was not entitled to personal relief under the prayer for general reliefs It is to be observed that the Court will not, in general, decree interest upon a balance, unless where it is specifically asked for by the bill.* Where, however, from peculiar circumstances, interest was not properly duo at the time the bill was filed, and a right to interest has subsequent, ly accrued, tho Court has directed interest to be computed, although ' WUde V. Oibsm, 1 H. L. Ca. 605; Olascott v. Lang, 2 PliU. 310, 322 ; Parr v. Jewell, 1 K. & J. 671 ; Zt^jf V. Ixtrd, 11 Jur. N. 8. 60, L. C. The use of the word " frand " does not briug the case within this rale, unless the case alleged is one of fraud properly so called : Marshall v. Slad- den, 7 Hare, 498, 448 : 14 Jur. 106, 109 ; M'Calnwnt v. Rankin, 8 Hare, 116 : 14 Jur. 475. ' ArchMd V. CommtsHoTurs qf Charitable Bequests for Ireland, 2 H. L. Ca. 440, 459; Harrison v. Gwst, 6 De G. M. & O. 434, 488 : 2 Jur. N. S. 911. ' Graham v. Chalmers, 9 Grant, 289. * W8ymou Deniston v. LitUe, 2 Sch. & Let. 11, n. ; Watts v. Hyde, 2 Phil. 406 : 11 Jur. 9TO ; see al«o Orioga V. Stapke, 2 De G. & S. 572 : 18 Jur. 39 ; Phelpg v. ProtAero, 2 De G. & S. 274 : 12 Jur. 733. » 2 Sch. & Lef. 1. 5 7 VcB. 211, 222. * 8 Ru88. 171, 186. ' Stapaion V. StapUton, 1 Atk. 6. • Attorney- General v. Jeanes, 1 Atk. 865. ' Bennet v. Vade, 2 Atk. 825 ; Ld. Bed. 89. ^1 m ^.- 310 tHE DILL. lid, and at the same time claim to take a bonofit on the assumplion of its validity.' It is a principle of Equity, that a person seeking relief in Equity must himself do what is equitable ; it is therefore required in many cases that a plaintiff should, by his bill, offer to do whatever the Court may consider necessary to be done on his part towards making the decree which ho seeks just and equitable, with regard to the other parties to the suit. Upon this principle, where a bill is filed to compel the specific performance of a contract by a defendant, the plaintiff ought, by his bill, to submit to perform the contract on his part ; and it is to be observed, that the effect of such submission will be to entitle a defendant to a decree, even though the plaintiff should not be able to make out his own title to relief, in the form prayed by his bill.' Upon the same principle, it was formerly required, that a bill for an account should contain an offer on th'^ pai't of the plaintiff to pay the balance, if found against him ; but it seems that such an offer is not now considered necessary. ^ And so, where a surety brought an action upon an indemnity bond against his principal, to. recover monies which ho had been compelled to pay on his account, and the principal filed a bill in Equity for an injunction, and to have the bond delivered up to be cancelled, suggesting fraud, but without offering to indemnify the defendant, the Court of Exchequer thought, that the want of an offer in the bill to make satisfaction, was fatal to the bill, and allowed a demur- rer, which had been put in by the defendant.* In like manner it has been held, that a mortgagor cannot make a mortgagee a party to a bill in respect of his mortgage estate, without offering to redeem him.* But the practice in this Province is different. On the question arising on demurrer as to whether a bill to redeem should contain an offer to redeem, Mowat, V. C, decided, without deeming it necessary to refer to authorities, that it need not ; on the ground that the form given in the Orders, of bills to redeem, contained no offer, but simply the prayer for leave to redeem. « It is upon the same ground that Courts of Equity, in cases where a contract is rendered void by a statute, require that a bill to set aside « WrigJU v. Wilkin, 4 Do G. & J. 141 ; fsee also Bawlings v. Lambert, IJ. & H. 468; Marsh v.Keith 1 Dr. & 8. 343 : 6 Jur. N. S. 1182; Thomas v. BcMer, 8 Jur. N. 8. 126, L. C. ; Lett v. Parry, 1 H. & M. 517. » Fife V. Clayton, 13 Ves. 646 : 1 C. P. Coop. t. Cott. 361 . > Columbian Oovernment v. Rothschiia, 1 Sim. 94, 103 ; Clarke t. Tipping, 4 Bear. 688, 693 : 6 Jur. 25 ; Barker v. Walters, 8 Beav. 99, 96 : 9 Jur. 73 ; Toulmin v. Beid, 14 Beav. 499, 605 ; Inman V. Wearing, 8 De Q. & S. 729, 783. * Godbolty. Tra<<«, 2Anst. 643. » Daltan v. Hayter, 7 Beav. 313, 819 ; Inman v. Wearing, 3 De G. & S. 729 : Attorney- General v. Hardy, 1 Sim. N. S. 338, 365. 15 Jur. 441 ; Knebell v. White, 2 Y. « C. Ex. 16, 20, * P ea rson v. Campbell, 2 Cham. R. 12. fS'*: FORla OF THt BILL. 811 Buch contract Hhould contain an offer on the part of the plaintiff to pay to tho defendant what is justly duo to him. Thus, whore a bill was tiled, praying that an instrument or security given for an usurious con- HJderation (and void under the usury laws then in force,) might be (lolivorcd up to bo cancelled, the only terms upon which a Court of Equity would interfere were those of the plaintiff paying to the defen- dant what was bona fide due to him; and where the plaintiff did not otl'or to do so by his bill, a demurrer was allowed. ' It seems that there is no difference, in this respect, between a cross-bill and an original bill. 3 The course of proceeding in bankruptcy, however, differs from that in Courts of Equity; for the rule in bankruptcy is, that a debt made void by statute is void altogether, and cannot bo proved: because the creditor has no legal remedy by which he can recover ; and unless the assignees and creditors voluntarily consent to the payment of what is really duo, neither the Court of Bankmptcy nor tho Lord Chancellor, or Lords Justices, have power to order it; and applications of this natui'c have frequently been refused.' It is a rule in Equity, that no person can be compelled to make a discovery which may expose him to a penalty, or to anything in the nature of a forfeiture. As, however, the plaintiff is, in many cases, himself the only person who would benefit by the penalty or forfeiture, he may, if he pleases to waive that benefit, have the discovery he seeks.* The effect of the waiver, in such cases, is to entitle the defendant (in case the plaintiff should proceed upon the . discovery which he has elicited by his bill, to enforce the penalty or forfeiture,) to come to a Court of Equity for an injunction: which he could not do without such an express waiver. « It is usual to insert this waiver in the prayer of the bill, and if it is omitted the bill will be liable to demurrer. Upon this ground, where an information was filed by the Attorney-General, to discover copyhold lands, and what timber had been cut down and waste committed, and the defendant demurred, because, although the discovery would have exposed the defendant to a forfeiture of the place wasted and treble damages, the Attorney-General had not waived the forfeitures, the demurrer was allowed." And so it has been held, that a demurrer will lie to a bill by a reversioner, for a discovery of an assignment of a lease ' Mason v. Oardiner, 4 Bro. C. C. 486 ; iScoU v. Netbit, 2 Bro, C. C. 641, 049 : 2 Cox, 183 ; Whitmore V. Francis, 8 Pri. 616. " Mason v. Oardiner, 4 Bro. C. C. ed. Belt, 488, n. ' Exparte Thompson, 1 Atk. 126 ; Ex parts Skip, 2 Ves. 8. 489 ; JEc parte Mather, 3 Ves. 373 ; Exparle Scrivener, 8 V. & B. 14; Archbold's Bankruptcy, 110. * Tn Mason y. Lake, 2 Bro. P. C. ed. Toml. 496, 497, leave appears to have been eiven to amend a bill, by waiving penalties and forfeitures, after a demurrer upon that ground allowed. ' Lord XMridge v. Staveland, 1 Ves. 8. 66. • Attorney-Oeneral v. Vincent. Bunb. 192. I ■k I- :i\2 THE BILL. without licoiiHC, if it dooH not expressly waive the forfeiture' Upon tlio same principle, if a rector or impropriator, or a vicar, file a bill for tithes, ho must waive the penalty of the treble value, to which he iw entitled by the statute of 2 & 3 Edward VI. : otherwise, his bill will l»c liable to demurrer." It seems, however, that if the bill pray an account of the single value of the tithes only, such a prayer will amount to an implied waiver of the treble value, and that an injunction may bo grant- ed against suing I'or the poi\alty of the treble value, as well ujwn this implied waiver as upon the most express.' It is to be observed, also, that if the executor or administrator of a parson bring a bill for tithes, ho need not offer to accept the single value, as the statute ol' Edward VI. does not give to such persons a right to the treble valui',* And it seems, that if a plainf'T has made a gratuitous offer by his bill, ho cannot ailorwards withdraw it;» but it is in the discretion of the Court whether or not to enforce it." For the purpose of preserving the property in dispute pending a suit, or to prevent evasion of justice, the Court either makes a special order on the subject, or issues a provisional writ : such as, the writ of injunction to restrain the defendant from proceeding at Common Law against the plaintiff, or from committing waste, or doing any inju- rious act; the writ of ne exeat regno, to restrain the defendant frcni avoiding the plaintiff's demands by quitting the kingdom ; or other writ of a similar nature. When a bill seeks to obtain the special order of the Court, or a provisional writ for any of these purposes, a prayer for the order or particular writ which the case requires should be inserted, and the bill is then commonly named from the writ so prayed : as, an in- junction bill, or a bill for a writ of ne exeat regno.'' As a general rule, the Court will not grant an injunction, unless expressly prayed by the bill.s A prayer for general relief will not be sufficient to authorize it:* lor, as against the general words, the defen- dant might make aditfereut case than he would against a prayer for an injunction." It seemN, iiowevor, that there are exceptions to this rule; and that, in some cases, the Court will grant an injimction, though not prayed for." > Lord Uxbridge v. Stavelatid, 1 Vcb, S. 66. « Ld. Red. 196 ; Ation. 1 Vera. 60. » Wools V. Walley, 1 Anst. 100. * Anon. 1 Ycrn. 60; sec also Attorney- General v. Vincent, ubi sup. » PeUy V. Wat/ien, 7 Hare, 371 : 14 Jur. 9, 18 ; Potter v. Waller, 2 De G. & S. 410, 420 ; Kendall v. Marsters, 3 De G. P. & J. 200. * KntgM v. Bmoyer, 2 De G. & J. 421, 447 : 4 Jiir. N. S. 669. 1 Ld. Red. 46. * Savory v. Dyer, Amb. 70. » Wright V. Atkyns, 1 V. & B. 313, 814. •• Savory v. J)yer, vbi sup. >» Blontfield v. Eyrf^ 8 Beav. SfiO, 269 : 9 Jur. 717. FORM OF THE BILL. 313 It Ih to be observed, that the rule not to grant an injunction, unlesH specially prayed, applies only to cases where it is i-ecjuired, provision- ally, until the hearing: but that after decree, the Court will interjwse by injunction, although it is not asked for by the bill." Where an injunction is sought, not as a provisional remedy merely, but as a continued protection to the rights of the plaintiff, the prayer of the bill must lo framed accord ingly.=' The prayer for a ne exeat regno resembles, mutatis mutandis, that for an injunction. But, though it is usual, it is not necessary that the bill should i)ray the writ, as the intention to go abroad may arise \u the progress of the cause; and if, when the bill is filed, the defendant does not Intend to leave the kingdom, it would be highly improper to pray the writ : as a groundless suggestion that the defendant means to abscond would press too hai*shly, and would also operate to create the very mis- chief whicli the Court, in permitting the motion for it to be made with- out notice, means to prevent. ' In the case, however, of Sharp v. Taylor, * where the plaintiff knew, at the time of the filing of the bill, that the defendant was going abroad, Sir Lancelot Shadwell, V. C, refused to grant a writ of ne exeat regno, in consequence of its not having been prayed for by the bill.' In addition to the particulars already mentioned as necessary parts of a bill, the bill should also, in the heading, be expressed to be between the intended plaintiffs and defendants ; the names of the defendants should be repeated at the end, as defendants to the bill.« Section VI. — In what Cases the Bill must be accompanied by an Affidavit. There are certain cases in which it is necessary that the bill should be accompanied by an affidavit, to be filed with it, and in which the omission of such accompaniment will render the bill liable to demurrer. Thus, when a bill is filed to obtain the benefit of an instrument upon which an action at Law would lie, upon the gronnd that it is lost, and uiat the plaintiif in equity cannot therefore have any relief at Law, the Court requires that the bill should bo accompanied by an affidavit of m ' Wright V. Atkyns, ubi fup. ; Poxton v. Douglas, 8 Ves. 630 ; Jackson v. Leaf, 1 J. & W. 2S9, 232 Oarke v. Earl qf Ormond, Jac. 122; Beynell v. Sprye, 1 De O. M. & Q. 060, 690. 'Ld.Red.«. ' CoUinson v , 18 Ves. 3B8 ; Moore v. BMson, 6 Mad. 218 ; Banned v. Laing, 18 Sim. 266 : 6 Jnr. lOfiO : 7 Jar. 883 ; Howkins v. B&wkins, 1 Dr. & S. 76 : 6 Jttr. N. S. 490. * U Sim. 50 ; and see remarks on Uiat case in Barned t. Laing, vbi sup. ' Sec Darley v. Nicholson, 1 Dr. & War. 66 ; 2 Dr. & War. 86 : 1 Con. & L. 907, for Uie principles upon which the Court acts in granting writs otne exeat regno. * The words, "out of the Jurisdiction," should be added aRcr the name of' defendant Who Is ahroad. V 4?^ 314 THE BIT.T,. the loss of the instrument.' If, however, the objection is not taken by demurrer, but the cause proceeds to a hearing, and the answer of the defendant admits the loss or destruction of the instrument, then the Court has jurisdiction, and the objection for want of the affidavit will be overruled.^ So, in suits for the discovery of deeds and writings, and for relief founded upon such instruments, if the relief prayed be such ns might be obtained at Law, on the production of deeds or writings, the plaintiff must annex to his bill an affidavit that they are not in his cus- tody or power, and that he knows not where they are, unless they are in the hands of the defendant. But a bill for a discovery merely, or which only prays the delivery of deeds or writings, or equitable relief grounded upoii them, does not require such an affidavit.' The reader will bear in mind that by our Order 85, " No l/ill is to be filed for discovery merely, except in aid of the prosecution or defence of an action at Law." It was decided, in King v. King,* that an affidavit is also unnecessary in the case of »a bill for discovery of an instrument which has been fraudulently cancelled by the defendant, and to have another deed executed : for, in such a case, if the plaintiff had the cancelled instrument in his hands he could make no use of it at Law, and, indeed, the roliQf prayed is such as a Court of Equity only can give; but, in Rootham v. Dawson,^ the autho- rity of King ^ King appears to have been questioned, and a different decision come to. In that case, the bill was filed for the discovery qf the contents of a bond which had been given to the plaintiffs, as parish officers, as an indemnification for the expense of a bastard child, and which was alleged in the bill to have been defaced and cancelled by tearing off the signatui'e of the obligor, so that the bond was no longer in force ; the bill also prayed an account and payment of what was due on the bond, as well as the execution of a new one for the future inaem- nification of the trustees. To this bill the defendant demurred : " for that the plaintiffs ought, according to the rules of the Court, to have made an affidavit of the bond being defaced and avoided, as stated in the bill;" and the demurrer was allowed. It is to be observed, that the L. C. B. Macdonald, in his judgment, appears to hav6 proceeded upon the ground that the plaintiffs had not confined themselves to seeking a discovery and re-execution of the bond, but had gone on to pray for payment of the sum already duo : though, certainly, that distinction « Ld. Red. 124 ; Walmsley v. Cftild, 1 Ves. 8. 841 ; Wright v. Lord MaidiUme, 1 K. & J. TOl : 1 J" N. 8. 1018 ; Whitchurch v. (folding, 3 P. Wm». Ml.. * Crosse v. Bedingfleld, 13 Sim. 85 : 6 Jur. 886. « Ld. Bed. 64 ; Bee 1 Ves. 8. 341, 844 ; Whitchurch V. Oolding, 8 P. Wms. 641 ; Anon. 3 Atk. K; Dormer v. Fortescue, ib. 183. * Mos. 193; and ecc Ld. Bed. 194. * 3 Anit, 869. P«H*- l^OtlM OF THE BILL. 315 does not appear to have been recognized by the learned Baron Thomp- son, who delivered his opinion upon the occasion. It is, however, sub- mitted that the reason given for the decision in King v. King is quite .satisfactory : for, as the ground for the interference ofaCoui't of Equity in such a case is not the loss, but the canctllation of the instrument, so as to render it impossible to use it at Law, no relief will be granted by the Court until it is satisfied that the cancellation has taken place, by tiio production of the cancelled instrument ; whereas, in the case of the loss of a document, the Court has, in general, no means of satisfying itself that the document has been lost but the assertion of the party himself: which it consequently requires should be made uj)on oath. Even in cases in which the legislature has expressly directed that the affidavit should be " annexed to the bill," it is not necessary that the affidavit siiuuld be sworn at the same time as the bill is filed ; but it is the usual practice, in all cases in which an affidavit is necessary, to have it sworn a day or two before the bill is filed.' The other cases, in which bills are required to be accompanied by an affidavit, may be mentioned here, although they do not come within the description of bills which are now the subject of discussion. These are; bills for the purpose of pei*petuating the testimony of witnesses, where, from circumstances, such as the age or infirmity of witne8ses,jor their intention of leaving the country, it is probable the plaintiff would lose the benefit of their testimony : in which case, an affidavit of the circumstances, by means of which the testimony may probably be lost, must bo annexed to the bill;!" and bills of Interpleader, which also, to avoid a demurrer, must be accompanied by an affidavit by the plaintiff that there is no collusion between him and any of the parties. ^ It is to be observed that, in cases of this nature, advantage can only be taken of the omission of an affidavit, by demurrer; and that where a plaintiff, instead of demuiTing on this ground in the first instance, put in a plea to the whole bill, which was overruled, he was not allowed to demur, ore temis, on the ground that the necessary affidavit was not annexed.* If there are several plaintiffs, all must join in the affidavit, unless ' Wat^cfr V. Fletcher, 1 Phil. 115 ; IS Sim. 420, 432 : Jnr. 4 ; but see Francome v. Franconu, 18 W. R. <»^*;, L. C. The affidavit is ugoallr, but need not be attached to the biU : Jmet v. Shep- herd, i, ^eav. 298 : 7 Jur. N. 8. 260 ; Affirmed by L. C. 7 Jur. N. S. 228 : ««i nom. Shepherd v. Jones, 3 De 0. F. & J. 6A. It may be made an exhibit to the bill. » Ld. Red. 150 ; PfUUipt v. Carew, 1 P. Wms. 116. ' Ld. Red. 49 ; Bigtwld v. Audland, 11 81m. 9a-,ffamilUm v. Marks, 6De O. & 8. 688, For forma of demurrer for want of affidavit, see % Van Hey. 77. In Larabrie v. Brown, 1 De G. & J. 904 : 33 Beav. 607, leave waa given to file an inteipleader bill quantum valeat, on affidavit of the plaintlfrs' BoUcitor, the plaintlffii heing abroad, and time preaslng; buf ' e affidavit of the pltlntiirs waa afterwards, by leave of the Court, filed and annexed to thi < '1. nunc pro tunc : Braithwalte's Pr. 27. Where there were several plaintiffli residing in dlstk.- places, leave was fiven, on a likb affidavit, and an ii^unctlou granted for a limited time, on an nndertaking to aie the usual affidavit : Nelaon v. Barter, 10 Jur. N. 8. 611 : IS W. R. 867, V. C. W. • Book V. Drnnan, 1 8. & 8. 227, 881 ; Crotte v. BedingMvl, IS Sim. 36 : 6 Jur. 886. 316 THE BILL. a satisfactory explanation be given for their non-joinder. » Ifacorpo-I ration is plaintiff, the affidavit may be made by the secretary or otherl responsible officer. The affidavit may be written or printed ; and tl copy of it, but not necessarily an office copy, should be sealed at thel Record and Writ Clerks' office, and annexed to ea*"li copy of the bill| sealed there for service, ^ and sei-ved therewith. ?"' Section VII. — Printing and Filing the Bill. After the bill has been drawn, it is, in some cases, to bo printed.! The following Orders point out the practice : Order QQ, provides that,! " Pleadings, and all other proceedings in a cause may be written orl printed, or partly wi'itten and partly printed ; and where wholly print-j ed, dates and sums occurring therein are to be expressed by figures! instead of words." Order 67 declares that "All pleadings and otherj proceedings are to be written or printed neatly and legibly on g paper, of the size and form heretofore in use ; and, if printed,the samel are to be printed with pica type leaded, and 'the solicitor is not to be! entitled to the costs of any pleading or other proceeding which isnoti in conformity with this order, and the Clerk of Eecords and Writs, orl Deputy Registrar, is to refuse to file the same." And Order 68 providesj that, "Every bill, answer and petition filed, and every affidavit to be! used in any cause or matter, is to be divided into paragraphs, and everrj paragraph is to be numbered consecutively, and, as nearly as may be,[ is to be confined to a distinct portion of the subject. No costs are to be| allowed for any bill, answer, petition, or affidavit, or part of any answer, petition, or affidavit, substantially violating this order: norl shall any affidavit violating this order be used in support of, or opposi- j tion to, any motion, without the express permission of the Court." It has been decided,on these Order8,that where the office copy of the bill I served upon a defendant is not printed in accordance with these Orders,! the service will be set aside with costs : and that although the Eegis-I trar may have filed a bill not printed in accordance with the orders rfj Court, a motion to take the bill off the files for such non-compliane may be made.' The practice as to the endorsement of bills and otherj proceedings, and their service, has already been pointed out.* > Braithwaite's Fr. 97, and OVM» t. GiVbt, there cited. * Bralthwatte'i Pr. 97. No fee is payable an filing an affidavit witli, or annexed to, a bill : /& * CV>M«yT. IHffX^^ofO, aciiam.R. S37. 4 See ante, Orders 40, 41, 43, 43, 44, 45. sts; and if the . »ii|II|WKn^ PRINTING AND FILING THE BILL. 311 By two English Orders of 1660 and 1666, it is provided that no plea, Lnswcr, or affidavit is to bo filed in which there is any knife erasure, or irhieh is blotted so as to obliterate any word, or which is improperly itten, or so altered as to cause any material disfigurement, or in ifhich there is any interlineation of any word or words, uuless the erson before whom the same is sworn duly authenticates such inter- feneation with his initials, in such manner as to show that the inter. jineation was made before the plea, answer, or affidavit was sworn, and 3as to mark the extent of such interlineation. These orders are in Iforce in this Province. An affidavit, containing unauthenticated inter- lineations of Christian names was allowed to be filed.' Erasures in wital of contents of an exhibit were held immaterial. ^^ The copy of the bill being prepared, it is delivered to the Clerk of ficords and Writs, or Deputy Eegistrar, who thereupon writes thereon he date on which it is brought into his office, and receives it into jiis custody. The bill is then said to be filed, and of record ; but before his process is completed it is not of any effect in Court. Oiu- Order 73 provides that "Every paper to be filed in the office of he Clerk of Recoi*ds and Writs is to be distinctly marked at or near he top or upper part thereof on the outside, with the name of the city jrtown in which the bill is filed. And the Clerk of Records and Writs i not to file any paper which is not so marked." Order 72 declares hat "All the pleadings in any cause must be filed at the same office." ^nd Order 77 provides that "A bill of complaint may be filed either fith the Clerk of Records and Writs, or with a Deputy Registrar, at he option of Ihe plaintiff: and the filing of a bill of complaint shall flve the same effect as the filing of a bill and the issuing of a subpoena to Ippear and answer formerly had." The endorsement of an office copy lill must specify distinctly which relief the plaintiff seeks, whether sale Jr foreclosure. 3 The copy of an information intended to bo filed must bear the signa- Inreofthe Attorney-General.* To obtain this, a copy of the draft is |fft with him, together with a certificate of the counsel who settled it, hat it is proper for his sanction, and also a certificate of the solicitor ^r the relator that he is a proper person to be relator, and is able to pay ats; and if the Attorney -General approves of the draft, he will then, In the copy to be filed being left with him, together with a certificate hat it is a true copy of the draft as settled by counsel,' affix his signor Vmctig V. Barweiss, 8 W. R. 269. I' Samge v. nutchinson, 24 L. J. Ch. 232. I , ' Drewry v. O'NeiU, 2 Cham. R. 2Q1. I'BniUiwaite'sPr. 36. • I >. 1 i 318 THE BILL. lure thereto. The information so signed is then filed, in the same man- ner as a bill. The bill being filed, it is provided by our Order 405 that " Every defendant, appearing by a different solicitor, is entitled to demand from the plaintiff two copies of any printed bill, paying for each copy two cents per folio." Kthe plaintiff desire, he may, as soon as he has filed the bill, obtain from the Registrar or Deputy Registrar, and register in the County Registry Office, a certificate of Lis Pendens, under Con. Sta. U. C. c. 12, s. 64, and 31 Vic. c. 20 (Ontario) : but no certificate is required to be registered of a suit or proceeding for the foreclosure of a registered mortgage. And where a certificate of lis pendens has been registered, and the bill is afterwards dismissed, it is not necessary to obtain an order discharging the certificate from the registry : the regis- tration of the decree dismissing the bill being sufficient for all purposes.' There is no precedent for dispensing with the signature of the Attorney- General to an information. Where, in the absence from the Province of the Attorney-General, an information was filed without signature, but having endorsed thereon a fiat by the Solicitor-General, it was ordered to be taken off the files. » Section VIII. — Amcndiiv) the Bill. When a plaintiff has prefei-rcd his bill, and is advised that the same does not contain such material facts, or make all such persons parties, as are necessary to enable the Court to do complete justice, he may alter it, by inserting new matter, !» or by adding such persons as shall bo deemed necessary parties ; or in case the original bill shall bo found to contain matter not relevant, or no longer necessary to the plaintiff's case, or to name as parties persons who may be dispensed with, the same may be struck out; the original bill, thus added to or altered, is termed an amended bill.* But, although it is the practice to call a bill thus altered an amended bill, the amendment is in fact esteemed but as a continuation of the original bill, and as forming part of it ; for both the original and * J)eater v. Cotf&rd, 1 Cham. R. 22. a Attomey-Oeneral v. Toronto Street Railway, 3 Cham. K. 165. * If at the time of filing the bill *he plaintiff had no title to the relief prayed, he cannot make out t title by introducing by amendment fttcts which have subsequently occurred : Attorney-Omrtl V. Portreeve qfAvon, 11 W. R. 1061, L.JJ. ; contra, Talbot v. Lord Radnor, 3 M. & K. «B, * Hinde, SI. A written bill may be thus amended, as \ eu as a printed bill. amended bill original bill is which the deft fo confesso, gci the amendmen fore, in all case the pendency c matter brough time of filing t] pendent only f Where there suit amends hi: his right to ha^ bill.' Amendments and those whic Tides that " O obtained at £ declares that " before answer, where the Coui prejudice to the of au order to is to proceed i form." Order rectifying a c obtained at anj may move exp order to take defendant is in satisfied that th order, it may that "A plaint amend within f ' Verev.CHynn,i ^ Jibing v.stmri ' Bacon v. Ortfith ' If tlie dcBcription tlie new descrit Jnr.60; but th has been obtain •Ld.Red.880;Xoi ' Sltward v. Roe, I the plaintiff an^ priority: Ortty AUENDINQ THE BILL. 319 amended bill constitute but one record : ' so much so, that where an original bill is fully answered, and amendments are afterwards made, to which the defendant does not answer, the whole record may be taken, pro cmfesso, gonerally,^ and an order to take the bill pro confesso as to the amendments only will bo irregular. ^ An amended bill must, there. fore, in all cases, be addressed in the same way as a bill.* But, so far as the pendency of a suit can affect either the parties to it, or strangers matter brought into a bill by amendment will not have relation to the time of filing the original bill, but the suit will bo so far considered as j)endent only from the time of the amendment.* ' > Where there is a bill and cross bill, and the plaintiff in the original suit amends his bill before answer, ho will lose his priority of suit, and hiij right to have an answer before ho is called upon to answer the cross bill.' Amendments to a bill are of two soi-ts; those which relate to parties, and those which affect the substance of the case. Our Oi-der 78 pro- vides that " Orders of course to amend a bill of complaint may be obtained at any time before answer, upon praecipe.'' Oixler 79 declares that " Sei-vice upon a defendant of an order of course to amend before answer, may be dispensed with upon an api)lication ex parte, where the Court is satisfied that such an order may be made without prejudice to the defendant's rights ; and where service upon a defendant of an order to amend is dispensed with, the cause as to such defendant is to proceed as if the bill had been originally filed in the amended form." Order 80, that " An order to amend the bill, for the purpose of rectifying a clerical error in names, dates, or sums only, may be obtained at any time ujjon proecipe." Order 82 declares that "A plaintifif may move ex parte for leave to amend the bill, without prejudice to an order to take the bill j?ro confesso, or to the entry of a note that the defendant is in default for want of an answer ; and where the Court is satisfied that the rights of the defendant will not be 'prejudiced by such order, it may direct the same accordingly." And Order 83 provides that "A plaintifl', having obtained an order to amend his bill, is to amend within fom*teen days from the date of the order ; otherwise the ' Vere v. Glynn, 2 Dick. 441. , ' Jopling V. Stuart, 4 Ves. 619. ' Bacon v. Griffith, ib. n. ; and see Landon v. Eeady, 1 8. i& S. 44. * If the description of the plaintiff, or his next fHend, is not the same as when the bill was filed, the new description should appear in the amended bill : Kerr v. Gillespie, 7 Beav. 969, 271 : 8 Jur. 60 ; but the name of his solicitor cannot be altered, unless an order to change the solicitor has been obtained : Braithwaite's Pr. 299. ' U. Red. 380 ; Long v. Burton, 2 Atk. 218. • Slwarcl V. Boe, 2 P. Wnw, 484 ; Johnson v. Freer, 2 Cox, 871 ; Noel v. King, 2 Mad. 392. But If toe plaintiff amends his bill before he knows of the filing of the crocs bill, he does not lose bis priority : Qray v. H JKasonv. Seney, 11 Grant, Al. ^ For form of order, see Seton, 1S63, No. 7. » SBeav. HP* '^ 'ur. 500; see Hart v. Tulk, 6 Hare, 611, 613; Bather v. Kearsletj, 7Beav.W5; JtLeod V. juyttleton, 1 Drew. 86; I>rake v. Sumes, 7 Jur. N. 8. 809, L.JJ. As to the coarse where, after decree, the solicitor of the plaintiffs ceases to practice, and one of them refuses lo concnr with the rest in appointing a succoBBor, sec Butlin v. Arnola, 1 H. A M. 715. * 3 M.* 0.368, 861: lJur.790. AHENDINQ THE BILL. 321 W port of such an application is, that the defendants will not be prejudiced by such an alteration ; they must show that justice will not be done, or that the suit cannot be so conveniently prosecuted, unless the alteration is made. I cannot give them such an advantage as they ask, and per- mit them to alter the record, merely because they may have a different wish at one time, from that which they may have at another time : which may be the result of mere caprice." In the case of Hall v. Lack,^^ where it appeared that the association of a cestui que trust and trustee, as co-plaintiffs on the record, might materially injure the interests of the former, Sir J. L. Knight Bruce, V. C, gave leave to amend the record, by striking out the name of the trustee as plaintiff, and making him a defendant. Leave may also be obtained to amend a bill, by the addition of persons as co-plaintiffs. After answer, however, the addition of a co-plaintiff is not a matter of course, but is discretionary in the Court; and it would appear, that where a plaintiff applies, after answer, for leave to amend his bill, by adding a co-plaintiff, he must, in support of his application, show that the person proposed to be added is willing to become a co-plaintiff. ^ An order for leave to amend by adding a plaintiff after replication has been refused, where the plaintiff had been fflilty of laches.^ A bill of discovery cannot be amended by adding parties as plaintiffs. This was held to be the law of the Court by Lord Eldon, in Lord Chol- nmdeley v. Lord Clinton,* where a bill had been filed by cestui que trusts, in aid of an ejectment at Law, and the defendant pleaded facts to show that the legal estate was in the trustees. The difficulty in the case was, however, got over by the plaintiffs consenting to the allowance of the plea, and moving to amend by inserting a statement to show that the legal estate was in trustees, and that a count had been introduced in the declaration in ejectment on the demise of the trustees. An order made at the hearing for leave to amcQd, by adding parties, will not authorize the introduction of co-plaintiffs;' but the Court will sometimes allow a bill, which has originalfy been filed by one indivi- dual of a numerous class, in his own right, to stand over at the hearing, for the purpose of being amended by the introduction of the words : on behalf of himself, and all others of the class. Thus, in Lloyd v. Lodring, " ' S T. & C. 0. 0. 631 : gee also Plutiket v. Joice, 3 Sch. & Lef. 169, ante, ; Jonet y. Rou, 4 Hare, 63, where leave given to Btrike out " on behalf of themselves and all other shareholders ;" Hart V. Tidk, 6 Hare, 612 ; Drake v. Symet, 1 Jur. If. S. 899, L.JJ. ' Tlu Qotemort qfLuetOii Free School v. Smith, M'Lel. 17, 19. « mward V. OltUMd, 4 Pri. 825. •SMer.n,74. * Jfl%an T. JtiteheU, 1 M. & 0. 488, 442. ♦eVej.TrSjTO; tethUoAttorney-Oenerat v. Neweombe, 14 Yes. 1,6; Good v. Bl*vottt, ISVes. 3117,401. 91 f; IJ 322 THE BILL. where a demurrer was allowed, becauso the parties affected to sue In a corporate capacity, leave was given to amend, by making them sue in their individual rights as members of a co-partnership, on behalf of themselves and others. It has been said, that the Court will, at any time before the hearing, suffer parties to bo added by amendment, upon a proper case being shown ; ' and that even after a decree, and before it has been enrolled, persons interested may, by petition, be made parties and let into it, if their right be interwoven with the other plaintiff's, and settled (in general) by the decree : they paying the plaintiffs a proportionable part of the charges of the suit." But where an application was made to amend the bill after decree by substituting the words " second concession " for the words " twelfth concession," it was refused. ^ And in a subsequent case, an application was made ex parte for leave to amend, after decree, by correcting the description of the mortgaged premises, when it was held that the appli- cation could not be granted ex parte, and qucere, whether a bill can be amended at all after decree. In Barrett v. Gardner, the Chancellor refused leave to amend, whilst in Joy v. Spafford, Y. C. Spragge granted it.* After a decree had been pronounced in a suit of foreclosiu-e, the plaintiff discovered that portions of the mortgaged premises had been sold by the mortgagor before the bill was filed. Held, in accordance with decisions of Esten, Y. C, per Blake, C, that the purchasers of such portions might be brought before the Court by amendment, and that the proper mode of proceeding was by petition, although, but for those decisions, he would have thought a motion to amend, under Order 9, June, 1853, s. 14, the proper course.' If parties are added after the expiration of the time for giving notice of the cross-examination of the witnesses, the evidence of such witnesses cannot be read against the parties so added.' It is not within the province of this work to point out the cases in which amendments may become requisite, for the purpose of altering the case upon the record ks against the defendants already before the Court, or to what extent they may be made. It is to be observed, however that the rule which formerly existed, that a plaintiflf ought not to intro duee facts, by amendment, which have occurred since the filing of the * Ododwin V. Ooodwin, 3 Atk. 870 ; see Ibrbee v. Stevent, 10 Jur. N. S. 801, V. C. W. : 4 N. K., 886,L.JJ. * Wyatt's Pr. 801. > Barrett v. Gardner, 1 Cham. B. 844. * B. qf Montreal v. Power, 2 Cham. K. 47. * Bumble v. Moore, 1 Cham. B. 69. * I^att V. Barker, 1 Sim. 1, 6 ; Jamet t. Janm, 4 Beav. 678 : 5 Jar. 1148; Quantoek t. Sullen, 5 Mad. 81. ^ AMENDING TH£ BILL. 323 original bill, has been abolished; and that facts and circumstances occurring after the institution of a suit may be introduced into the bill by amendment, if the cause is otherwise in a state in which an amend- ment may be made, • and if not, they may be added by supplemental statement. Where an answer of a defendant states facts which are material to the plaintiff's case, but which have not been stated in the bill, it is not necessary that the plaintiff, in order to avail himself of them at the hearing, should introduce such facts into his bill by amendment, although perhaps the most convenient course would be to do so.' Where, however, it is important to the plaintiff that a fact disclosed in the answer should be further inquired into, or avoided by some further statement, the practice is often resorted to of introducing such fact from the answer of the defendant into the bill ; and where a plaintiff, not being satisfied with the answer, emended his bill, stating, by way of pretence, a quotation from the answer, and negativing it, and insisted that the facts would appear differently if the defendant would look into his accounts. Sir Thomas Plumer, V. C, held, that the matter so intro- duced was not impertinent. 3 Great latitude is allowed to a plaintiff in making amendments, and the Court has even gone to the extent of permitting a bill to be con- verted into an information : * it has also been held, where a plaintiff filed a bill, stating an agreement, and the defendant by his answer admitted that there was an agreement, but different from that stated by the plain- tiff, that the plaintiff might amend his bill, abandoning his first agree- ment, and praying for a decree according to that admitted by the defendant.* In that case, however, the amendment was permitted. because the bill in its original form might have been prepared under a mistakeormisconception of counsel, and the plaintiff, having afterwards discovered the error, was allowed by the Court to abandon his original case, and insist upon the one alleged by the defendant; but the Court will not carry its liberality further, and permit a plaintiff to amend his bill, so that he may continue to insist upon the agreement originally stated, and if he fails in that, to get the benefit of the one admitted by the defendant. Upon this principle, where the original bill prayed the specific performance of an agreement, and the defendant denied the agreement as stated in the bill, but admitted a different one, whereupon the plai^j^tiff amended his bill, continuing to insist on the ■ Our Orders 348, S49, 850, 361. See Tudway v. Jones, 1 K. & J. 691 ; Forbes \. Sttveru, utn iup. and see Attorney- Oeneral v. Portreeve tfAwm, 11 W. R, 1060 1051. I1.J.T ' AUvmd V. , 1 Rua. 358, 861. » SeeUy v. .BoeAm, 2 Mad. 176, 180. * Pretident qf St. Mary Magdalen v. Sibthorp, 1 Boss. 154. * Per Lord Bedeedftle, LimMay t. Lynch, S Sob. A Lef. 9. m 324 THS BILL. original agreement, and praying in the alternative, if not entitled to that, to have the execution of the admitted agreement; Lord Eedesdale dismissed the bill with costs, but without prejudice to any bill the planti if might bo advised to file, to obtain a performance of the admitted agreement. > The Court will not grant leave to amend a bill, where the proposed amendment would render the bill of a different nature.^" It seems that, as a general rule, the Court will not permit a bill, filed for the mere purpose of discovery, to bo converted into one for relief, by the addition of a prayer for relief, ^ though it has been allowed in some cases : ♦ and it seems, that a bill for relief cannot be converted into a bill for discovery by striking out the prayer; thus, in Lord Cholmon- deley v. Lord Clinton,^ where the defendants, having answered the bill, obtained an order for the plaintiff to elect whether he would proceed at Law or in Equity, whereupon the plaintiif elected to proceed at Law, and moved to dismiss his bill as far as it sought relief, and to amend the record by striking out the prayer for relief, the motion was refused : Lord Eldon being of opinion, that the better course for the plaintiff would be to dismiss his bill, and file another for discovery only ; which was accordingly done.« Any amendment of a bill, however trivial and unimportant, authorizes a defendant, though not required to answer, to put in an unswer, making an entirely new defence, and contradicting his former answer. Thus, in Bolton v. Bolton,"^ Sir Lancelot Shadwoll, V. C, on this ground refused with costs, a motion to take an answer to an amended bill off the file : although it was filed nearly three years after the bill had been amended, and eight years after the original answer, and contradicted the original answer, introducing no less than four new issues or defences. An amendment of the bill does not, however, enable a defendant who has answered the original bill to demur to an amended bill upon any cause of demurrer to which the original bill was open," unless the nature of the case made by the bill has been changed by the amendments.' * Lindsay t. Lynch, 2 Sch. & Let. 1 ; see also Woollam r. Hearn, 7 Ves. 311, S22 ; and Deniiton r. Litae, 2 Sch. & Let. 11, n. (a). » Crawford v. Bradbum, 1 Cham. R. 280. Butterworth v. Bailey, 16 Ves, 368, 361 ; Jackson v. Strong, M'Lel. 246; Parker v. Ford, 1 Coll. 606. * midyard v. dressy, 3 Atk. 308; Crow v. TyreU, 2 Mad. 897, 409 ; Lomada t. Temtder,'iiB.VLii. 6C1. 686 ; Severn y. Fletcher, 6 Sim. 467. • » 8 V. & B. 118. S Her. 71. In the ahove case, GurUh v. Donovan, 2 Atk. 166, was cited in argrnment in support of the motion, but, npon reference to the Reffistrar's book, it appeared that the order for strik- ing out the prayer was made by consent, and that an answer was pat in by the defendant alter the order was made ; 2 V. & B. 114, n. (a). 1 29'h >Tune 1831, MSS., ex relatione Beatnea. » Attorney-General v. Cooper, 8 Hare, 166 ; see also WytUe v. EUice, 6 Hare, 606 ; Mice r. Ooodm, 8M. &0.668,661; 2Jur.a49. ' .' ' * Orety t. Sevan, 18 tiim. 864. im. AMENDING THE BILL. m^i 826 No alteration can bo mado in any pleading, ddUfhor matter, after it has been filed, and by that means become a record of the Court, without the sanction of an Order. Orders for leave to amend bills, may, subject to the rules and regulations hereafter pointed out, bo obtained at any period of the cause, previously to the hearing. An order for leave to amend a bill maybe obtained at any time before answer, uj)on motion without notice' An order for leave to amend a bill, only for the purpose of rectifying some clerical error in names, dates, or sur s may bo obtained at any time, upon motion without notice. = The order should specify the errors which are to bt corrected. =» It is provided by Order 121 of our Con.G. O. that, "Where a demur- rer is not set down for argument by the plaintiff, or the plaintiff does hot obtain an order to amend, within eight days after notice of filing the demurrer is served, the defendant may set the same down, and serve notice thereof." Where a demurrer has been overruled, it is irregular to obtain an order of course to amend ponding an appeal ; and in such a case, the order was discharged with costs, and the amendments expunged.* In like manner, it is irregular to obtain an order of course to amend, pending an inquiry which of two suits is most for an infant's benefit.* If, at the time the order for amendment is made, none of the defen- dants have appeared, the plaintiff may amend without payment of any costs. If any of the defendants have appeared, but have not answered, or, having answered, the plaintiff requires no further answer from them, the plaintiff may amend without payment of any costs to them ; but the plaintiff must pay 205. to each defendant, or set of defendants, who have answered, and from whom the plaintiff reciuires a further answer. Where no further answer is required, the order should contain a recital to that effect : otherwise it is irregular. « It is now proposed to consider the circumstaT* ijh under which a bill may be amended after answer. Our Order 81, provides that " One order of course to amend the bill, as the plaintiff may Jpe advised, may be obtained by the plaintiff upon ' Ord. 76. As many orders ae may be required may be thus obtained. * Ord. 80. Bat ench an amendment will render inoperative an order to talce a bill pro confeeto \ Weightman v. Powell, 3 De G. & S. 670: IS Jur. 058 ; see, however, Chiestborough v. Wright, 28 Beav. 173. As to the necessity of re-serving the bill aner such an amendment, see Barnw ▼. Ridgway, 1 Sm. & G. App. 18. ' Braithwaite'B Pr. 304 ; and see form of Order, Seton, 1261, No. 1. * Aindie v. Sims, 17 Beay, 174. ' Fkteher v. Moore, 11 Beav. 617 ; 18 Jnr. 1068. * Bocldington v. Woo^ej/, 9 Sim. 380 ; 3 Jnr. 917 ; Breeze v. Englith, 3 Hare, 688. m u 3 i 326 3C THE BILL. praecipe, at any time befbro filing tho replication, and within four weeks ter aftho answer, or tho 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 tho cases provided for by Order 80." This is similar to Order 9, of June, 1853, s. 12, under which the following case was decided ; a bill was filed against three defendants, A., B., and C, one of whom, C, w^^ out of tho Province at the time. An order was obtained for lea jerveC.by substitutional service on A. and B. for the purpose of a motion for injunction. A. and B. answered the bill, but C. did not : tho bill was then amended, and notice of motion for injunction served on A. and B. for themselves, and together with tho bill on them for C, under tho order for service. After the motion was disposed of, tho plaintiff to(jk out an order, dis- missing the bill against A. and B., and on tho same day an order to amend, under which a re-engrossment of tho bill was filed, and served personally on C. This order to amend was styled in tho original suit, and worded to amend the " office copies " of the " defendants." Meld, that it was a second order to amend after answer, within the meaning of Oi*der 9, June 1853, sec. 12 ; and it was on the application of C, dis- charged as irregular, with costs. * After replication had ^en filed, tho plaintiff served a notice to amend his bill by adding partit t raised uo new issues. It was held that the plaintiff might amend his ^..A by adding a defendant, and making tho amendment, set out in his notice of motion. For this pm-pose it was considered not necessary to withdraw the repli- cation. To do so is necessary only that the plaintiff may reply de novo to the answers of the new defendant, and in this case, no new issue was raised. It has always been the practice to permit a plaintiff to amend for the limited purpose of adding parties without withdrawing his replicatioi*.' The plaintiffs filed their bill to impeach a conveyance of lands in it to the wife of one of the defendants : in describing the lands by metes and bounds, by mistake, only a portion of the lands in it were included, which portion was afterwards lost to the parties by being sold under a power contained in a mortgage. Under these circumstances a motion for leave to amend the bill by inserting the property in it not included in the former description was granted. =» Where tho state of facts made by an original bill does not exist when the defendant answers, the plaintiff cannot amend so as to bring in other facts to keep the bill alive, but must file a new bill.* On a motion to take a bill off the files for irregularity, the description of the plaintiff being omitted, leave was > Kemp V. Janet, 1 Cham. B. 374. a Johrum v. Cowan, 3 Cham. B. 13 ; citing BrattU t. Watterman, 4 Sim. 136 ; Brian v. Wiutel, IS Jar. 446. * Waliaee v. Ford, 1 Cham. B. 287. * City Banky.Am»dm,'l V.O.L. J. 9I9S. AMENDING THE BILL. 327 given to amend on payment of costs.' In a suit instituted by an administrator with the will annexed upon a mortgage, the defendant, prcxluced a ^release for the mortgage money given by this lostat-n in his lifetime ; thoroforo the plaintiff sought to bo allowed to proceed against the defendant as a creditor of the estate, but as this would involve such an amendment as would create an entirely different record, the Coui't rol\i8ed such permission and dismissed the bill with costs. ^ Whoro the plaintiffs solicitor absconded before t^e time to amend the hill, as of course, had expired, and his departure was not known to the plaintiff till afterwards, and duo diligence appeared to have been used hy the plaintiff to proceed with the cause after becoming acquainted with such departure, th ' ourt granted leave to amend on payment of costs.^ The Court r< [used to give special leave to amend by introducing new matter whore the matter of the proposed amendment could be proved under the pleading without such amendment.* • . A voluntary answer is deemed sufficient as soon as it is put in ; and therefore in that case, the period of four weeks commences to run as soon as it is tiled.* In computing the period for ;> nending or obtaining orders for leave to amend bills, the times of vacation aro not to be reckoned »• It will bo convenient here to state the different times of' vacation. Order 421, of the Con. G. Orders provides that *' The long vacation is to commence on the Ist day of July, and to terminate on the 21st day of August in every year." Order 422, that "The Christmas vacation is to commence on the 24th day of December in every year, and termi- nate on the 6th day of the following month of January." Order 423, that " The days of the commencement and termination of each vacation, shall be included in and reckoned part of the vacation." Order 424, that " The offices of the Court shall be open on every day in the year, except during vacation, and on Sundays, New Year's Day, Good Friday, Easter Monday, Christmas Day, the days appointed for the celebration of the birthday of Her Majesty, and Her Eoyal Successors, and any day appointed by proclamation for a General Fast, or Thanksgiving." Order 425, declares that " During vacation, the Coui't will not sit, and the offices thereof are respectively to be closed ; but the offices of the Eegistrar, and Clerk of Records and Writs, are to be open for all purposes of making applications for injunctions; and from ten o'clock in the forenoon till ' HiU V. Sr Ouire, Cooper's Dig. 41. ' Bennett v. Crosthwaite, 9 Grant. 422. * ' Carney v. Boullon, 1 Grant. 428. ♦ mUmott V. Boultm, 1 Grant. 479. » Badgers v. Fryer, 3 W. B. 67 ; S Eq. Rep. 258, V. C. K. • Onr Order 408. jvir I I . 328 THE BILL. twelve o'clock noon, each day, for such proceedings, as do not require the attendance of the opposite party." And by Order 408, it is provided that " The time of vacation is not to bo reckoned in the computation of the times appointed or allowed for the following purposes : I. Answering either an original or amended bill. II. Amending or obtaining orders for leave to amend bills: III. Setting down demurrers : IV. Filing replications, or setting down causes under the directions of Order 152, Order 153, Order 154, or Order 155 :— V. Master's reports becoming absolute : ., , , • , ;,, VI. Moving to discharge an order of revivor : , - ■ j ' ' Vn. Moving to add to, vary, or set aside a decree, by any party served therewith." . v :■ • , The days of the commencement and termination of each vacation are included in and reckoned part of such vacation.' When the bill ha« been once amended after answer, under an order of course, the plaintiff is not, except for the purpose of rectifying clerical errors in names, dates, or snms,^ or of adding part.' , ^ entitled to another order of course, giving him leave to amend his bii. ' and this applies, notwithstanding that some of the defendants may answer subsequently to the date of the amendment,* and that those defendants who have already answered consent to the application for the order. « For the purpose of determining whether an order of course to amend can be obtained, an answer held to be insufficient, or the insufficiency of which is admitted by the defendant, must be considered as no answer; and consequently, an order to amend after such insufficient answer, or after a demurrer or plea oveiTuled,' isof course, anddoesnot precludeihe plaintiif from obtaining a further order of coui'se for the amendment of his bill, after a sufficient answer has been put in.^ It must, however, be recollected that an answer is deemed sufficient until it has been held insufficient; and further, that an amendment of the bill, made previously to the answer being held insufficient, operates as an admission of the sufficiency of the answer ; consequently, however insufficient an answer > Ord. 433. » Ord. 80. » AnU. * Ord, 81. • Attomev-Gmeralv. NethereoaU^'Si. & C. 604'; IJur. 636; Duncoinbe v. Leteit, 10 Beav. S73; WitUhrop V. Murray;,! Haro, IfK) ; 14 Jur. 302. . * BatnbHgge v. BaddeUy, 12 Beav. 163 : 13 Jur. 997. 1 Bat pending an appeal, an order or course, after a demurrer overruled, la irretralar : AinAit v. It would seem, that if the motion had been set down for hearing, an order of course would have been irregular.^ After the evidence is closed, the bill cannot be amended in any other respect than by adding parties ; and no new allegation can be intro- duced, or material fact put in issue, which was not so before. ^ And where a plaintiff, by a false suggestion that the cause was at issue only, had obtained an order for liberty to amend his bill, by the addition of a prayer which had been accidentally omitted, the order was discharged, upon the application of the defendant at the opening of the cause, when it came on for hearing.* It is said* that, after publication has passed, (that is after the evidence is closed,) there is no instance of a plaintiff obtaining an order to amend, without withdrawing his replication. The observation, how- ever, appears to be a mere dictum, and it certainly cannot apply to cases where the amendment is merely by adding parties. In Hdbergham v. Vincent,'^ Lord Thurlow intimated an opinion, that after a decree had been made, passed and entered, without bringing before the Court a personal representative who had become so after the bill was filed, he might be added by amendment, and that a motion for the purpose would be regular, provided it was only for the purpose of making him a witness to what was done in the Master's office ; but that, if there was anything in the decree affecting him in the way of an order to pay, such an order would be out of the power of the Court. Where it is intended to amend a bill after replication filed, by the addition of new facts or charges, the proper course is to apply for leave to withdraw the replication and amend ; and it seems that an oi-der of this description may be obtained, upon an application in Chambers supported by proper affidavits, at any time before the closing of the evidence.' The order may be made without prejudice to the evidence already gone into being used.^ Sometimes the Court, at the hearing, will order a cause to stand over, with liberty to the plaintiff to perfect his case by amendment, upon his paying the costs of the day.* Thus, as we have seen, if, at the hearing, the record appears to be defective for want of proper parties, the Court will allow the cause to stand over, for the plaintiff to amend his bill by > GiU V. Bayner, 1 K. & J. 306 ; and see ante. s Ibid, : Goodwin v. Goodwin, 3 Atk. 370. A motion for a decree would fur this purpose, It is ap- preliended, be conetdered a hearing of the cause. » Goodwin v. Goodwin, 3 Atk. 370; MilUgan v. MtcheU, 1 M. & C. 433,442 ; Thompson \..Judqe,i Drew. 414; Horton v. Brocklehurst, 29 Beav. 608; Forba v. Stevens, 10 Jur. N. 8. 861, V.C.W.; but see S. C. 4 N. R. 886, L.JJ. • Harding v. Cox, 8 Atk. 683. • 1 Atki 61. • 1 Vee. J. 68 ; see, however, 1 0. P. Coop. t. Cott. 40, n. ^ Horton v. Brocklehurst, 29 Bear. 603 ; Champneys v. Buchan, 3 Drew. 6. ■ Bicardo t. Cooper, cited Beton, 1263. • This may be done when the caaso is heard on motion for decree : Thomas T. Bernard, 7 W. R' 271 may be at ,V;O.K AMENDING THE BILL. 331 adding parties ; ' or, where the parties are too numerous to be brought before the Court, to alter the form of the bill, by making it a bill by the plaintiffs, on behalf of themselves and all others of the same class.' This practice is not confined to amendment, by adding parties : it will be extended to permit the plaintiff to show why he cannot bring the necessary parties before the Court. ^ And if the record is defective by reason of a misjoinder of plaintiffs, the Court may direct such amend- ments as may be necessary, in order to grant such relief as any of the plaintiffs may be entitled to, and at the hearing, before sueh amend- ments are made, treat any of the plaintiffs as if he were a defendant.* And so, as wo have seen,* the Court will sometimes, at the hearing, permit the prayer of the bill to be amended, so as to make it more con- sistent with the case made by the plaintiff than the one he has already introduced. And where a plaintiff had amended his bill, and by acci- dent had omitted to insert in the amended bill the prayer for relief, although it was in the original bill, the Court put off the cause, in order that the plaintiff might have an opportunity to re-amend his bill by inserting it. • Usually, amendments are allowed at the hearing only for the pur- pose of making the record complete as to parties, or adapting the prayer to the case made by the bill.' Upon the question of allowing amend- ments for other purposes at the hearing, Sir George Turner, L. J., in the case of Lord Darnley v. The London, Chatham and Dover Bailway Company,^ observed: "It is impossible to lay down any general rule; all depends upon the circumstances ; but, speaking generally, I should say that leave should be given when the matters proposed to be intro- duced are connected with the matters in issue, but should be refuse ' when it is not so."» Thus, where a matter has not been put in issu , with sufficient precision, the Court has, upon hearing the cause, given the plaintiff liberty to amend the bill for the purpose of making the necessary alteration." ' Anit. And see Leyland v. Leyland, 10 W. R. 149, V. C. K. ' Ante ; and see Gioatkin v. Campbell, 1 Jur. N. 8. ISl, V. C. W. ' MiUigan v. MitcheU, 1 M. & C. 511, 515 ; Gibson v. Ingo, 5 Haro, 156. ' 15 & 16 Vie. c. 86, s. 49 ; ante, and see Lee v. Blackstone, Seton, 1113, No. 2. Sec our Orders 68, 64, 65, taken bom this Statute. » Ante. • Harding v. Cox, 3 Atk. 583. ' Watts \. Hyde, 2 PhU. 406, 411 : 11 Jur. 979 ; and see Bellamy v. S(a>ine, 2 Phil. 425, 447. • » Jur.N. S. 462, i«J: 11 W. R. .338, 391; and see Ooesop v. Wright, 9 Jur. N. 8. 592: 11 W. R. 632, V. C. K. • In Walker v. Armstrong, 8 De O. M. & G. 631 : 2 Jur. N. 8. 969, however, the L. JJ. allowed a bill to be amended at the hearing, by raising an entirely new case: viz., the rectiflcationofa deed. '» Ld. Red. 326; Filkin v. Hill, 4 Bro. P. C. Ed. Toml. 640; and see observations of L. J. Turner on this case, in Lord Darnley v. London, Chatham and Dover Bailway Company, 9 Jur. N. 8. 462 : 11 W. R. 891 ; see also Watts v. Lord EqUnton, 1 0. P. Coop. t. Cott. m\ Knox t. Gve, 9 Jnr. N. S. 1277, V. C. W. : 12 W. R. 1125, L.JJ. ; Forbes v. Stewns, 10 Jur. N. 8. 861, V. C. W.: 4 N. R. 386, L.JJ. ; Mrth v. Kidkv, ib. 415, L.JJ. For form of orders to amend at the hear- ing, see Seton, 1118, Nos. i, 2 : and B<;e ib. 1114-1116. ^'i 332 TEH BILLi Amendments may be made at the hearing of causes, under the new practice as at nisi prius. ' An application to amend at a lato stage of the cause (after the hearing) cannot be granted if it ap^jcars that such amendment will be attended with any risk of doing injustice, notwith- standing the practice established by Order 9, sec. 14 of 1853." The defendant, by his answer, set up a compromise and settlement of the plaintiffs claim, and proved the same at the hearing, whereupon the plaintiff asked liberty to amend for the purpose of impeaching this settlement, the Court granted the leave upon payment of costs, but without the right to use again the evidence which had been taken in the cause. 3 Wherever improper submissions have been made in a bill on behalf of infants, the Court will, at the hearing, order that the bill shall be amended, by striking out the submission.* Upon the same principle where an infant heir-at-law had been made a co-plaintiff, Lord Eedes- dale ordered the cause to stand over, with liberty to the plaintiff to amend his bill, by making the heir-at-law a defendant;* and where a matter has not been put, by the bill, properly in issue, to the prejudice of an infant, the Coui't has generally ordered the bill to be amended/ The Court has even gone to the extent of allowing the plaintiffs, at the hearing of an appeal, to amend their bill, by converting it from a bill into an information and bill, or information only.' But, although the Court will sometimes, at the hearing, allow the cause to stand over, with liberty for the plaintiff to amend his bill, the plain- tiff ought to bo careful, before the cause comes on, to have the record in a proper state, so as to enable' the court to make a complete decree: for the plaintiff himself cannot, when the cause comes on for hearing (unless under particular circumstances, or with the consent of the defen- dant,) obtain leave to amend his bill, even upon the usual terms of paying the costs of the day ; and if a decree were to be obtained upon pleadings which are defective in a material point, it would afterwards be liable to be set aside fer error. " It frequently happens that, upon the argument of a demurrer, the Court, where the ground for demurring can be removed by amendment, has, in order to avoid putting the plaintiff to the expense of filing a new ■ Fraser v. Rodney, 11 Grant, 436 ; and Bee Street v. Hogeboom, 3 Grant, 138. • Aitchlson V. Coombs, 6 Grant. 648. » M^lntyre v. Cameron, 18 Grant, 476. « 8erU V. St. Eloy, 2 P. Wme. 886. ante. • Plunkett V. Joice, 3 Sch. & Lef. 159. • Ld. Bed. 827. ^ PreHdent qfSt. Mary Magdahn College v. Sibthorpe, 1 Rues, 164: ante. • Wyatt't P. B. S99. As to obtaining leave to amend at ttie hearinic of an interlocutory applicttion Bee Barnett,y. JVoMe, IJ. A W. XST ; Pare v. Clegg, 7 Jar. N. S. 1186 : W. R. 216, M. B. '■! "ffWfff AMENDIMa THE BILL. 333 bill, instead of deciding upon the demurrer, given the plaintiff liberty to amend his bill, on payment of the costs incurred by the defendant : because, after a demurrer allowed to the whole bill, the bill is so com- pletely out of Court that no amendment can take place : * and where the demurrer is for want of parties, the Court, in general, annexes to the order allowing the demurrer a direction that the plaintiff shall be at liberty to amend his bill by adding parties thereto. Where, previously to the filing of a general demurrer, a notice of motion for an injunction had been served, leave was given, on allowing the demurrer, to amend within ten days, without prejudice to the notice of motion.^ Where, by an order allowing a demurrer, leave was given to amend the bill, and the plaintiff afterwards neglects to amend, the proper course for the defendant to take in such a case, is to move that the plaintiff do amend within a given time, otherwise that the order to amend may be discharged, and the demurrer allowed. ^ Where ik plaintiff, after demurrer, desired to amend by adding a judgment creditor, who had assigned his claim to the plaintiff as a party defen- dant, leave was given for that purpose, dispensing with service on the defendants already before the Court.* The Court, in allowing a plea, frequently gives leave to amend :« it must not, however, be understood that this is by any means a matter ofcom'se, even where the plea covers only part of the bill.« Leave to amend has also been given where a plea was overruled, with leave to plead DoUy V. ChalUn, uM mp. : BcdnMgge v. Saddeky, IS Bear. 162, 164: 18 Jar. 907. ' See Pottt V. WMtmore, 10 Be*v. ITT, 179. ' Bowen t. TVner, 1 Cham. K. 868. *J)mtgaay. miftum, 1 Cham. R. 166. "Reglatrar," in this caae matt not be read •* Clerk of Beoorde and Writs." 336 THE BILt. It may here be mentioned, that Order 305 provides that " It shall be competent for a Local Master , upon disposing of applications made to him under Order 36 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." In computing the time for amending the bill, the times of vacation ai-e not to be reckoned : ' if, therefore, the time would expire in vacation and it is intended to deprive the plaintiff of this advantage, the order should be so framed as to direct the amendment to be made on or before some specified day. When an order to amend has been irregularly made, ^the defendant may move on notice to discharge it;'' it will, however be considered as v^lid until it has been discharged ;3 and the irregularity will be waived if the defendant accept costs under it.* An order to amend, whether of course or special, should be served without delay, on such of the defendants as have appeared to the bill, either in person or by their solicitors : as the order only operates from the time of service.' If the amendments extend, in any one place to 180 words, or two folios," or if the bill has been so often amended that the amendment to be inserted cannot be interlined on the record, or is so considerable as to blot or deface it, a reprint of the bill will be necessary.' The draft of an amended information, or the reprint, if there be one, must be signed by the Attorney-General ; * otherwise, the defendant may move that it be taken off the file." Before signing the amended infor- mation, the Attorney-General requires a certificate from the connsel who settled it that the amendments are proper for his sanction. The same rules, as regards reprinting, apply to informations as to bills. If a reprint of a bill is not required, the Eecord and Writ Clerk will insert the amendments in the record, on the draft amended bill, being left with him, together with the order directing the amendments, and aproecipe; and the draft and order will be afterwards returned on apf>li- > Ord. 408. • Fotts V. Whiimore, 10 Beav. 177: HorOey v. Fawcett, ib. 191 ; Peile v. Stoddart, 11 ib. 591; Bah- brigge v. Baddeley, IS tb. 162: Bennett v. Honeywood, 1 W. B. 490, V.C.K. » Blako V. Blake, 7 Beav. 614 ; Chuck v. Gremer, 2 Phil. 118 ; C. P. Coop. t. Cott. 838. ♦ Tarleton v. Dyer, 1 R. & M. 1, 6 ; King qf Spain v. Hullet, ibid. 7, n. ; eee also Kendell v. Btcktlt, 1 Buss. 1C2; Bramaton v. Carter, 2 Sim. 4£8. • PHce v. Webb, 3 Hare, 615. * A folio for this purpose is ninety words ; Braithwaite'a Pr. 806, n. f av<«9, 8 De O M. & 0. 240 ; 17 Jur. 685. • Bratthwaite'B Pr. 26, 809. * Attomey-Generalion. Where a reprint is necessary, the amended bill must be print- ed and filed in the manner before explained in treating of original bills ; and a like fee is payable on filing the amended bill. The order to Amend must be produced at the time the reprint is filed. The record of the bill, when amended, is marked with the date of the Glider, and the day on which the amendment is made^ ; and an entry of the amendment, and of the date of making it, and of the order, is made in the Becord and "Writ Clerk's Book ; and the amended bill is deemed to be filed at and from the date of making the amendment. The like course is pursued, where the bill requires to be re-amended. Where the order to amend is made upon payment of costs, or where, by the course of the Com-t, fixed costs are payable on amendment,' such costs should bo paid or tendered before any further proceedings are had : otherwise, the defendant may apply to the Court to stay such proceedings until th6 plaintiff has fulfilled the condition, by making the required payment." If the plaintiff amends his bill after he has obtained an injunction, it is usual, although not indispensable, for the order giving him liberty to amend, to be expressed to bo "without prejudice to the injunction ;" and the order of course to amend may bo obtained in this form.* Where however, an injunction had been obtained until answer or further order, in a suit by a sole plaintiff, it was held that the injunction was dissolved by adding a co-plaintiff, under an order to amend in which those words were not inserted.^ Where the plaintiff has obtained an injunction, and afterwards amended his bill, but without materially changing the allegations therein, it was lield not to bo a waiver of the injunction.® Amend- ments of a material character will not be allowed, without preju- dice to a pending motion for injunction.'' After service of an in- junction, the plaintiff amended his bill and added a new defendant, who was a mere trustee for the plaintiff, without, however, altering tfie frame of the bill or prayer. Subsequently to the amendment, the de- ^ Thus : Amended — day of , 180—, by order dated day of , 1S6— . '■' Ante. ' Breeze v. EnqlislC 2 Hare, 638. The coats of a demurrer prepared, but not filed at the time of amending the bill, will be costs in the cause : Jiainbrigije v. Moss, 3 K. & J. 63 : 8 Jar. N. 8. 107. The costg are usually paid at the time the order to amend is served. * Magon V. Murray, 2 Dictc.586; Wdrburton v. London and BlackwaU Railway Company, 3 Bear. 253 ; Woodryffe v. Daniel, 9 Sim. 410 . see Kennedy v. Lewis. 14 Jur. 166 ; Seton, 878, V. C. K. B. ; see also Ferrand v. Earner, 4 M. & C 143, 146 ; 8 Jur. 236; Pratt v. Archer, 1 8. & S. 488 : Ptck&r- ing T. Hanson, 2 Sim. 488. * Momey-QtMrai v. Marsh, 16 Sim. S73 ; 18 Jur. 817 ; and see Sharp v. Ashton, 8 V. Ai B. 144 ; Eing V. Turner, 6 Mad. 265. * MeDonna y McKay, 2 Cham. B. 14. ' Daty V. Davy, 2 Cham. R. 81. I "M i ^m- I 838 THS BILL. fbndant committed a breach of the injunction, and the plaintiff moved to commit the defendant; held, that the amendment "was not a waiver of the injunction.* Where the time for amending the bill as of course, has not elapsed, an order to amend, without prejudice to an injunction, is as of course, and obtainable on praecipe : it is unnecessary to apply in Chambers for it.' Where a motion for injunction stood over, and before it was brought on, the plaintiff amended his bill by adding par- ties necessary to the suit, for the purpose of obtaining the relief sought thereby, and in the absence of whom such relief would not have been granted, and again brought on the motion without giving a fresh notice, the Court refused to hear the motion on this objection being taken. > A writ of ne exeat regno is not lost by a subsequent amendment of the bill ; it is, therefore, unnecessary that the order should be expressed to be without prejudice to the writ.* Whore a motion for an injunction had been, by arrangement, turned into a motion for decree, times being fixed for the filing of afiidavits on both sides, and the defendant undertaking not to do certain specified acts until the hearing, it was held, that the plaintiff, by amending his bill after the time fixed for filing his affidavits, broke the terms of the arrangement, and the defendant was accordingly discharged from his undertaking.* If the 2)laintiff amends his bill after he has given a notice of motion for an injunction," or for a receiver,' he thereby waives the notice ; and must pay the defendant's costs of the motion. » Where after notice of motion for an injunction hod been served, a general demurrer to the bill was allowed, leave was given to amend, without prejudice to the notice of motion." Where after serving a notice of motion for injunction, and before the motion is made, the plaintiff amends his bill : such amendment is an answer to the motion.^" /The amendment of the bill, even for the purpose of rectifying a cleri- cal error, renders a previous order to take the bill pro confesso inopera- » McDonnell v. McKay, 13 Grant 414. -^ » JPpow V. iifa)<, 1 Cham. R. 867. ' * Westacott v. Oockerline, 13 Grant 169. * Grant v. Grant, 5 Raw. 189. * Clark V. Clark, 18 W. R. 188, V. O. W. -, 1W.B.J • Martin v. Futt, 8 Sim. 199 ; Oouthtoatte v. Sippm, 1 Bear. 64 ; Monypmny r. • V. C. Ix. » Smith V. Dixon, « W. B. 984, V, C. K. • Monypenny v. , vU sup. ; London and BlackwaU SaUway Company r. Th» Umthom Board (If Workt, » K. A J. lis ; Smith V. Dixon, ubt sup. • Sawlings t. Lambert, IJ. H. 458; and lee Harding t. THngey, 10 Jar. N. 8. STS : U W. B. lOSr » MtDonneU ▼. SU-set, IS Grant 168. tive> : unlesi tained undei Where the the dcfendan without preji has been tain order pro con) one to have g instance, will the order j3ro i If the plaini to change his ( amendments i ed by the ord< plaintiff, that amendments n state; and (ha occasioned by or to place the that he would '. dismissed his ( where a plainti bailiff or agent him upon that try ^vhether th and the jury fir Jng the mortga, prayer for a foi ed bill might b was entitled to have been put and made an or «et down for he taken off the fil * yftightman v. Poi ' Btrchmer v. Bens 'SutUn V.Smith,] «-8.864. Por^" ^f^tthy. Smith, «er, Men r! , gwjwiwherei rf -8 t AMBNDINO TBI BILL. 33» tive* : unless the amendmeiit was made in pursuance of an order ob> tained under No. 82 of our Con. G. Orders. Where the plaintifif had obtained an order pro confeaao against one of the defendants, and afterwards applied to amend, by adding parties without prejudice, the motion was refused.* Where an order to amend has been taken, but through inadvertence, not without prejudice to an order j9ro confess previously obtained, the Court, if the case is a proper one tp have granted an order to amend without prejudice in the first instance, will grant such an order nunc fro tunc, so as thereby to revive the order pro confesso.^ If the plaintiff takes advantage of an order to amend, so as entirely to change his case, and to make the bill a perfectly new one, or if the amendments introduced into the bill are not, in other respects, warrant* od by the order to amend, the defendant may move, on notice to the plaintiff, that the amended bill may be taken off the file, or that the amendments may be struck out, and the record restored to its original state ; and that the plaintiff may be ordered to pay the defendant's costs occasioned by the amendment, and of and consequent on the application, or to place the defendant in the same position with regards to costs that he would have been in if the plaintiff, instead of amending, had dismissed his original bill with costs, and filed a new one.* Thus, where a plaintiff or.'ginally filed his bill against the defendant as his bailiff or agent, in respc t of certain farms, praying an account against him upon that footing, and afterwards, upon an issue being directed to try'^hether the plaintiff was or' was not a mortgagee of such farms, and the jury finding that he was, the plaintiff amended his bill by stat- ing the mortgage, and converting his former prayer for relief into a prayer for a foreclosure : upon the defendant's moving that the amend- ed bill might be taken off the file, Lord Eldon held, that the defendant was entitled to all the costs sustained by him, be3'ond what he would have been put to if the bill had been originally a bill for a foreclosure, and made an order accordingly : although, as the amended bill had been set down for hearing, he did not go the length of ordering it to b© taken off the file.* » Weightman v. Powell, 3 De O. & S. 570 : 1? J ur. 968. ' Btrchmer v, Benson, 1 Grant 98. * SuUan T. Smith, 1 Cham. R. 990 * BvUoek T. Perkifu, 1 Dick. 110, 112; Dent t. Wardel, ib. 839 ; Smith v. Smith, O. Coop. 141 ; Mttvor V. Dry, S S. & S. 118, 116 ; AttomegOenerai t. Cmwr, 8 M. & G. 868, S63 : 1 Jur. 790 ; Mien V. aprltuf, 83 Beav. 616 ; ITiomas v. Bernard, 7 W. R. 971, V, C. K. ; Eagle ▼. Le Breton, cited Seton, 1&4 ; and see Ain»li« t. 8im$. 17 Beav. 174 ; Parker t. Nickton, 4 Glff. 811 : 9 Jar. V. 8. 864. For form of ord'>r, see Seton, 1868, No. 10. * Smith T. Smith, uM m{p. ; and see Mavor t. Dry, and Parker r. Niekeon, vbi tup ; see, how- ever, AlUn ▼. Spring, uM tup., where such a motion was reAised ; and It seems it will only be Kianted where the case made Is entirely new : Thomai t. Bernard, ubi tup. The defendant woold not enter into evidence, aa to any eharges stmok out by amendment ; Btewart v. 'M«wiir(,8SBeaT.«n. J- Sftf HIT* i 340 THE BILL. Where after tbo time for amendment ns of course, an order is ob- tained to amend, by adding a party " with apt woixls, to charge him or otherwiMO, as plaintiff shall be advised," the plaintiflT is not at liberty to moke any amendment whatever except such ns is required for the pnr- pose of introducing the additional party." A redemption suit having «tood over at the hearing, with leave to amend, by adding parties as plaintiffs or defendants, the plainLiif added the new parties as co-plain- tiffs, and amended that part of the praj'-er of the bill, which asked that the plaintiffs might be directed to surrender and deliver up possession of the mortgaged premises to one of the then plaintiffs, so that in the amended bill it ran thus: — that the defendants might bo directed to surrender and to convey or assig7i, for the residue of the term therein created as aforesaid, and deliver up possession of the mortgaged promises to all the plaintiffs to the amended bill. Meld, that this amendment was not so imconnected with the order as to render a motion to expunge the -same proper. When a cause stands over with leave to amend, by adding parties, the plaintiff has no right to introduce any amendment, though immaterial, that is unconnected with such leave. " Where a cause stands over at the hearing, for the purpose of adding parties, the plain- tiff has not the right to amend, by changing the venue ; but a defendant having delayed unreasonably in making his application, a motion to take the amended bill off the ^le for irregularity in having been thus amended, was refused without costs. ^ Upon the same principle, where a plaintiff takes advantage of an order to amend, to strike out a portion of his bill : though ho docs not alter the nature of it, yet, if expenses have been occasioned to the de- fendant by the part which has been struck out, which, in consequence of its having been so struck out, could not be awarded to liim, at the hearing, the Court will, upon motion, with notice, order such costs to be taxed and paid to the defendant. Thus, where a plaintiff filed a bill which was of great length, and prayed relief in a variety of matters, to which the defendants put in answers, which were also of great length, after which the plaintiff, by virtue of a common cder "nend, amend- ed his bill and filed a new engrossment, wli '■ - s very short, and con- fined to one only of the objects of relief .d by the Iginal bill; upon the defendants moving that the oi to amend iuight be dis- charged, and the bill dismissed with costs, or th' the jjlaintiff might pay to them the costs of putting in their answ*. r to so mucli of the -original bill as did not relate to the relief prayed by the amcndod bi'' > Oilktpie T. Gfover, i Grant 190. 3 CTUsholm V. Sheldon, 1 arant S94. ^ Fenion v. Grogs, 1 Cham. R. SS. it was before 6 AUJCNDINQ TUK BILL. 341 Lord Korthington dircctod Ihnt tho oi'dor for amonding tlio bill Bbould stand, btit tbat tho plaintiff should pay to tho dofondunts tho further sum of fivo ])0unds, boyond tho Humof twenty shillings mentioned in tho order.' And whoro a cauHc, at tho hearing, was ordered to stand over, vnth libert}- to tho plaintiff to amend by adding parties, and tho plain* tiif took advantage of that order to Ktriko out several charges which bad necessarily led tho defendant into tho examination of witnesses, and to add others, tho Court, upon motion, ordered that part of tho amend- ment to be discharged, and tho plaintiff's bill to bo restored to what it was before : in order that, at tho hearing, tho costs of those parts of tho bill which had been abartdoned by tho plaintiff might bo awarded to tho defendant.' Whore, however, a bill was filed for a foreclosure of a mortgage and for a transfer of a sum of stock, and, on the answer being filed, disclosures were made which rendered it udvisablo to amend tho bill by striking out all that related to the mortgage, whereby nearly one-half of the bill and answer was rendered useless. Sir Lancelot Shad- well, V. C, refused to order, on motion, tho plaintiff to pay tho defend- ant's costs occasioned by tho amendment, as it appeared that tho amend- ment was made under tho advice of counsel, and not for tho purpose of vexation or oppression. » The fact of an in'ogular amendment having been made, under a com- mon oi-dcr to amend, will not bo a sufficient reason for ordering tho bill to bo taken off tho file, if the record can bo restored to the state in which it was before such irregular amendment was made.'' CUAPTEE VII. : .; •■i-,r%'li Section I. — Proceedings by Service of Notice of the Decree. The practice of serving, with notice of the decree, persons who are not named as parties on the record, was introduced into England l)y ' Dent T. Warde!, 1 Dick. 889. ' AtOoet V. Perkins, 1 DJck. 110 ; and see Strickland v. Strickland, 3 Boav. 242 ; Leather Cloth Company v. Bressty, 8 Glff. 474, 494 : 8 Jur. N. S. 425, 439. • Mtmek v. Earl(f TankerviUe, 10 Sim. 2S4 : 8 Jur. 1107. * Mlarney-Oentral v. Cooper, 8 M, & 0. 258. 268 : 1 Jur. 790 ; and sec Aindie v. Sims, 17 Bear. 174 :;■: :'^^E- ^ j'^^'^ 1 '5- 'i ■•[•■t^:fif " wrzm 'JI^H ' w w^ ^ -'^nB W W *' ii^DB S" *Kr '' i'^BB ^^^sl ntHB .^s 342 SSBVIOB OF NOTICS OF THE DKCRKS. the 42nd section of the Chancery Amondmect A.ct, of 1852.' Under the provisions of that section: (1.) Any residuary legatee or next of kin may, without serving the remaining residuary legatees or next of kin, have a decree for the administration of the personal estate of a de- ceased pei-son.' (2.) Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate, di- rected to be sold, may, without serving any other legatee or person in- terested in the proceeds of the estate, have a decre<5 for the administration of the estate of a deceased person.' (3.) Any residuary devisee or heir may, without serving any co-residuary devisee or co-heir, have the like decree.* (4.) Any one of Beveral cestuis que trust under any deed or instrument may, without serving any other of such cestuis que trust, have a decree for the execution of the trusts of the deed or instrument.' (5.) In all cases of suits for the protection of property pending litiga- tion, and in nil cases in the nature of waste, one person may sue on be- half of himself and cf all persons having the same interest." (6. Any execufor, administrator, or trustee may obtain a decree against anyone legatee, next of kin, or cestui que trust for the administration of the estate, or the execution of the trusts.' In all the above cases, the per- sons who, according to the former practice of the Court, w^cre necessary parties, may be served with notice of the decree ; and after such notice shall be bound by the pi'oceedings, in the same manner as if they had been originally made parties to the suit.' ► • ii . ■iU 1:1' The notice of the decree jiust bo served personally, unless otherwise directed ; and where a hus^'and and wife have to be served, the notice must bo served on each, personally, notwithstanding that the suit does not relate to the wife's separate estate, and that they are residing to- gether ; but the Court or Judge will, on a proper case being made, dis- pense with personal ser^ 'v-e.* The process by servi'^e of notice of the decree applies to infants, per- » 16 & 16 vie. c. 80. 9 16 & 16 Vic. c. 88, 8. 43, r. 1 ; a Rule S. * Rule 8. » Rule 4. • Rule 6. "> Rule 6. In all the above cases, tbe Court, if it shall Bce fit, may require any other person to b« made a party to the suit, and may sive the conduct of the suit to such person as it may deem proper, and may make such order m any particular case as it may doem Just for placing tbed^ rendant on the record on the pame footing in ref^ard to costs as other parties having a common interest with him in the matters in question : Rule '.. By rule 9, trustees represent beueficU- ries in certain cases. • Rule 8. It is improper to serve, under tnese provisions, notice of the decree on any o'.' er per- sons than these specified in 16 & 10 Vio c. 86. 8. 43 : Cotyer v. Cblyer, 9 Jur. N. S. 294, V. C, K. The first six rules of our Order 68 are similar to the six rf'erred to as forming part of tbe 4m section of the Imperial Statute. Rule 8 of tbe statute ^i* similar to our Order 60. • Braithwaite'8 Fr. saO, 691. SXRVICK OF NOTICK OF TBS DKGBU. 343 eons of unsound mind not so found by inquisition, and persons out of the jurisdiction. ' In England an application must be made on summons for the direction of the Judge as to the manner of serving notice of the decree on infants^ and persons of unsound mind not so found by inquisition, and persons out of the jurisdiction ; but in this Province, when infants and persons of unsound mind are served under Order 60, they are served in such manner as the Master, before whom the reference is being prosecuted, may direct. Oi*dcr 517 provides that " In the case of uu infant defendant) under " the age of ten years, a copy of the bill of complaint is not to be served "on the infant personally, but is to be delivered to or left at the dwell- " ing house of the person with whom, or under whose care the infant is "residing at the time of the service; and if more defendants than one "under the said age live with, or under the care of the same person, "one copy only is to be served for all such intfint defendants." And Order 523 declares that " Where a person required to bo served with an "office copy of a decree, pursuant to Order 60, is an infant, or a person " of unsound mind not so found by inquisition, the service is to be "oifected upon such person or persons, and in such manner ca the Master "before whom the reference under the OMer is being prosecuted directs." Where the proceedings are being taken under Order 60, the application should be made to the Master ex parte on affidavits shewing as far as the applicant is able : (1.) With respect to infants : The ages of the infants ; whether they have any parents or testamentary guardians, or guardians appointed by the Court of Chancery ; where, and under whose care, the infants are residing ; at whose expense they are maintained, and, in case they have no father or guardian, who are their nearest relations ; and that the parents, guardians, relations, or persons on whom it is proposed to serve tL"^ notice, have no interest in the matters in question, or, if they have, thf nature of such interest, and that it is not adverse to the interests of the infants. (2 ) With respect to persons of un- eound mind not found so by inquisition : Where, and under whoso care, Buch persons are residing, and at whose expense they are maintained ; who are their nearest relations ; and that such relations, or persons, upon whom it is proposed to serve the notice, have no interest in the matters in question, or, if they have, the natur»* of such interest, and that it is not adverse to the interest of the persons of unsound mind. The order is drawn up by the Master, and a copy of such order must iilco be served, at the time of serving the notice of the decree." ■ Chalmers v. LaurU. 10 Hare, App. ?7 ■ 1 W. II. 965 ; Clark v. Clark, 9 Hmo, App. 18, owrgiiMl note : 1 W. a 48 ; Strong v. Moore, 93 L. J. Ch. 917, M . «. » BraithwtHe'i* Pr. 693 ; ituc Seton, 1913. 344 SEBYICE OF NOTIOK OF THE DECREE. In these cases, however, the Master, before proceeding with the en- quiries directed by the Order, must see that a guardian ad litem is ap- pointed for the infant, or person of unsound mind thus served. Order 522 provides that " 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 467, guai-dians ad litem are " to be appointed for them in like manner, as they are now appointed "at any time after bill filed." And it may bo observed in this place,' that, should occasion require, the Master has power to require a guardian a Re Baboock; Moore v. Gould, 1 CUm. B. 233. • Con. Q. 0. 68. ■* Bee ante. irrr I I imVMt«m \ \ SBBVIOB OF NOTICE OF THE DECREE. 847 He should then consider whether the circumstances of the case, and the nature of their interest in the suit, are such as will justify an applica* tion to the Judge to dispense with service on any of them ; or to sanc- tion some special mode of service : as, on one or more for all the mem- bers of a class, or by public advertisement, or throngh the post, or on a aubstitute. An application of this description to the Judge is usually made ex parte, supported by evidence of the facts on which it is founded ; and where a special mode of service is directed, an order is drawn up by the Eegistrar, which will contain a direction that a copy of it shall be served with the notice. Where service is dispensed with, an order to that eifect is drawn up ; and a copy is filed with the Master or Local Master. If service through the post is sanctioned, and no special directions are given as to the mode of authenticating such service, it seems advis- able to enclose the notice in a letter addressed to the person to be served, and to request him to acknowledge, through the post, the receipt of the notice ; and it would be well to enclose a form of acknowledgement for signature. The service, in this case, will be deemed to have been ofl'ected at th^ date of the letter of acknowledgement. ^ The Master to whom the case is referred, will, usually, proceed to give his directions as to the manner in which the decree is to be prose- «ated, notwithstanding evidence is not adduced to satisfy him that all proper parties have been served with notice of it. Indeed, it not unfro* quently happens, that the persons to be served cannot be known till some of the inquiries under the decree have been prosecuted : as where the members constituting a class of residuary legatees, or next of kin, have to be ascertained ; and by directions being obtained for insertion of advertisements for creditors and other claimants to come in, and for the accounts to be brought in, and the inquiries answered, before these class inquiries are entered upon, much time in prosecuting the decree may be saved, without prejudicing persons who may be subsequently served with notice of the decree, and obtain orders to attend the proceedings. As a rule, it is better not to proceed upon any of the enquiries until all the parties have been properly brought into the Master's Office : but where time can be saved, without detri- ment to these absent parties, the Master should proceed. The notice of the decree must be entitled in the cause ; and a memo- randum must be indorsed thereon, giving the person served notice that from the time of service he will be bound by the proceedings in the case, in the same manner as if he had been originally made a party ; and » Bnithwaite'B Pr. BS3. -:liv i < I ■ W-t 348 SXaVICK OF jVOTICB OV THE DECRVS. 1. that ho may, upon giving notice to the plaintiff, have liberty to attend the proceedings, and may, within fourteen days after service, apply to the Court to add to the decree. ' Service of a copy of the decree is regai'ded as sorvito of notice of the decree ; but the copy must bo indorsed in like manner as a notice.^ Tho i^arty served may apply, within fourtoeu days after service, for leave to add to the decree.'^ Such apj)lication isusuall}'' made by notice of motion, which must bo sewed on tho solicitors of all parties to tho cause, and of all persons who have obtained orders to attend. Infants, and persons of unsound mind not so found, attend tho pro- ceedings by their guardians ad litem, vfho are ajipointed in tho same manner as guardians ad litem to answer and defend suits. Where a person served with notice of the docroo, gives notice to tho plaintiff, under Schedule A to Order GO, of his intention to attend the proceedings, no other evidence of service of the notice on hira will be required ; the Master must, however, be satisfied of his identity with the person on whom the notice ought to have been served. If the party served attends, without notifying tho plaintiff, ho will not be allowed his costs of such attendance, without a special order for that purpose ; and it is to be observed, that the order giving a party served with notice of the decree liberty to attend, does not specify at whose costs ho is to attend, but his costs are dealt with at the hearing of tho cause on further consideration ; and it is conceived that, where the Court is of opinion that the interest of tho party in question i» sufficiently protected by the parties named on tho record, or who have already obtained leave to attend tho proceedings, it will refuse to allow him any costs.* A person who has been served with notice of tho decree, and who has given notice of his intention to attend tho proceedings, may, if ag- grieved by any order in the suit, present a petition of rehearing in the usual manner," but if he is unable to raise the question on tho plead- ings, the proper course for him to pursue is to move, on notice, for leave to file a bill.o » Ord. 60. " Braithwnlte'sPr. 519. * Ord. 60. Where the party to be served is ont of the jurisdiction, an enlarged time may be gl\tin: see Strong v. Moore 82 L. J. Ch. ttl7, M. K. - . . * See Ord, 218 ; Seton 187 ; Stevenson v. Abingto/i, 11 W. R. 936, M. R., as to classes of parties ap- pearins; by different solicitors ; and see Bennett v. Wood, 7 Sim. 622 ; HiUchinon v. Freeman, 4 M. b 0. 4aO : 3 Jur. 694 ; Shuttleworth v. Uowarth, 4 M. & C. 492 : 6 Jur. 2, where persons intervening, who were not made parties because they belonged to a very numerous class, were allowed the same costs as if they had been made parties to the suit. » Ettiaon V. Thomas, 1 De G. J. & S. 13. * KMd V. Cheyne, 18 Jur. 848, V. C. W. SERVICE OF THE COPT OF THE BILL. 849 CHAPTEE VIII. Section 1.— Service of the Copy of the Bill. Formerly, when tho bill was filed, the ordinary course of proceeding iigainst tlie defendants was to sue out and servo a writ of subpoena. This has, however, been abolished. Our Order 8G provides that "In lieu of serving a defendant with a •' subpoena to appear and answer, an office copy of the bill of complaint " is to bo served upon him, with an endorsement thereon, in the form, ^'or to the effect, set forth in schedule C, hereinunder written."' And Order 87, that "Service upon a defendant of an office copy of the bill of *' complaint, is to be effected in the same nfanncr, and shall have tho "same effect as tKo service of a writ of subpoena, to appear and answer, ^' under the former practice : but it shall not be necessary to produce " the original bill." In preparing copies of the bill and making them office copies for service, tho practitioner will observe tho following orders : — Order 402 provides that "Office copies of answers, affidavits, ^' and other proceedings are dispensed with ; and where servico is re«» ''quired, true coj)ies, instead of office copies, are to be served ; but this *' order is not to apply to bills, decrees, or orders, of which office copies " are by tho practice of the Court required to bo served." Oi*der 403 declares that " "N^o more than four copies of any pleading or other pro- " cecding are to be allowed to any party, in a cause or matter, exclu- " sive of of tho draft, but inclusive of copies, to file, copies to servo, " briefs, and any other copies that may be required or made in the progress "of the cause." And Order 404. that "If more than three copies, ox- " elusive of the draft, are required ofar]y pleading or other proceeding, **and the party chooses to have the pleading or proceeding printed, for " the purposes of the suit or matter, ho is, in lieu of all charges for "copies, to be allowed thirty cents per folio of the pleading or proceed- " ing, and his reasonable disbursements of procuring tho same to bo ^'printed." To make the servico of an office copy of a bill on a person, other than the defendant, good service on tho defendant, when no order for substitu- tional service has been obtained, it is not sufficient to show that the person » 8«« Schedole C. nm '■m I 860 SKRYIOE OF THS OOPT OF THI BILL. Berved is a relation of the defendant : he must be actually residing with the defendant, and the service should bo made at the defendant's place of abode.* Where a married woman, who had received an office copy bill and order to answer, separately, by mail, accepted service in writing, and returned the acceptance endorsed on the original order, it was held under the circumstances, to be sufficient service.' Where a husband and wife are defendants, service of a notice of motion for an order pro confes8(y against the husband, upon the wife, will not be good service on the husband, unless made at the dwelling-house of the husband. ^ It may here be noticed that Oi*der 547 provides that "Office copies of " decrees to be served on persons made parties in the Master's office ** may be certified by the Deputy-Eegistrar, at the place whore the "reference is being prosecuted." Where the Attorney-General is served with a bill, there should bo no indorsement upon it. ^ ; , , ,, . When the copies of the bill have been prepared, they are to be made "office copies." This is done in Toronto by the Cleric of Becords and Writs ; in the outer counties by the Deputy-Registrar. The copy is stamped with the seal of the officer with whom the bill is filed, and ho signs his name at the end of the copy : this should be done only after conq^ftuHxig the copy with the filed bill, and the sealing and signing make thev mUot T. Btard, 3 U. C. L. J.. N. S. 333 : S. C. 3 Cham. B. 80. * K«aehi« t. Buchanan, 1 Cooper's 0. A P. B. 44. * Hnoard t. MdgaAaif, 1 Cham. B. 366. 4 Bralthwaite'a Pr. 81. * The member of the ftmily should be an inmate of the house : 089. Ow Order 87. Edgton T. Edffton, 3 De G. & S. SERVICE OF THE COPY OF THE BILL. 351 «gervice, and an affidavit of porsonal service is in such case dispensed <* with." And Oi*der 48 declares that "Admissions and acceptance of "the service of a bill, oi-der, notice of motion or other paper, upon the "opposite solicitor, need not be verified by affidavit." Where a solid* tor accepts service ot an office copy bill of complaint, and gives a writ- ten undertaking to answer the same, or in case of default, that an order fro confesso may be drawn up, the usual two day's notice of motion for that purpose must be given, and may be served on the solicitor.' This case to some extent overrules a previous case,' where it was held that where service of the office copy of a bill was made upon a solicitor acting on behalf oi' several defendants, and such solicitor gave a written undertaking to answer, but afterwads made default in so doing, the bill might be taken pro confesso on an ex parte application. An office copy of the bill had been served on the solicitor of one of the defendants, who gave an undertaking to put in an answer, or in default, that the plain- tiffs might proceed to take the bill pro confesso, without further notice being given of the proceedings : the order was made accordingly.* When an affidavit has been filed with the bill, a copy of such affidavit, but not necessarily an office copy, should be sealed at the Record and Writ Clerks' office, and annexed to, and served with, each copy of the bill sealed there for service.* i Service on a Sunday is not good service.' Service of a copy of the bill is either ordinary, or extraordinary. Ordinary service requires no leave from the Court ; extraortlinary service requires a special order of the Court to render it valid, and is not used except under special circumstances, when the ordinary service cannot be eflfected. When the copy is left at the dwelling-house, it is necessary that it should be the place where the defendant actually resides' ; and the mere leaving the copy at a defendant's ordinary place of business, if he does not reside there, will not be good sei'vice ; and therefore, where, under the old practice, a subpoena, returnable immediately,' was moved for upon affidavit stating that the defendant lived at Epsom, but that he had chambers in the Temple and resided there, Lord Thurlow said, that as it did not appear that his place of abode was in the Temple, he could not make the order. ^ Where, however, a member of the House > Bm V. Hayet, 6 Grant 877. * Shaw V. IdddeU, 4 Grant 863. » Ttterborovgh v. Conger, 1 Cham. R. 18. *AtUe. * Mackntk t. NiehoUm, 19 Yes. 867. * Serrice on the Deputy Governor of a prison was held to be due service on » defendant, a pris- ooer there : Newtnhom v. Ptmberton, 3 Ck>ll. 64 : 9 Jur 687. ' SeeHlnde, 78 • V. Shaw, Hinde, 92. \^■^- m I* 362 SEBTIOE or TUB COPT OF THE BILL. ! of Commons, having a houso at Southampton and no town residence was Bcrvod with a subpoena, returnable immediately, at a fViend'g house in London, with whom ho avos upon a visit, and for default of appear- ance a sequestration had been awarded, Lord Thurlow ref^ised to set Aside the sequestration for iiTOgularity : saying, that he could not sup- pose that the defendant, a Member of Parliament, during the session of Parliament had no town residence, or that the residence above stated should not bo taken as a residence quoad the defendant, whose duty it was to attend, and who actually did attend, the IIou.se.' And so, where a letter missive, and subsequently a subpa;na, had been served at the town residence of a peer during the sitting of Parliament, Lord Thurlow apjjears to have been of oj)inion that it was good" : and whci-o a letter missive, and afterwards a subpoena, had been served at the town residence of a peer, who at the time was abroad, and afterwards an oi*der nisi ibr a sequestration was issued, a motion to discharge the order mst was refused. =• Ordinary service upon an infant defendant, or upon a defendant of weak or unsound mind, not so found by inquisition, is effected in the same manner as upon an adult. * Where a husband and wife are defendants, ordinary service upon tLe husband alone is sufficient.* But if they are living apart, each should be served. If the husband is abroad, or cannot be served, and the sub- ject matter of the suit arises in right of the wife, the plaintiff must ob- tain, on an ex parte motion, supported by affidavits, an order that service upon her may be deemed good service." Service on her alone, in the usual manner, will then be sufficient.'^ If a corporation aggregate be a defendant. Order 91 provides that *' Service of a bill of complaint within the jurisdiction of the Court ^'upon a corporation aggregate, is to bo effected by personal service of *^ an office copy thereof on the Warden, Eeevo, Mayor, or Cleric, in case "of a Municipal Corporation, or on the President, Manager, or other *^ Head Officer, or the Cashiei', Treasurer, or Secretary, at the Head » East India Company v. Jiumbold, Ilil. Term 1781, cited Hinde, 92. " Attorney- General v. Earl qf Stamford, 20ick. 744. » Thomas v. Earl of Jersey, 3 M; & K. 398 ; and see Davidson v. MarclUoness of Hastings, 2 Keen, 609, 513. * See Ord. S17. In Morgan v. Jones, 4 W, K. 381, V. C. W., substituted service on tlie medical offi- cer or keeper of any asylum in wtiich a lunatic was confined, was refused ; personal service if practicable being held necessary ; and see Anon. 3 Jur. N. S. 8:24, Y . C. W. * Gee T. Cottle, 3 M. & 0. 180. The affidavit of service should state that the service was made on on the husband and wife, by serving the husband : Steel v. Parsons, 8 Jur. 641, V. U. K. B. For an order, giving leave to serve husband and wife separately out of the jurisdiction, the fact uf the marriage being in dispute, see Longworth t. BeUatny, cited Seton, 1346. ' * For form of order, see Seton, 1346, No. 9. ' BtU V. Hyde, Free. Oh. 338 ; Dubois v. HoiU, 3 Vem. 618 ; Bunyan v. Mortimer, 6 Had. SW; ud •ee /%»y»ft«r}!• 8KRVI0K OF THE COPY OF THK BILL. 35a »' Office, or at any branch or agency in Ontario, or on any other person "discharging the like duties, in the case of any other corporation." And Order 92, that '• Where a foreign corporation aggregate, defendant " to a bill of complaint has no branch or agency in Ontario, service of "the bill upon such corporation may be eflfected out of the jurisdiction "by personal service of an office copy thereof on the Warden, Reeve, "Mayor, Clerk, President, Manager, or other Head Officer, or on the "Cashier, Treasurer, Manager, or Secretary of such corporation, or " other person discharging the like duties, as in the case of service in "Ontario." Where the business of a Company had practically ceased, but the Com])any had never been dissolved, service was ordered on the lato Chairman and Secretary. ' This order refers to a corporation hav- ing its head office in this Province, and it has boon decided under a simi- lar order (of 17 March, 1857,) that it did not authorize service upon the agents in this Province of a corporation, such as the Bank of Upper Canada, when the Head Office was within the jurisdiction. » If the Head Office of the corporation is situated in this Province, service must be effected there ; if out of the jurisdiction, at any agency. ^ Where a Company is virtually defunct before bill filed, the proper course to effect service is to apply to the Court for an order therefor, otherwise an order ])ro wn/esso cannot bo obtained.* Iftho plaintiff amends his bill, ho must serve an office copy of the amended bill on all the defendants, or, if they have answered, on their solicitors.^ It is, of course, to bo understood, that as to defendants ad- ded by amendment, the bill is to bo treated as an original bill. It may hero be noticed that Order 93 provides that " The service of "a bill within the jurisdiction of the Court is to be of no validity if not " made within twelve weeks after the filing of the bill," and Order 94 that " The service of an amended bill within the jurisdiction of the " Court, upon a party added by amendment, is to be of no validity if " not made within twelve weeks after the amendment." But the times fixed by Orders 93, 94, and 95, within which a bill or amended bill must be served, may bo extended under Order 96, which provides that " Ser- "vicc may bo allowed when made after the periods above limited, upon "its being made to appear, to the satisfaction of the Court, that due " diligence has been used in effecting service." The practioner, how- ■ Gaskell v. Chambers, 26 Beav. a52 : 5 Jur. N. S. 53. » CamiMl V. Taylor, 1 Cham. K. 2. ' Hmland v. Orierson, 5. U. C. L. J. 19. * Furnsss v. Metropolitan Water Co% 1 Cham. R. 369. ' U ie sufficient to serve one copy on each solicitor, notwithstanding he may be concerned for sev- eral defendants. Where, however, a solicitor Is properly concerned as solicitor for one de- fendant, and as agent for another, two copies should be served : Braithwalte's Fr. SOS ; and ib. d> 354 8ERVICB OF THE COPY OF TIIK BILL. ■over, should lose no timo in applying for uUowanco of Korvico under this order, as Order 97 provides that " In coho the application for tho •" allowance of the service is n.ade within four weeks after the servico, " the order need not be served, but the defendant is to have four weeks '* to answer beyond tho time allowed by tho foregoing orders." And Order 98, that '' In case the application is not made within four weeks " after service of tho bill, the order for the allowance of tho sorvioo mny *' be made on such terms as the Court sees fit." Tho Orders 93, 94, and 95, are similar to tho orders of G February, 1865, and it has been decided under them thai tho Court will not gram an order extending tho time for the sevvico of a bill. Tho solicitor must use duo diligence to effect the service, and, after it is effected, must como to the Court to get it allowed if more than the timo given by tho orders of tho 6th of February, 18G5, has elapsed.' Where a bill has been filed, and a lis pendens registered, but no office copy served within the twelve weeks allowed for service hy Oixlor 5of Gth February, 18C5, the bill was ordered to bo dismissed with costs.^" Tho Court will per- mit service of pleadings to bo effected by parties to the suit, and will ullow tho samo fees upon taxation as if served by third persons. » Where the plaintiff is unable to effect ordinary service upon a de- fendant, in tho manner above mentioned, the Court will, in many cases, permit service to be effected upon the defendant himself out of tho jurisdiction, or to be substituted upon his agent within the jurisdiction. Order 99 provides that " Orders for substitutional service of an oflSce '* copy of a bill of complaint may bo obtained in tho same manner, and " in tho same cases, as orders for substitutional service of a subpoena to ^' appear, and answer might have been obtained under the former 2)rac- "tice." Where a plaintiff desires to effect service of tho subpoena by .serving the agont of an absent defendant, ho must show that the party to be served is the agent of the defendant in relation to tho subject- matter of the suit, to such an extent as to satisfy tho Court that tho ac- ceptance of a subpcena by such agent will fall within the authority con- ferred upon him by his principal ; where, therefore, a motion for suoli order was made, grounded on an affidavit which stated that tho agent iit present conducted the defendant's business of land agent, and had " acted for the defendant in i*eference to the mortgage, which was Ihc subject-matter of tho suit" — the application was refused.* The rule • ilunn V. (Uasg, 1 Cham. R. 837. ^ Somerville v. Kerr, 2 Cham. R. 154. 3 JT Clure v. Jones, 6 Grant, 888. ■• Passnio v. XlcoUs, 1 Grant, 130; woA&cq Prentisc v. Brennan, Re Bunker, 2 Grant, 322; Can- iV.fft . Ta>/lor,'2Qnnt,617. NKRVICE OF THE COPT OF THE BILL. 356 allowing substitutional sorvico of a bill upon an attornoy-at-law, applies only to caaos whoi*o the object of the suit is to restrain proceedings at law, not whore any other relief is sought.' The sumo time must bo allowed for answering a bill served by substitutional service as if the sci-vico had been personal." The Act 28 Vic. c. 17 gives the Court larger powers oa to proceedings against absent defendants, whoso rosi- Jcneo js.unknown, and the Court will grant orders for substitutional scn'ico in cases whore it would not under the practice before the Act dispensing with advertising whore it would bo useless." AVhero some, or all of the parties to bo served, are out of tho jurisdijution, substitu- tional service ol'a bill may bo effected on partners or agents, where there IS clear proof of agency with reference to the subject-matter of the suit.* It is not necessary to take out a new onlor for substitutional service on an agent whenever tho original bill is amended.-' On an ajjplication for :m oixicr for substitutional serv' io f a bill of complaint, on its being shown that the defendant could not, without delay and difficulty, bo served personally out of the jurisdiction, he not remaining long at ono place, and that he had a branch business in Toronto, in charge of an ngcnt, tind the subject-matter of tho suit having I'efercnco to such agency, service of tho bill on such agent was directed, and that a copy 1)0 mailed to tho defendant at New York, nine weeks being given to answer." When a defendant, who was made a party in tho suit, in re- spect of a mortgage held by him upon tho lands, which form the sub- ject-matter of the suit, was out of the jurisdiction , but, it appearing that his solicitor had always had tho mortgage in his possession, substitu- tional service upon such solicitor was allowed.' Substitutional service will not bo allowed under 28 Vic. c. 18 (1865) unless it is shown that it would bo very expensive or very difficult to oflfect a service. « Tho principle upon which the Court acts in directing substituted ser- vice, is clearly enunciated by Lord Cranworth, C, in the case of Hope y,Hope:° in which case ho says, that where there is an agent in thi.s country managing 'all tho affairs of a defendant who is abroad, and reg- ularly communicating with him upon his affairs, or where ho ha« an agent hero specially managing tho particular matter involved in tho ' Cmrforil V. Cooke, 1 Cham. R. 5T. ' CVirfMonft V. Sager, 1 Cbam. R. 201. ■ Cooiier V. Lane, 1 Cham. R. 863. ' ' AMn. V. Pyp€,\ 5. U. C. L. J. 118. ^ Ralney v. Dickson, 3. U. C. L. J. ICJJ. ' C'Mjjpto V. Yorston, 2 Cham. R. 81. ' Ymng v. Wilson, 2 Cham. R. 50. ' Penrmn v. Camjibell, 2 Cham. R. 25; and see Peel v. Kingsmlll, 2 Grant, 2T2; liolph v. Cakouii, 2 Oram, 023; Leggey. Winstanlet/,\iOTani:, lOtJ. 'in«G.3I. &G..3-2S. I 1^ \ ■ 356 SERVICE OP THE COPY OF THE BILL. suit, tho Court has felt that it might safely allow service upon the agent to be deemed good service upon the person abroad : because the infer- ence was iiTesistible, that service so made was service on a person either impliedly authorizv^d to accept that particular service, or who certainly would communicate tho process so served to the party who was not in this country to receive it himself. The object of all service was of course only to give notice to the party on whom it was made, so that he might bo made aware of, and able to resist, that which was sought against him ; and when that had been substantially done, so that the Court might feel perfectly confident that service 'lua reached him, everything had been done that was required.' Whore a bill is filed to restrain an action at law, and the defendant (tho plaintiff in the action) is out of the jurisdiction, or cannot be found,- the Coui't will allow substituted service on the Attorney emploj-cd by him to conduct tho proceediKgs at law, on an affidavit proving those facts. 3 Substituted service of tho copy of a cross bill, upon tho solicitor m-|io filed the original bill, will not be ordered; but the Court will, in such a case, stay the proceedings in tho original caupo untu the defendant.'; have entered an aj)poarance.'» In the case of Jlobho use v. Courtney,^ the cases and authorities upon the subject of substituted service upon an agent wore reviewed. There, the defendant, who was out of tho jurisdiction, had given special nuthor- ity to a person within the jurisdiction to act as his agent, Avitli respect to the property which was the subject of tho suit ; and tho Court ordered service on that person to bo good service upon tho defendant. An ap- plication of a similar kind was made to Sir James Wigram, Y. C, iu (he case of Webb v. Salmon,'^ and refused by him upon tho ground, that tbo persons v.pon whom the substituted service was souglitto bo ctrected were not agents ir. iho matter of tho suit when the corresjiondcnco w'th the plaintiff's solicitor eominonccd and thai they refused to accept the agency; there was not, thcrcforo, that appointment of them, as the solicitors or agents of the dofendant,which, in the case of Hohhouscd v. 1 Ibid. 311. a l^erqiscn v. Jiearaiu Hare, App. 90, marg. : 10 Jur. 1111, V. C. S. ; Jlamoml v. Waller, 3 Jiir. N. S. (>}■, i. V. 0. W. : ami see Srton, 8T7 ; Anderson v. Leivls, 3 Bro. C. C. 439 : 5 Sim. 505, •■" The merits need not now l>e shown by aflldavil : Scrgison v. lieavan, ubi sup. '^ Ander.ion v. Lewis, nbi sup. ; and Gardiner \. Mason, 4 Bro. C. C. 478: 5 Sim. 6CC; an.l see Waterton v. Cro/t, 5 Sim. 002, 507. 287, V. C. W. • 2 Uaro, 261, 255 ,1, L,JJ.,".J. I,,,",,. SERVICE OF THE COPY OF THE BILL. 35T Courtiuy, was assumed to bo necessary. He also observed, that he was not prepared to go beyond that case. In Cooper v. Wood, ' Lord Lang- dale, M. R., ordered substtuled service on a person who had acted as the solicitor of the absent defendant, in the subject of the mortgage to which the suit related, and who, there was reason to believe, was in communi- cation with the defendant. And in Weymouth v. Lambert,^ the same judge ordered substituted service in a creditor's suit, on one who, act- ing as the attorney of the executor and general devisee and legatee, resident in India, had obtained administration here, and had entered into receipt of the rents of tlie real estate; and where an infant had been taken out of the jurisdittion for the express purpose of preventing his being served personally, his Lordship ordered, that service upon the solicitor and Six Clerk of the parent should be good as against the in- fant.' It is to be observed, however, that the principle, as laid down in Hopev. Hope,* seems to go beyond the case oi' Hobhouse v. Courtney. The court in the exercise of its discretion, has by special order per- mitted various other modes of substituted service to be adopted. Thus, service at the last place of abode of the defendant's wife, has been ordered to be good service.^ So, service by sending the document un- dercover to the person to whom the defendant had directed his letters to bo sent, has been permitted. » Again, in the case of inftints, substi- tuted service upon the mother, in one case,'^ and u])on the father-in-law ia another, 3 \vas ordered to be good service. Whenever an or i" is made for substitutional service, such order must be served at the same time that the bill is served, and it must bo stated in the order that it is to be served ;» care should also be taken that the service is effected in strict accordance with the terms of the order, and it will then have the same jffect as ordinary service. ' ° The application for the order is made by an ex parte motion ; ' ' and must be ';li > m I I 1 5 Beav. 391 ; and seo maid v. Hay, 9 W- R. 369, V. C. S. * 3 Beav. 833 ; and see Howkim v. Bennett, 1 GifT. 215 : 6 Jnr. N. S. 948 ; and the cases cited in the. note to Skeqg v. Simpson, 2 Do G. & 8. 454, 450 ; and as to service of bill, or order of revivor, fee Ncrrton v. Hepworth, 1 McN. & G. 54 : 13 Jur. 244 ; Uart v. Tulk^ Hare, 018 ; Forstcr v- J/en2i«s, lOBeav. 568: 17Jur. 657. ,,, ^,. ., ,,.,„... ' Laney.Hardivicke, Beav. 222. ' ' ■ - . .. M De G. M. & G. 828. '' Pulteneyyr. Skeltonb Ves. 147; and aeo Manchester and Stafford Railway Company v. How, 17 Jor.B17,V. C.W. " Hunt V. Lever, 6 Ves. 147 ; but aee Oathercole v. Wilkinmn, 1 De G. & S. 681 : 11 Jur. 109C. ' Baker v. Holmes, 1 Dick. 18 : and see Garnum v. Marshal, ib.Tt',H.C. nom. Smith v. Marshall, a Atk.70; Clark v. Waters, V. C. S., cited, 1 Smith's Pr. 378. ' Thxmvpson v. Jones, 8 Ves. 141. » Jones V. Brandon, S Jur. N. 8. 437, V. C. W For form, see Seton, 1244, No. 4. '« mkomn v. ^YUkins, 9 Jur. N. S. 742: 11 W. R. 868, M. R. ; but see Dicker v. Clarke^ 11 W. R. 765,V.C. K. " i?««ct v. JBarton, 4 W. R. 798, V. C. W. ;kr 338 SERVICE OF THE COPY Or THE BILL. supported by an affidavit Bhowing what efforts have been made to servo the defendant, and that all practicable means of doing so have been ex- hausted,* and hoAV the substituted sei*vice is proposed to be effected. It would seem that the Court hatl no authority, under its original jurisdiction, to serve process upon any defendant, whether a natural born subject or not, who was residing out of the territorial limits of its jurisdiction ; unless, indeed, the defendant was shown to have absconded to avoid such service.^ Such power has, however, been conferred on it by Statute both in England and in this Province; The 71st Sec. of our Chancery Act al- ready reterred to, gave a limited power for this purpose ; th" was cx' tended by Sec. 12 of 28 Vic. c. 17, Avhich declares 'hat Where a " defendant or respondent in any suit or matter is abseul li'omtho Pro- *' vince, or cannot bo found therein to be served, the Court may authorize " proceedings to bo taken against him according to the practice of tlio " Court in the case of a defendant, whose residence is unknown, oi* iii " any other manner that may be provided or ordered, if the Court shall. ' ' under the circums< anccs of the case, deem such mode of jwoeccdinii: " conducive to the ends of justice." Besides the pro'-'sions of these Acts, there are two Orders, 101 and 102, relating to this subject. Order 101 provides that "Whore the defendant i.» *' out of the jurisdiction of the Court, then, upon application supported by " such evidence as may satisfy the Court in what place or country t^ucli " defendant is or may probably be found, the Court, instead of direct- " ing publication as provided for by Order 100, may order that an office copy of the bill bo served on the defendant in such place or countiy, " or within such limits, as the Court thinks fit to direct ; and the order "is in such case, to limit a time (depending on the place of service) " within which the defendant is to answer or demur, or obtain from the " Court further time to make his defence." And Order 102 declares that "The Court may provide for or order service in any other manner " that the Court, under th o circumstances of the case, deems conducive "to the ends of justice." Order 109 provides that " Where a plaintiff " has proceeded under Orders 100, 101, and 102, and the defendant lias 1 Firth V. Bush, 9 Jur. N. S. 431 : 11 W. R. Cll. \. C. K. ; and see Barker v. A#fc, 11 W. H. 05?. v. C. K. C, Cookneji, v. Anderfon, 1 De O^ J. & S. »B, »«: ftJur. N. S. and see Folfy v. Mailfardef, 1 Do (1. .1. «fc 8. " » Per Lord Westbury, L ~ -- . - .. .- -- 10 Jur. N. S. Irti ; .SffWJwcM-. i?ofl»T^ I De G. J. & 8. 3!)«; Norrtu v. (fotteriU, 5 N. It. 3l5, V. C. W. Where leave wa« (riven lo servo piocesB out of the juriidlctiou, the service was ueetess unless tlio dtif'-ii^laDt eiitere Anderson v. Stather, 10 Jur. 888, L. C.!; Turner v. Sowden, 12 W. R. 522 : 18 W. R. 86 : 10 Jnr N. 8. 1122, V.C. K. i« BiddJtlph v. Lord Camoys, 7 Boov. 680 : 10 Jur. 488. SEEVICB OP THE COPY OF THE BILL. 361 litem will be appointod ; and a huoband oat of the jurisdiction may bo se' red for himself and his wife.* Where the fact of the marriage is in dispute, leave will be granted to serve them separately.^ Where a father and his infant children were living together out of the jurisdic- tion, it was held, that a separate copy must be served on each.^ The order giving leave to make the Bcrvice out of the jurisdiction must le served with the copy of the bill. If no directions to the con- trary are given by the order, the service should be effected by serving the copy of the bill and a copy of the order on the defendant personally, or by leaving the same with his servant, or some member of his family, at his dwelling-house or usual place of abode,* within the limits defined by the order. The order fixes the time after scrvico of the bill within which the defendant is to appoax, and also, if an answer is required, the time within which the defendant m to answer, or demur, or obtain from the Court further time to make his defence to the bill.' The times so fixfed should be inserted in the indorsement on the bill, instead of the time inserted there when the bill is to bo served within the jurisdiction. » A defendant, on being served with the bill, may file his answer at the Eecord and Writ Clerks' or Deputy Eegistrar's Office, whereupon the suit will be prosecuted against him in the ordinary way ; or he may move, on notice to the plaintiff, to set aside such service for irregu- larity. '' . . ,,: All orders, writs, and other proceedings upon which process of con- telnpt may afterwards be issued, require, in general, what is called per- sonal service. 8 The same strictness is not, however, necessary for tho service of notice of ordinary proceedings in the cause: and it will bo convenient here to state the manner in which service of such proceed- ings is effected. Our Order 40 provides that '* Upon every writ served out, and upon "every bill, demurrer, answer, or other pleading, or proceeding, there " shall be endorsed the name or firm, and place of business of the solit ' Jones V. Geddes, 9 Jur. 1008, V. C, E. ; Steele v. Plomer, 2 Phil. 782, n. 1 M 'N. & G. 88. " Longworth v. BeUamy, M. R., cited Seton, 1245. ' JoMs V. Oeddfn, udi mip. * Braithwaite'g Pr. 33. ' i . ■ » Ibid. : Ord. 100. ° ^"J?*** V. i?Wff«, 9 Hare, App. 27: 1 W. R. 99; C/iatfleld v. Berchtoldt, uhi cup.; Sharpt V. * Blondeau, 1 W. R. 100, V. O. K. ' Maclean v. Dawma 87 Beav. 25 : 4 De G. & J. 150 : 5 Jnr. N. S. 663 ; OMcial Manaaer of Na (ional Association v. Carsiairs, 9 Jur. N. S. 055 : 11 W. R. mi, M. It. : Foley v. MaiUardet, 10 Jnr. N. S. 84 ; ib. 161 : 1 De G. J. & 8. 889 ; see Bralthwalto's Pr. 321. ^°oS*^"^*' personal service is, however; sometimes dispensed with : Eider v. Kidd«\li\n. 209; De ManneviUe v. De ManntviUe, <6. 203. I i, I 3 tz 8KRVIC1 OF TIIE COPY OF THE BILL. Vl -■ji" .U' u " tor or solioitor.s by whom such writ has been sued out, or such pload- *'.ing or other proceeding has been filed; and when such solicitors ai*o " agents only, then there shall bo furthur endorsed thereon the name " or firm and place of business of the principal solicitor." Service of subpoena to appear and answer (under the old practice) without endorsement may be set aside on speedy application.' An omission of the address for service does not necessarily make the writ void, but the Court will stay process till the rule is complied with.^ An attachment was discharged with costs, the endorsement of the subpoena on which it was issued being defective. ^ An ineguhirity in the endorsement, on •' pleading of the name and place of business^ of the solicitor filii ', ii, is waived by demanding and receiving u copy of the pleading.* And Order 41, that " Where the name and place of business of a soli- " citor have been endorsed upon an}'' pleading or proceeding tiled, it '' shall not be necessary to endorse such place of business on any plead- "ing or proceeding in the same cause or matter subsequently filed or " subsequently served on any person who was served with the fbr- " mer proceeding." . ^ Order 42 provides that " Where the pleadings in any cause have been " filed in the office of tlie Clerk of Eecoi*ds and Writs, or in the office of " any Deputy Registrar, all notices, appointments, warrants, and other " documents and written communications in relation to matters trans- " acted in Court or Chambers, or in the office of the Master, Eegistrar, " or Clerk of Records and Writs, which do not require personal service " upon the party to be affected thereby, ai-e to be served upon the soli- " citor when residing ui ^he City of Toronto ; and when the solicitorto "be served resides eisewheie than in the City of Toronto, then such " notices, appointmieuts, wairants, and other documents and written '•'communications aforesaid, may be served either upon such solicitor or " upon his Toronto agent named in the "solicitors' and agents' book," " unless the Court, or a Judge thereof, or a Master, before whom any "such proceeding is had, shall give any direction as to the solicitor " upon whom any such notice, appointment, warrant, or other docu- " ment or written communication is to be served. If any solicitor ne- *' gleet to cause such entiy to be made in the "solicitor and agents' "book," as is required by Order 24, ihe posting up a copy of any such " notice, appointment, wai-rant, or other document or written comma- » Johnson v. Bamef, 1 1> G. & S. 129. ^ . " « Pr, 3 Hare. 511 , ' ' " * Barnen V. TweddeH, Coop. t40. . , ,■ * . « i?«nne« ▼. O'Jftara, 2 Chsm. R. 107. '' v I fc*.':;v SERVICE OV THE COPY OF THE BILL. 36$ "nioation for the solicitor so noglocting as aforesaid, in the office of the " Clerk of Records and "Writs, is to be deemed sufficient service unless "the Court direct otherwise." The Court, under peculiar circumstances, allowed service to be offcctotl upon the solicitor by placing the paper under the door of his Chambers. » And where a solioitor had absconded, he was held properly served with a notice of motion left at his unoccupied place of business." Where th& solicitor of a defendant against whom costs had been decreed, and who had gone out of the jurisdiction, died pending taxation, leave was given ou the application of the plaintiff to serve at the last place of residenco in England of the defendant a notice to appoint a new solicitor, and it was ordered that such service should be good service on the defendant.* Order 43 provides that "All writs, pleadings, notices, orders, warrants, " and other documents and written communications which do not re- " quire personal service upon the party to be affected thereby, may bo " served upon his solicitor residing in the County where such proceed- " ings are conducted, or, where such solicitor does not reside in the "County where such proceedings are conducted, then uj)on the agent " named in the ** Solicitor and Agent's Book," provided for by Order 33. "And if any such solicitor neglect to cause such entry to be made in "the "Solicitor and Agent's Book" the posting of a copy of any such "writ, pleading, notice, order, warrant, or other document or written "communication for the solicitor so neglecting as aforesaid in the "office of such Deputy Eegistrar, is to be deemed sufficient service." To understand clearly the effect of these two Orders (42 and 43), rc- fsrence must be had to Orders 24 and 33 Order 24 requires a " Soli- citor and Agent Book " to be kept in Toronto, where each solicitor residing out of Toronto is to specify the name of one having an office in it, upon whom papers may be served. Order 42 directs that ivherevei" the pleadings have been filed, all papers in relation to matters transacted in Courts or Chambers, or in the office of the Master, Registrar, or Clerk of Records and Writs, not requiring personal service (all being in Toronto) are to be served upon the solicitor if he resides in Toronto ; or if ho resides out of it, then either upon him, wherever he may be, or upon his Toronto agent. In case no such agent is specified, then service maybe made by posting in the office of the Clerk of Records and Writs. But where the proceeding does not bring the parties before the Court (m Toronto), or in Chambers (m Toronto), or the Master (in Toronto), oi- ' RcTempleman.aOBeav. 574. U • . ^ .' .' :i ' Ntxcton V. Tlwmpson, 22 L. J. Cli. 10 : 16 Jnr. 1008. S. C. . ' Gilmn v. Ingo, 12 Jiir. 105. , ■ . ti , ^64 SERVICE OF THE COPY OF THE BILL. the Registrar (m Tor&nto), or the Clerk of Reoords and Writs (in Toronto), then, by Order 43, papers may be served upon the solicitor residing in the County where the proceedings are conducted (the County whore the bill is filed,) or, where he does not reside in the County where they are conducted, then upon the agent specified in the " Solicitor and Agent Book " kept in each County by the Deputy Registrar under Order 33. In case no such agent is specified, then the same may bo made by posting in the office of the Deputy Registrar. Order 44 provides that " Every party suing or defending in person is " to cause to be endorsed or written upon every writ which he sues out, " and upon every bill, demurrer, answer, or other pleading or proceed- " ing, his name and place of residence, and also (where his ]»laco of " residence is more than throe miles from the office where such plead- ^' ing or other proceeding is filed) another proper place, to be called his " address for service, not more than three miles from the said office, " where writs, notices, orders, warrants, and other documents, proceed- " ings, and written communications may be left for him." And Order 45, that " "Where a party sues or defends in person, and no address for " service of such party is written or printed pursuant to the directions " of Order 44, or where a party has ceased to have a solicitor, all writs, " notices, orders, summonses, warrants, and other documents, proceed- " ings and written communications, not requiring personal service upon "the party to be affected thereby, shall, unless tho Court shall other- " wise direct, be deemed to be sufficiently served upon such party, by posting up a copy thereof in the office of the Clerk of Records and Writs, or a Deputy Registrar where the bill is filed. But if an ad- "dress for service is written or printed as aforesaid, then all such writs, " notices, orders, summonses, warrants, and other documents, proceed- " ings, and written communications, shall be deemed sufficiently served "upon such party, if left for him at such address for service." D., a Country solicitor, employed McN. andH. as his booked Chancery agents in Toronto, H. beiag the one who conducted the Chancery business of the firm. McN. and H. dissolved partnership. It was held that a no- tice served upon a Clerk in the office of McN. and H. after the dissolution was not a good service upon D.' "With regard to the time when service is to be made, our Order 410 provides that " Service upon solicitors of pleadings, notices, orders, and *' other proceedings, is to be made between the hours of ten o'clock in " in the forenoon and four o'clock in the afternoon, except on Saturdays, > Mnd V. Little, 1 Cham. B. .355. T'.JB WIIEEE NO SERVICE OF COPY OP BILL CAN BE EFFECTED. 365> "when it shall be made between the hours of ten o'clock in the forenoon « and two o'clock in the afternoon." And Order 411, that " If service <' is made after four o'clock in the afternoon on any day except Satur- •' day, the service is to be deemed as made on the following day ; and " if made after two o'clock on Saturday, the service is to bo deemed as « made on the following Monday." Service of a paper efi'ectod after the hour of four o'clock on Saturday by putting it under the door of a solici- tor's office, is not a good service for that day, unless it be shown that the paper came to the hands of the solicitor or his clerk on that day, during Huch hours as the one or the other might be served personally. When Sunday is an intermediate day, it is reckoned in the computation of the time for service of papers.' The latter part of this case was, however, overruled in a later casc,^ where it was held that there must be two clear days between the service of a notice and the day for hearing the- motion; and in the computation thereof, Sunday is not to be reckoned. Every party suing or defending in person, must cause to be written upon every writ which he sues out, and upon every bill,=* demurrer, plea, answer or other pleading or proceeding, his name and place of re- sidence, and also (if his j)lace of residence shall be more than three miles ii'om the office where the pleadings are filed,) another proper place (to bo called his address for service), which shall not be more than three miles from that office, where writs, notices, orders, warrants, and other documents, proceedings and written communications may be left for him.^ Section 11.— Proceedings icJiere no Service of a Cojjy of the Bill can he effected. ■■*v In the event of the plaintiff not being able to effect service of a copy of the bill, cither xiersonally, at the dwelling of the defendant, or out of the jurisdiction, the Court has provided a mode of service by publica- tion ; on the adoption of which the plaintiff is entitled to have the bill taken pro con/esso, without cither service on the defendant, or answer by him. Order 100 provides that "In case it appears to the Court by > Spragne v. Henderson, 1 Cham. E. 213. " Be Crooks, 1 Cham. R. 304. " ' ' " • ' This includes an information, Trcl. Ord. 10 (4). * Ord. 44. See Price v. Webb, 2 Hare, 511, 513 ; Jo/uison v. Barnes, 1 Do G. & Si 129 : 11 Jur. 261 Where thp solicitor for any part,(, or any party suing or defending Jn person, changes bio resi dence or address for service, notice thereof should be given to the Clerk of Records and Writs !i'»d also to each solicitor cnucerncd in the cause : Braithwaite's Pr. 10. '■r-i S66 WHERE NO SERVICE OP COPY OP BILL CAN BE EFFECTED. <' sufiiciunt ovidence that a defendant is absent or cannot be found after ^'diie dillgonco to be served with an office copy of the bill of complaint, <( the Court may order the defendant to answer or demur within a time "to be named in the order, and may direct a copy of the order, together " with a notice to the effect set forth in schedule C hereunder written, ^'to bo published in such manner as the Court thinks fit; and in case " the defendant does not answer or demur within the time limited by "such order, the Court may oixler the bill to bo taken ^wo canfesso in the ^' manner hereafter provided." This Order is somewhat similar to the provisions of the Imi)erial Statutes 11 Goo. IV., 1 Will. IV. c. 30, and 15 and 16 Vic. c. 8G, s. 4. On moving for an order to serve an ab sconding defendant by publication, it must be shown where the defend- ant last resided, and whether he has any relations within the jurisdiction, and it so, that enquiries have been made of them as to his whereabouts.' In u suit which is not for foreclosure or specific performance, the Court cannot order service of the bill by publication on defendants who have been out of the jurisdiction for more than two years before the filing of the bill.2 We have now neither statute nor order preventing service by publication where the defendant has been out of the jurisdiction for more than two years ; and this decision was made under a Sec. of Order \), of Juno, 1853, not now in force. The Court will permit service of a bill by publication (under Sec. 8 of Order 9 — similar in some respects to Order 100 of the Con. G. Orders) upon a defendant in a foreclosure suit, who has left the jurisdiction, though the defendant sought to be advertised is merely an incumbrancer by virtue of a subsequent mort- saffo.'-' In moving for an order for substitutional sorvico of an abscond- ing defendant, or for an order to advertise him, the affidavit on which the motion was made stated that the defendant had " made enquiries and exertions to serve the defendant, but had been unable so to do." The motion w^as refused, as the affidavit ought to show wliat exertions had boon made, so that the Court or Judge may bo enabled to deter- mine whether or not the defendant is absconding, or that it would be proper to dispense with personal service;* but it is not necessary to show that ho has absconded to avoid service in the particular suit* Where the sole defendant in a foreclosure suit had been absent from the juris'] iction for fourteen years, and had not been heard of during that time, a motion for the service of the bill upon him by publication was refused, notwithstanding 28 Vic. c. 17, s. 12. « A similar ai)plica- ' JH-ing V. Sfraith, 1 Cham. R. 185. , : -. 'J Her lis v. Xichols, 1 Cham. R. 233. 3 IlobsOH V. Jleesor, 1 Cham. R. 280. < Muniey v. Knapp, 1 Cham. R. 26. * Uarlon v. Whitcombe, H\ Beav. 905 : 1" Jiir. Si ; Allen v. Lodir^ 15 Jur. 4'JO, V. C. Ld. C. « Shaw V. Ackem, 1 Cham. R. 305. WIIEBB NO SERVICE OF COPY OF 1ULI. CAN HE EFFECTED. a«7 tion was rofusod on 29th May, I8G6, by V. C. Spraggo ; whoro one of tho (lofendant8 had been absent A*om the Province and not houixl of for upwards of seven 3'ear8, on the ground that iji such case tho presumption of law was that tho party was dead, and that tho proper course would bo to revive in tho name of the representatives of such defendant.' Where an absent defendant is an infant, the Court has like powers as to granting an order for service by publication, as in case of an adult ; but Semble, the notice published should not state that in default of answer tho bill will be taken jwo con/esso. The Court will also, in exorcise of tho discretion given to it by 28 Vic. c. 17, s. 12, call upon such defendant to show cause why a solicitor of the Court should not bo appointed his guardian ad litem.' When a defendant who cannot bo found has any relatives in the country, they should be examined belbre a Special Ex- aminer, or Local Master, as to their knowledge of his residence."' The Court in some cases orders an office copy of the bill to bo served upon ono of the defendant's relatives in addition to tho publicatioji of an advertisement. The Order usually directs tho advertisement to bo published once in each week for tho four weeks pr«cecding tho day ap- pointed for defendant to answer. In such an order tho word " week" means any period of seven consecutive days, and not the particular seven commencing with Sunday. Where tho last insertion of an adver- tisement was on a Tuesday, and tho day appointed for answering was the Thursday week following, this was hold not to be a suifieient com- piianco with the order.* In moving to take a bill pro confesso against a defendant who has boon advertised, it is necessary to show by affidavit that he cannot be found to be served with notice of the motion.'' Where an order had been made pursuant to tho general orders of 1853, to advertise the defendant as absconding, and no further action had been taken thereon for nearly four months, on an application to the Judge in Chambers for an order to take bill pro eonfesso against such defendant, Estcn, V. C, required an affidavit showing that defendant had not returned within the jurisdic- tion, : nd that the plaintiff was still ignorant of his \vhereabouts, so that he was unable to serve him with notice of this ai)plication.'' Tho Chancellor, on a motion for an order to take tho bill pro confesso against the defendant under the Orders of 1853, authorizing notice to bo given ' Kelly V. Jfacklem, 1 Cham. K. 300. - Duffy V. 0' Coivwr, 1 Cham. R. 893. ^ Perkins, v. Pkbs, 1 Cham. R. 307 ; ' Bazaigetie v. Loioe, 24, .%8. ^ GUmour v. Matthews, 4 Grant, SK). " McCarty v. WcssOs, 1 Cham. E. 5. McMurrich t. llogan, Ibid. i8>. IMAGE EVALUATION TEST TARGET (MT-3) I.I I 1.0 i^l^ Ki ■tt iiii 122 ^ /: "'^ '/ Photographic Sciences Corporation ^^^>/^ ^.V^ 23 WIST MAIN STMIT WIBSTIR.N.Y. MStO (716)t72-4S03 4** > 'r^' |; !",■■» • ! 868 WIIERl NO SERVICE OF BILL CAN BE EFFECTED. in some public paper where the defendant has absconded, stated that ii> future, on all such orders being applied for, the several newspapers in which the advertisement has been inserted, must be produced and shown to the Judge to whom the application is made before the order jm confesso will bo granted.' A party having absconded from the Province, as alleged, to avoid service of proceedings in this Court, and it being shown upon affidavits that within a few months he had been resident at several different places, and that it was impossible to say with anj- degree of certainty in which of them he could bo served with process, the Court directed an advertisement to be inserted in a newspaper I'lib lishcd at the place of the residence of the party in the Province, and that a copy of the several papers containing the advertisement should bo sent to ills address at each of the places named." This case "was de- cided undc . t 7 and 8 of Order 9, June, 1853 ; and Order 100 of the Con. G. Orders, so n ■• ta the jioint decided is concerned, seems to have the same ell'oct. -nioro an application was made to advertise a defendant as absconding;, and in the affidavit it was shown that the defendant had absco!idcd to Michigan, where his wife had lately gone to join her husband, but did not state that any endeavor had been made to ascer- tain his residence ; Esten, V. C, before granting the application, required an affidavit to be produced showing that the defendant could not be found in Michigan, where it was supposed he hatl gone to reside, for the • purpose of being served with the bill out of the jurisdiction." Whore there is an inconsistency in an endorsement of the bill, and the order under which foreign fjcrvieo is effected, the Court will not grant an order j»'0 confesso.* Whci'c proceedings are taken against an absent defendant by udvertisomcnt, a decree cannot bo obtained on prwcijtc.'' If Iho defendant (not being an infant, or person of unsound mind,) neglects to answer or Cicmur within the time mentioned in the endoi-se- ment thereon, to a bill which has been duly served upon himAvithin the jurisdiction of the Court, the plaintiff may have the bill noted against him. It may hero be observed that these remarks do not apply to suits for foreclosure or sale under mortgage, the practice as to such suits being treated of in another part of this work. Order 88, as amended by Order 550, directs that "A defendant who has been served with an "office copy of a bill of complaint within the jurisdiction of the Court, "is to answer or demur to an original bill, or bill amended before an- " swer, within one lunar month after the service of the office copy of > Goodfellow V. Hanbly, 1 Cham. R. 03. « atimton V. SUmgon, Grant, 871t. • I4i)My V. CrulM, 1 Cliam. R. 2. « James v. Wertheimer, 6. U. C. L. J. H». • McMiehatl v. Thomas, 11 Grant, 840. WHIRB NO SCEVICK OF COPT OF BILL CAN BB EFFECTED. 369 ^'the original or anmended bill, as the case may S<) , " and Order 89, that " Whore a plaintiff amends his bill after answer, a defendant desir- "ing to answer the same is to x>at in his answer thereto within seren ''days after ser«rice of the bill as amended." Order 103 provides that " Affidavits of the service of an office copy of a bill of complaint are to " be in the form or to the effect set forth in schedule D hereunder writ- '< ton ; they are to state where, when, and how such service was effected ; "but no copy of the bill is to bo annexed." .; It will bo convenient to notice hce the Orders relating to the service by the Sheriff of the various proceedings : — Oixlor 298 provido.s that *' On the taxation of costs, no foes are to be " allowed for the mileage or Korvico of office eoiiios of bills, oi-ders, •'subpoDnas, warrant^, notices of motion, or other proceedings, imless " seiTod, and sworn in the affidavit of service to fiave been served, by •' the Shoritl', his Deputy or Bailiff being a literate person." Oi-dor 299, that " (Jpon the delivery of an office copy of a bill, order, "subprena, warrant, notice of motion or other proceeding, at the office •'of any sheriff', to be served by him, ho, his Deputy or Clerk is to note • the time it was so delivered." Oixior 300, that " In case the office copy of the bill, order, subpoena, •'warrant, notice of motion, or other proceeding, is not fully and com- 'pletely served within fifteen days after such delivery, ihe plaintiff or defendant, his solicitor or agent, is to be entitled to receive tho same •back, and tlie Sheriff, Deputy Sheriff, or Clerk shall therewith return "a note of tho time when tho same was received, and the time of re- delivery, and on the taxation of costs, tho costs of the mileage and ' service of tho office copy of tho bill, oi-dor, subpojna, warrant, notice •of motion, or other proceeding, by any literate person, are to be al- •■ lowed, as if tho same had been served by the Sberiff or his officer." Order 301, that " If tho Sheriff neglects or refuses to return any such 'ofSco copy of a bill, order, subpoena, warrant, notice of motion, or ■'other proceeding, after the expiration of the said fifteen days, tho • plaintiff or defendant may issue or prepare another office copy of tho "bill, order, subpoena, warrant, notice of motion, or other proceeding, 'and tho costs thereof and occasione«l by the default of tho said Sheriff, ' may Ixj charged against, and recovered from the Sheriff by the plain- '■ tiff or defendant, or his solicitor; and the Sheriff in whose office any ' such proceeding is received for service, is to receive it subject to this "liability." Order 302, that " No mileage shall be taxed or allowed for the service ''of any office copy of a bill, order, subpoena, warrant, notice of motion, "i l1 I I I' 370 TAKING BILLS PRO C0NFE8S0. m " or other praceeding, without an affidavit being produced to the Tax- " ing Officer, stating the sum actually disbursed and paid for such " mileage, and the name of the party to whom such payment has been "made." ,|. , .. , ,. •)wr Order 303, that " The preceding oi-ders are not to apply to services "effected out of the jurisdiction, nor to services effected by a sol lei tor "upon the oppof This decision was made under Order 13, of June, 1863, S. 1, by which the limit is two months; but the Court then inti- mated what they have since embodied in Order 104, that after six months from the service of the bill, any application to take it pro con- Jesso must be made upon notice. Where, on a motion for an order pro confesso after six months from the service of the bill, it appears that the defendant has absconded, the ordev pro confesso will be granted ex parte.'' This oi'der was granted under the orders of Juno, 1853, No. 34, S. 5, of which Order 199 of the Con. G. Orders is nearly a copy. An oi-der pro confesso was granted ex parte although more than six months had elapsed from the service cf the bill, the long vacation having iutervcned.^ This case was determined before the order giving six months from the service of the bill, within which time the plaintiff may have had his bill noted; and it is presumed that it would not now bo followed, as Order 408 as to vacation does not apply to such a case. In making the motion, the usual two-days notice of motion is sufficient.* Where the Attorney-General is a party defendant to a it, and does not put in an answer, the proper course is to obtain an order that he do answer within Si, week, or, in default, that the bill be taken pro confesso against him.' In applying for an order pro confesso after six months from tho service of the bill, the Registrar's certificate as to no answer being filed should be as recent as possible ;« and the affidavit of service of the notice ol motion should show that the notice was served within the jurisdiction." The six months after service of the bill, within which an order pro confesso may be obtained ex parte, are six calendar months. Where separate affidavits of S!".rvice of bill are made by one person, the costs of one only should be allowed. » A note j)ro confesso was set aside where the affidavit of service of the office copy of the bill was shown to be im- perfect and insufficient. 9 It may here bo noticed that Order 518 provides that " An order to ^' take a bill pro confesso against a defendant, who, at tho time of the ■" making such order, is an infant, or person of weak or unsound mind, -" unable of himself to defend the suit, is of no validity." ., } -. 1 Brown \. Baker, tCh&m. H. 7. :*> . ;.''>i .^ ^ Hare V. Smart, 1 Cb&m. n. SSO. ;*.. •. ^j, 'S' . v' ' ' Orange v. Conroy, 1 Cham. K. 70. " * v ■ - * JJoteard v. Watson, 1 Cham. K. 909. » Shea V. FeUmoes, 1 Cham. K. 80 ; and see Orooni v. Attorney- GeiwcU, 9 Sim. 325 ; Ptto v, Ai- torney- Oenercu, 1 Y. & J. 609 • JfcCann v. Eastwood, 1 Cham. R. S38. "> Me Clary t. Durcmd, 1 Cham. K. S83. • Boulton V. MoyaugAton, 1 Cham. B. 210. * Gordon t. Johnton, 3 Cham. R. SIO. It will I to servicei to persons "dofendan "mind, un " with an i " io answei "plaintiff 1 ^^pro confesi " by afflda^ " that no ai "order the pro confesso against his leave was g .i,'istrai''s Cle General Ord iSecrctary w decree must I with his Loi enter the noi Order 107 "an office co " boon porsoi " within tho "fondant to " notice of a "aflor the d£ "against thi "in tho men "may order 'or at such "ditions, as "proper." tutional servi (of which Or vice of the of defendant at had been obt< Order 108 ' Harihall r. Bi *BUottr.Biar PHKLIMINARY ORDKR. 373 It will be observed that the Ordora just coDsidored, 104 and 105, refer to services of bills witbin the jurisdiction ; the next Order, 106, relates to personal services out of the jurisdiction. It provides that " Where a ''defendant, not appearing to bo an infant oi a person of weak or unsound "mind, unable of himself to defend the suit, has been peraonally served " with an office copy of a bill out of the jurisdiction, and has neglected « to answer or demur within the time limited for that purpose, the "plaintiff may apply to the Court ex parte for an order to take the bill ^'pro confesso against such defendant ; and the Court, on being satisfied " by affidavit that an office copy of the bill was served peraonally, and "that no answer has been filed for such defendant, may, if it thinks fit, "order the same accoi-dingly." On a motion for leave to enter a note pro confesso against a defendant, and for an ordor to answer separately against his wife— these dofondants living out of the jurisdiction, — the leave was granted to enter the note, and the note was made. The Ro- gistra/s Clerk, however, refused to enter the note, saying that the Gonoral Orders of the Court did not authorize him to do so. The Secretary was of opinion that as the suit was one in which a prcecipe decree must be issued, the Clerk was right. However, on consultation with his Loixiship the Chancellor, the Secretary direciod the Clerk to enter the note against the defendant.* Order 107 relates to service not personal. It provides that '' Whei-e "an office copy of a t>lU has been duly served, but the service has not " boon personal, and tb.e defendant has neglected to answer or demm* " within the time limited in that behalf, the plaintiff may cause the de- " fondant to be served personally, or by his solicitor if he has one, with " notice of a motion to be made on some day, not less than seven days, "after the date of such service, that the bill maj' be taken pro confesso 'against the defendant; and thercuj^on, unless the defendant has "in the meantime put in his answer, the Court, if it thinks fit, "may order the bill to be taken pro confesso, either immediately, "or at such time, and upon such terms, and subject to such con- "ditions, as the Court, under the circumstances of the case, thinks "proper." An application was made for an order allowing substi- tutional service of a notice of motion under Sec. 3 of Order 13, 1863, (of which Order 107 is a copy,) to take the bill pro confesso. The ser- vice of the office copy had been effected by delivering it to a son of the defendant at his place of business. No order for substiiutional service had been obtained, this was held to be insufficient service.' Order 108 relates to service not i)ersonal, and out of the jurisdiction, ' UatthaU T. Balfour, 9 Cham. R. 00. * BUM V. Biord, % Cham. R. 80. — . P| ., IM'^l ui . m *if 374 TAKING BI5.L8 PRO OOIfFKSSO. 4t and provides that " Where an office copy of a bill of complaint has been daly served, but the service has not been personal, n*^d the defendant « has neglected to answer or demur within the time limited in that be- "half, then, in case the office copy of the bill has been served upon tho " defendant out of the jurisdiction, or the plaintiff has been unable witl) ^'due diligence to servo him personally with such notice of motion an •*is provided by Order 107, the Court, upon the ex parte application of " the plaintiff, may direct a notice of motion, in tho form or to tho effect " set forth in schedule E hereunder written, to be published in each "manner as the Court thinks fit; and upon the hearing of tho motion ^' the Court, being satisfied of the duo publication of the notice, and " that no answer has been filed, maj' order the bill to bo taken pro con- "fesso, either immediately, or at such time, and upon such, conditions, " as the Court, under tho circumstances of the case, thinks proper." In a case where the defendants had been served out of the jurisdiction with an office copy of tho bill upon an order obtained for the purpose, and after more than six months had elapsed, the plaintiff moved ex parte for an order pro confesso ; under the circumstances the order was made.' Order 110 provides that " Where a corporation aggregate, served " with an office copy of a bill of complaint, has neglected to answer "or demur within the time limited in that behalf, the plaintiff may " apply to the Court ex parte for an order to take the bill pro confesso " against the corporation ; and the Court, on being satisfied of tho due " service of the bill, and that no answer has been filed for the corpora- " tion, may, if it thinks fit, order the .same n,ccordingly." It may be here mentioned that an order pro confesso is not served. Our Order 111 provides that "An order to take a bill 2)ro confesso " against a defendant does not require to be served ; and all further " proceedings in the case may be ex parte as to such defendant unless "the Court orders otherwise." Where an order to take a bill pro con- fesso had been obtained six years ago, and no proceedings had been taken since to bring the cause on to a hearing, leave was given to the plaintiff to set down the cause, giving to the defendant notice forthwith of the proceedings.* Where after a bill has been ordered to bo taken pro confesso, but before any decree is drawn up, the defendant intervenes and is a party to proceedings taken between the plaintiff and the de- fendant, that is not such a case as is contemplated by Sec. 7 of 13 of the Orders of 1853, where all further proceedings in the cause may be taken ex parte.^ It may here bo noticed that by Orders 144 and 145, adc- > K«rr V. Clemon, 1 Chun. R. 14. * Cryne v. Doyle, 1 Cham. R. 1. * Stradian t. Jlunuyt 6 Grant, S84. PRXMMINARY OBDSR. 375 fendant to a suit refUsing to attend and bo uxamined boforo the Court or an Examiner, or refusing to obey an order for the production of documents, may, in addition to being punished as for a contempt, be punished by having the bill taken pro conf^vso against him. Where a cause had been sot down to be lioard pro confesso, and had been struck out, in consequence of the absence of counsel, it was per- mitted to be restored to the paper, on the application of the plaintiff alone. > It is to be observed, generally, that, in pioceoding to take a bill pro confesso, the greatest care must bo taken to bring the case strictly within the General Orders ;' and all formalities' must bo scrupulously complied with. Thus, an advertisement in i newspaper, which omitted the defendant's name as a party to the causo, although the notice was addressed to him, and stated that application would bo made to have the bill taken pro confesso against him, was held insufficient.' And so, after an order to take the hill pro <:onfesso haslbecn obtained, the bill cannot bo amended, even to the extent of correcting a clerical error, without vitiating the proceedings, and rendering the order use- less.* The preliminary order for taking the bill pro confesso, having been obtained by one or other of these means, it remains only to be observed, that the mere putting in an answer by the defendant, will not be a suf- ficient ground for moving to set it aside ; and whore, upon that ground, A motion was made to discharge an order for taking a bill pro confessOf it was refused with costs.' - Notwithstanding that, at one time, there sceems to have been some doubt upon the subject,' it is now clearly settled that, for the purpose of having the bill taken pro confesso, an insufficient answer is to be treated as no answer, and that the whole bill is taken pro ccnfesso, in the same manner as it is where no answer at all has been put in.' And so alBO, where a husband and wife are defendants, and the husband puts in an answer without his wife joining in it, and without an order to warrant such a proceeding, the Court treats the answer as a nullity, and wU make an order for taking the bill pro confesso.* It has likewise ' Harvey v. Senony 13 Jur. 446, V. C. K. B. • . . ih.i » ButOery. AtatlAews, 19 Beav. 649. j , i^: • - '. 'J'on«»v.J8ranro confesso, nnd decico, and get leave to answer, a very clear case must be made. ^ It is irregular to take an order ^ro confesso, where a pro confesso note stands in the Eegistrars book unvacated. Strict service of an office copy of the bill duly stamped will be required before an order jpro confesso can regularly issue." In a suit of foreclosure after the cause had been at issue for more than three years, but no hearing o)- examination of witnesses had taken place, the Judge in Chambers allowed the pei-sonal representative of a deceased party to the cause, who had purchased from the mortgagor, and against whom the bill had been taken pro confesso, to put in an answer, setting up what, in the opinion of the learned Judge, was a meritorious defence. Query. — ^Was not this a matter of discretion with the Judge, and not the subject of appeal ? ' m » JiipUngr v. Stttari, 4 Ves. Olfl. • i ' "^ » Baeon v. Griffith^ 4 Yes. 619, n. * mmam$y. Thompam, S Bro. C. C. a!80: 1 Cox, 413. * Hearn* v. Ogtlvie, 11 Ves. 77. * B. i^Mmtreat t WcOlaee, 3 Oham. B. 17. * Cameron v. U. C. Afining Cjr. 3 Cham. R. 315. * Amonymoua 13 Grant, 61. ir>': -(.,7 ft ■.,1 , I I "w /^rnfim*. HKARING, DKCRIE, AND 8UB8IQVSNT PROCCEDIXaS. 31T SscTiON II. — Hearing, Decree, and Subsequent Proceedings. The preliminary order having been obtained, the next subject for in- vestigation is the manner in which the cause iis heoi'd, and the decree jierfocted. ' A defendant, againut whom an order to take a bill pro ccnfcsso is made, is at liberty to appear at the heai'ing of the caui^e ; and if ho waivoH all objection to the oi-der, but not otherwise, he may bo heard to argue the case upon the merits, as st:itcd in the bill.^ Our Order 112 is taken from this English Order, and provides that *< A defendant, against whom an order to take a bill 2>fo confcsso has been "mode, is at liberty to appear at the hearing of the cause ; and if ho "waives all objection to the oi-der, but not otherwise, he may be heard to •'argue the case upon the merits as stated in the bill." OurOixier 113 also provides that " Upon the hearing of a cau^!0 in which a bill has " been ordered to be taken pro confesso, such a decree is to bo made as "the Court thinks just ; and the decree so made is to bo absolute in the " following cases, viz. : — "I. — AVhere an office copy of the bill has been served personally, or " where service has been accepted by a solicitor under Order 47. * "II. — Where notice of a motion to take the bill pro confesso has been " served under Order 107. " III. — Where the defendant has appeared at the hearing and waived "all objections tolhe order to take the bill pro confesso.^' This order is also taken from an English Order, XXII — 8. A de- I'endant appearing at the hearing, and waiving all objection to an order pro confesso, may show that the bill is open to demurrer for want of Equity. 3 And even though the defendant does not appear, the bill will be dismissed, if the plaintiff appeal's to have no Equity.* The Court will not hear any affidavits against the bill as confessed, the order fro confesso must first be set aside.* It may be here mentioned that Order 417 provides that " A cause may " bo set down to be heard pro confesso at any time after tho expiration "of fourteen days from the date of the order or note^ro confesf>o." ' For forms of decree when biU is taken pro confesso, see Brown v. Home, 8 Beav. GT() ; Seton, 1198» No. 1. ' Bdk- Ord. XXn.7; Greaves v. 6reave», liVny.iVi ud for form of docrve In Uiat case, te» Seton, 1188, No, S. ' Ortig T. Cfretn, 6 Grant, 240. * Sptidatt T. Jervts, i Dick, 682. * ir.Mfoy T. mWoiM, 5 U. C. L. J. 103. I wm "«' 878 TAKING BILLS PKO OONFCISO. ■it At the hearing of tho cause, the Court, upon reading the bill, and taking it to be true, will make such decree as seems just;' and in tho case of any defendant who has appeared at the hearing, and waived all objection to tho order to take the bill pro confesso, or against wnom tho order has been made after appearance by himself or his own solicitor, or upon notice served on him, the decree is to bo absolute.' Formerly, it was necessary that the Record itself should actually bo produced and read in Court, and the Clerk of Becords and Writs attended in Court with the recoi-d for that purpose ; now, however, the bill may be read at the hearing from an office copy without the attendance of tho Clerk of Eecords and Writs. Our Order 114 provides that "After a decree, f>undcd on a bill taken "pro confesso, has been passed and entered, if tho decree is not absolute "under Order 113, an office copy thereof maj' be served on the defend- ant against whom tho order to take the bill pro confesso was made, or *' his solicitor, together with a notice to the effect that if the defendant "desires permission to answer the plaintiffs bill and sot aside the do- ^' crce, application for that purpose must be made to tho Court within " the time specified in the notice, or the defendant will be absolutely " excluded from making such application." Our Order 116 provides that " If the notice is to be served within the jurisdiction of tho Court, tho time therein specified for such applica- tion to be made by the defendant is to be three weeks after service of the notice ; and if the notice is to bo served out of the jurisdiction, the time is to be specially appointed by the Court upon tho ex parte application of the plaintiff." Our Order 118 provides that " In pronouncing the decree, the Court, either upon the case stated in the bill, or upon that case, and a peti- tion presented by the plaintiff for the purpose, as the case requires, 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 may 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 estate of such sum or sums of money, as at the hearing, or any sub- sequent stage in the cause, the plaintiff seems to be entitled to : pro- > Ord. XXn. 6. The Court vritt only make aueh a decree aa it would have made, if the defendant bad appeared : BrUrly v. Ward, 16 Jnr. 77, V. C. K. B., which waa a forecloeure suit : see Haytui V. Bail, 4 Beav. 108; Stanley v. Bond, 6 Beav. 421 ; aimmontU v. Fallts, a Jo. « Ltt. 489. '* Ord. XXn. 8; Grover and Baker Sewing Machine Company v. Mittard, 8 Jnr. N. S. 718, V. C. W^* « « it 41 41 tt U <( « 4i 4t 4t HBARINQ, DKORXl, AND 8UB8BQUBNT PROCKBDINUS. 819 *i vidod that, unless the decree is abfitolute, such payment is not to be " directed without security being given by the plaintiff for restitution, «in case the Court afterward should think fit to order restitution to bo "made."' Our Order 328 provides that " A defendant, waiving all objection to " tbe order to take the bill pro confesso, and submitting to pay such "costs as the Court directs, may have the cause roheai'd upon the "merits stated in the bill." Order 116 provides that "Whore a decree is not absolute under Or- "der 113, the Court may order the same to bo 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, whore the dccrde L\^ been served within "the jurisdiction. "2. After the expiration of the time limited by the notico provided "for by Order 115. <'3. A^ov the expiration of three years IVom the < .te of the decree, "where a defendant has not been served with a co))y thereof: and the "o/der may be made, either on the first hearing of the motion, or on the "expiration of any further time which the Court may alio"' to tho "defendant for presenting a petition for leave to answer tho bill."=' Where a defendant was out of the jurisdiction, service of an office copy of tho order, limiting the time within which he might apply for leave to answer the bill, and set aside the decree, was held to be a suf- ficient notico under tho rule above referred to.' > i'.i'' The application to the Court, to dispense with service of the decree, should be made after the expiration of tho three yeai-s mentioned in Order 116.« . Where proceedings are to be taken against an accounting defendant in the Master's OfHce, he should be served with the usual warrants as well as with an ofiice copy of the decree ; and no proceedings ought to be taken in the Master's Office until the expiration of the time limited for setting aside the decree.* ' See Lett v. RaniaU, 7 Jur. 1075; 2Vr v. Torr^ Johns 660. ' For form of order, see Seton, 1180, Xo. 2. ' TrtUy V. Kttfe^ 16Beav. 8) : 16'Jar. 443. * Vmghan v. Sodgtrt, 11 Beav. 165 ; James v. Xiee, 6 De O. H. & G. 461 : 18 Jur. 818. It was dis- MDsed wltii before the expirstion of the three years, however, in Kerrp v. Latter, 16 Jur. TIO, M. K.; Benbow v. Daviu, 13 Beav. 431; and soe Brierly v. Ward, 15 Jar. 177, V. C. K. B. These esses are, it is conceived, overmled by James v. Bic«; and see nurgood v. Cam, 11 W. a. 897, M, R, * 1 ^»i«>l (4 Bz.) 4S7 ; Golden v. Newton, Johns. 730; and see King v. Bryant, 8 M. A C. 101, 196 : tlji-i* 380 THl DEPBirCB TO A SUIT. I; DEMURRERS. Section I. — The General Nature of Demurrers. Whenever any ground of defence is apparent upon tho bill itself. cither from the matter contained in it, or from defect in its frame, or in the case mado by it, tho appropriate mode of defence is by demurrer.* Demurrers are now of much less frequent occurrence than formerly: the readiness with which the Court gives tho plaintiff leave to amend his bill rendering it inexpedient to demur, in any case, where tho de- fect in tho bill can be cured by amendment j^ but where tho question raised by tho bill can be properly determined on demurrer, a defendant, by neglecting to demur, injures his position with respect to tho cost.-* of the suit. Thus, bills dismissed at tho hearing, have often been dis- missed without costs, on tho ground that they might have been de- murred to ;' or tho defendant has only been allowed tho same costs as ho would have received if ho had demurred.* The defendant is not « Ld. Bed. 107. 9 As to the expediency of demurring, see Wigram on Disc., 158. » Jones V. Davidt, 4 Rusb. 277 ; HiU v. Seardon, a 8. & 8. 481, 439 ; HoUingneorth v. Shakethcifl. 14BeaT.49a: Webby. Ji^land.99 Bear. 44: 7Jur. N. 8. 158; Ernett v. Wei««, & Jar. N. S 146 : 11 W. R. 906, V. 0. K. ; Neebitt v. Berrtdge, 9 Jur. N. 8. 1044 : 11 W. R. 44(i, M. K. ! but ■«e Morocco Company v Fry, 11 Jur. N. 8. 76, 78 ; 18 W. R. 810, 813, V. C. 8. * Oocfflrey v. Tucker, 9 Jur. N. 8. 1188: W W. R. 83, M. R. BBMUBBERS. 38a jostified in neglecting to demur to the bill, because it contains charges of fraud which ho is desirous of answering. > The Court sometimes declines to decide a doubtful question of title on demurrer : in which case, the demurrer will bo overruled, without prejudice to any question.^ A demuiTor may also bo overruled, with liberty to the defendant to insist upon the same defence by answer, if tho allegations of the bill are such that the case ought not to be decided without an answer being put in. > A demurrer has been so termed, because the party demurring demor- atur, or will go no further : the other party not having shown sufficient matter against him ; and it is in substance an allegation by a defendant, which, admitting the matters of fact stated by tho bill to be true, shows that, as they are therein set forth they are insufficient for the plaintiff to prococd upon, or to oblige the defendant to answer ; or that, for some reason apparent on tho face of the bill, or because of the omission of sorao matter which ought to be contained therein, or for want of some circumstance which ought to bo attendant thereon, tho plaintiff ought not to be allowed to proceed. It, therefore, demands judgment of the Court, whether tho defendant shall be compelled to make any further orothcransvvcr to tho plaintiff's bill, or that particular part of it to which the demurrer applies.* A demurrer will lie wherever it is cleai* that, taking the chUi-gos in the bill to bo true, the bill would be dismissed at the hearing; ^ but it must be founded on this : that it is an absolute, certain, and clear pro- position that it would be so; » for if it is a case of circumstances, in which a minute variation between them as stated by the bill, and those established by the evidence, may either incline tho Court to modify tho i-elief or to ^ant no relief at all, tho Court, although it sees that tho i^ranting tho modified relief at tho hearing will bo attended with considerable difficulty, will not support a demurrer. Thei-eforo, w^^ero a bill was filed for the specific performance of an agreement, and the case turned upon the point, whether the facts st :,ted amounteu to a jwrfect agreement, Lord Rosslyn thought that, although tho cir- cumstaiices, as stated in tho bill, amounted more to a treaty than ' Nenbitt V. Jierridge, ubi gup. ' Brow;i«twdv. JSa ward*, 2 Yes. 8. 2*1,847; Mortimer \. Hartley, 3 Do G. & S. 310; Evam v. EmM, 18 Jur. 6«6, L. JJ. ; Cochrane r. Wlltiii, 10 Jur. N. S. 162, L.JJ. ; Ld. Red. 154, n. (p). ' CoUingwoodv. Rimell, 13 W. R. 63, L.JJ.; Lautour v. Attorney- General. 11 Jur. N. 8. 48: 18. ' Ld. Red. 107. ' UUtmon V. Hair, 2 Yes. J. «6: 4 Bro. C. C. 270; Hovenden v. Lord Annedey, 2 Sch. & Lef. 60"» 638. • Brooke v. Hewitt, 3 Yes. 253, 266; Morrlmn v. Morrison, 4 Drew. 815. '1f 384 OENKRAL NATURB OF DIMURRER8. a complete agreement, the question whether it was an agreement or not depended very much upon the effect of the evidence, and therofore ov:^r- ruled the demurrer. ■ As a demurrer proceeds upon the ground that, admitting the facts stated in the bjjl to be trae, the plaintiff is not entitled to the relief he seeks, it is held that, at least for the purpose of argument, all the mat- ters of fact which ai-e stated in the bill are admitted by the demurrer,* and cannot be disputed in arguing the question whether the defence thereby made be good or not ; and such admission ox|;ends to the whole manner and form in which it is there stated. Upon this ground, where a bill misstated a deed, by alleging it to contain a proviso which it did* not. Lord Cottenham, upon the argument of a demurrer to the bill, rc- fVised to allow the defendant's counsel to refer to the deed itself, for the puri)0se of showing the incorrectness of the manner in which it was set out: although the bill contained a reference "for greater certainty as to its contents, &c.," to the deed, as being in the custody of the defend- ants. His Lordship said, that to hold otherwise would be to give the defendants an advantage, depending upon the accident of their having the custody of the document which the bill purported to set out, and would in effect be to decide the question raised by the demurrer, upon matter which was dehors the record.' In this case, the object of refer- ring to the deed Avas to contradict a statement in the bill ; and where the object is to support, and not contradict, the plaintiffs case, it ap- pears that the Court will still refuse to look into the document.* It is also to be remarked, that where a bill professes to set out a deed inaccurately, and alleges, as a reason for so setting it out, that it is in the possession of the defendants, a demurrer to the bill cannot bo sus- tained, although, according to the terms of the deed, as stated by the plaintiff, he can take no title under it : because the Court will not, under such circumstances, bind the plaintiff by the statement he has made, which he alleges to be inaccurate, and which the defendant, therefore, by his demurrer admits t'" be so. In a case of this description-, if the defendant means that the Court should at once be called upon to deter- mine the true construction of the deed, ho must answer.* • Brooke v. Hewitt, ubi sup. ; but pcc Beeves v. Greenwich Tanning Company, 3 II. & M. 51. » E. I. Companv v. Henchman, 1 Ves. J. 289; and aeeNesbitt v. Berridge^ 9 Jur. N. S. 10*1: H W. K. 440, M. R. » Campbell v. Mackay, 1 M. & 0. 008, (US ; Cuddon r. Tite, 1 Glff. .395. * Hartntr v. Gooding, 3 De O. & S. 407, 410, 411 : 13 Jur. 400, 402; see, howovor. Weld v. Bonhain, 2 S. & 8. 91 ; and n» to Acts of Parllainont, see Wilton v. Stanlume, 3 CoU. 629 : 10 Jur. 4Sl ; Apperlij V. Page, 1 Phil. TJtt. 785: 11 Jar. 271; BoMey v. Birkenhead Junction Railway,, M Beav. 433,443 : 14 Jnr. 119, 122. » HV/fl'A' V. /VK»ipi|lM' "* ' • , - ^ "tMNtiBj % ^- 388 ,>'iii*y>i' DEMURRERS. ''Vh 1 1 fendant's title, and not to that of the plaintiff. In cases of this nature, the Court will allow a defendant to protect himself by demurrer from the particular discovery sought : though it will not protect him from the relief prayed, if the plaintiff^s title to it can be established by other means than the discovery of the defendant himself Thus in a bill to inquire into the reality of deeds, on a suggestion of forgery, the Court has entertained jurisdiction of the cause, though it does not oblige the. party to a discovery, and has directed an issue to try whether the deeds were forged or not.i It is proposed now to consider : first, the grounds of demurrer to the relief; and then those of demurrer to the discovery only. Demurrers to the relief may be either : To the jurisdiction ; the person ; or the matter of the bill, either in its substance or form. Demurrers to the jurisdiction are either on the ground : I. That the case made by the bill does not come within the description of cases in which a Court of Equity assumes the power of decision; or, II. That the subject-matter is within the jurisdiction of some other Court.2 I. It would be a task far exceeding the limits of this work, and not strictly within its object, to attempt to point out the cases in which a demurrer will hold to a bill, on the ground that the case made by it does not come within the ordinary cases for relief in a Court of Equity. It ds sufficient to direct the reader's attention to the admirable statement of the general objects of the jurisdiction i of a Court of Equity, which is to be found in Lord Redesdale's Treatise upon Pleading ;3 and to observe, that if the case made by the bill appears to be one on which the jurisdiction of the Court | does not arise, a demurrer will hold. And it is to be observed, that a demurrer will hold equally, where the defect arises from! the omission of matter which ought to be contained in the bill, or 1 Per Lord Hardwicke In Broiontword v. Eduardt, a Ves. S. 246; AttomeyOeneral y.&M,\ Prec. In Ch. 214. 2 A demurrer for want of equity, includes a demurrer for want of Juriwliction : '^"V*'*'' UniwnUy of London, 88 L. J. Ch. e26 : 10 Jur. N. 8. 689. V. C. K. ; see alio Bar^«ri. Bam 4 Drew 666 : 6 Jur. N. 8. 1197 ; Cooknty v. Anderton, 81 Beav. 452 : 8 Jur, N. 8. IW) ; 1 W"; J. 4 S. 865 : 9 Jur. N. .736. As to the form of demurrer for want of Jurisdiction, m Baiof j V. Barber, ubi tup. 8 And see Fonb. on Si\. ; Coop. Eq. PL ; Story Eq. Jur. ; Story Eq. PL DIFFERENT GROUNDS OF DEMURRER. 389 i of some circumstance which ought to be attendant thereon for the purpose of bringing the case properiy within the jurisdiction ; as where it appears that the case is such as, under no circumstance, can be brought within the ordinary scope of a Court of Equity. Thus, where it appears on the face of the bill that the defendants were, at the time of the institution of the suit, resident in a for )ign country, and that the suit does not relate to any of the subjects la respect of which the Court is warranted in exercising jurisdiction against persons so resident, a demurrer for want of equity will be allowed.^ II. A demurrer, because the subject-matter of the suit is within the cognizance of some other Court, may be on the ground that it is within the jurisdictio'. either: 1. of a Court of Common Law • 2. of the Court of Probate ; 3. of the Insolvent Court ; or, 4. of some statutory jurisdiction. 1. If it appeal's by the bill, that the plaintiff can have as effectual lid complete a remedy in a Court of Law as in a Court of Equity, I and that such remedy is clear and certain, the defendant may demur. Thus, where a bill was brought by the executrix of an attorney, for money due from the defendant for business done as an attorney, the Court allowed a demurrer to the relief: because the remedy was at Law, and an Act of Parliament had pointed out a summary method of obtaining it.* And where the plaintiff had contrived to purchase goods for export to America, and, after the ship had sailed with them, it was discovered that there had been fraud used in the quantity and quality of the goods, but the plaintiff, being threatened with an action, paid the original price under a protest that he would Iseek relief in Equity, a demurrer was allowed to a bill, when it was jifterwards brought for a discovery and account : though it is quite j dear that, if the plaintiff had not paid the money, the Court would 'e granted him relief, by injunction, against the threatened action |ior the price.* Upon the same principle, if a bill is filed for an jaccount, where the subject is matter of set-off, and capable of proof ^ HJ^ ^'^ '• "^ CohmMne v. CkiehetUr, 2 PhU. 27 ; 1 C. P. Coop. t. Cott. 205 : 10 Jur. (HSS. nrfomu of demurrar for want of equity, see 2 Van. Hey. 74, 76, 80, 92. ' ^'"^J- "IndMwn. vH urn. ; and boo Foley v. MaUiardei, I De O. J. & S. 880 : 10 Jur. N. S. m; &HMM/T. Rofftn, iDe O. J. & S. 806 ; and ante £7 ^' Own, 8 Atk. 740: Amb. 109. For form of the demurrer, see ib. ; Beamea on Ooet* 8W;«lioJf«eT. P««ri(m,MBeaT. 196. » * ««<« T. jyvor. 7 V«a. SI7, S61. 390 DEMURRERS. at Law, it may be demun'ed to.^ And so, if a bill is filed for the possession of land, or an Ejectment Bill, as it is called, it may be demurred to, even though the bill charges the defendants to have got the title-deeds, and to have mixed the boundaries, and prays a discovery, possession, and account : for the plaintiff, though he is e:7/'^,v DEMUllllUllH. 393 which it in uecoHHary the bill should aver to be existing between the plaintiff and defendant, and the application of the r'le which requireu that the bill should show that the defendant has an inter- est in the subject-matter of the suit. It also points out the exceptions to the rule, in certain cases in which persons, who have no interest in the subject-matter, may be made parties for the pur- pose of eliciting discovery from them, and in which they are pre- vented from availing themselves of a demurrer, to avoid answering the bill. » 4. It has been before stated ' as one of the requisities to a bill that it should pray proper relief : to which may be added, that if for any reason founded upon the substance of the case, as stated in the bill, the plaintiff is not entitled to the relief he prays, the defendant may demur. Many of the grounds of demurre;, already mentioned, may perhaps be reft rred to this head ; and in every instance, if the case stated is such that, admitting the whole bill to be true, the Court ought not to give the plaintiff the relief or assistance he requires, either in the whole or in part, the defect thus appearing on the face of the bill is a sufficient ground of demurrer. It is to be observed, in this place, that the question upon a de- murrer of this nature is, frequently, not whether, upon the case made by the bill, the plaintiff is entitled to all the relief prayed, but whether he may, under the prayer for general relief, be entitled to some relief ^ The question, how far the defects in the relief prayed in the prayer for special relief may be supplied under the prayer for general relief, which forms part of every bill, has been before discussed* ; it is only necessary now to remind the reader, that such relief must be consistent with the special prayer, as well as with the case made by the bill. i I I 5. It has been before observed, that every bill must be for a matter of sufficient value : otherwise, it will not be consistent with the dignity of the Court to entertain it.*^ The usual method of taking advantage of an objection of this nature is, as we have seen,* by motion to take the bill off the file. There is no doubt, ij^i 1 rt. 2/6. 3 15. 4 Ante. 6 Id. 6 /6. 394 DIFFERENT GROUNDS OF DEMURRER, however, that if che objection appears upon the face of the bill, a demurrer, upon the ground of inadequacy of value, will be held good. -•' •-" ■..^.--. .w.. ' - - ■ ,..- 6. A bill must not only be for matter of a sufficient value, but it must be for the whole matter. It is not, however, necessary to discuss here the principle and application of this rule, the reader's attention having been already fully called to it.^ All that need be said is, that if it appears by the bill that the object of the suit does not embrace all the relief which the plaintiff is entitled to have against the defendant, under the same representation of facts, it will be liable to demurrer, unless it comes within any of the excep- tions before pointed out. ^ ,, , ., , , ., ,. 7. The question : who are the proper parties to be brought before the Court, for the purpose of enabling a Court of Equity to do complete justice, by deciding upon and settling the rights of ail persons interested in the subject of the suit, so as to make the performance of the order of the Court perfectly safe to thoc> who are compelled to obey it, and to prevent future litigation, has ken before so fully discussed,^ that nothing remains to be said upon it here, further than to remind the reader, that wherever a want of parties appears on the face of a bill, it is a cause of demurrer; unless a sufficient reason for not bringing them before the Court is suggested, or unless the bill seeks a discovery of the persons inter- ested in the matter in question, for the purpose of making them parties* ; but it is no answer to a demurrer that the addition of the pu-ty would render the bill multifarious.^ In consequence of the alterations in the rules of the Court as to parties, before pointed out, demurrers for want of parties are now of comparatively rare occurrence.^ i ., , |,,;i , * - 8. The subject of multifariousness has b<^en already discussed ^j and it need only be added, that a bill is demurrable on thi^ ground; '.4' *i 1 find. 2 Hid. / . 3 Ante. ' ^ >] .■ , ■. ' , , fi . . , '>'{■;■ AlA. Red. /So; ante. 6 Lumsden v. Froier, i M. ft C. 589, 602; and as to amending in such cases, see S. C. ; Aticf^iT | General v. The Merchant Tailors' Company, i M. & K. 189, 191, and ante. 6 For forms of demurrers for want of parties, see 2 Van. Hey. 8i ; as to demurrer for misjoinder, sm Smith V. Bogart, 10 Grant. 560; Garishore v. Gore Bk. 13, Grant. 187; Westbrcok v. Attmtr General, wXjxxcA. ifi^. ., ^ 7 AHt*,etseq. and that a dei and it is not which are mul 9. In detem since the plain Courts of Squ of Limitations although suits and as to all e( the statute.^ purposes, to su tion of lapse o plea, and not : Hardwicke ref his reason, thai of time, as infe advantage of s This, however, in this case bel has any reason from the lengtl clearly the rule objections in ai advantage of b Where then whether the C from the facts C'^iifirmation, o: and not an infe 1 Jarf India Compat Van. Hey. 79, 80; J Hwenden v. Lord Slniowrfv. Hopkin. BamstoH, 10 Ves Cholmondeley v. 4 * Ves. S. 109. See 5 Ld. Red. 212, n. ; ,; ^v.Lord Ann SiJJ. SI ; Bampto iCutUerlv. Creasy PPT ) rl DEMURRERS. 395 and that a demurrer for multifariousness goes to the whole bill, and it is not necessary to specify the particular parts of the bill which are multifarious* ; , , v • , ,r ,, •, 9. In determining whether the length of time which has elapsed since the plaintiff's claim arose is a bar to the relief which he asks, Courts of Equity have considered themselves bound by the Statute of Limitations, 21 Jac. I. c. 16, as to all legal titles and demands : although suits in Equity are not within the words of that statute* ; and as to all equitable titles and demands, they act in analogy to the statute.^ The modem Statutes of Limitations apply, for most purposes, to suits in Equity, as well as actions at Law. The objec- tion of lapse of time was formerly considered a proper ground for a plea, and not for a demurrer ; and in Gregor y. Molesfworthy^ Lord Hardwicke refused to allow a demurrer of this nature, alleging as his reason, that several exceptions might take it out of the length of time, as infancy, or coverture, which the party should have the advantage of showing, but which cannot be done if demurred to. This, however, can hardly be a sufficient reason for the distinction in this case between a plea and a demurrer, as the plaintiff, if he has any reason to allege to take his case out of the bar, arising from the length of time, should show it by his biU ; and it is now dearly the rule of the Court, that the Statute of Limitations, or objections in analogy to it, upon the ground of laches, may be taken advantage of by way of demun*er, as well as by plea.* •*<< \ Where there is no positive limitation of time the question whether the Court will interfere or not depends upon whether from the facts of the case, the Court will infer acquiescence, or Cafirmation, or a release. Such inference is an inference of fact, and not an inference of law, and cannot be raised on demurrer ^ ; 1 EaA India Company v. Coles, 3 Swanst. 142 n. For forms of demurrers for multifariousness, see a Van. Hey. 79, 80; Cole v. Glover, 16 Grant. 392; Mutchmore v. Davis, 14 Grant. 346. J Hmenden v. Lent Annesley, 2 Sch. k Lef. 630, 631 ; Nony v. Nony, 1 S. & S. 568, 580. 3 In Bond y. Hopkins, 1 Sch. & Lef. 428; Hovemiem v. Lord Annesley, ubi sup. ; Stacklumse v. BamstoH, 10 Ves. 466 ; Ex parte Dewdney, 15 Ves. 496; Beckford v. Wade, 17 Yes. 96 ; Lord Cholmondeley v. Lord Clinton, 2 J. & W. i, 161, 192. 4 * Ves. S. 109. See also Aggas v. Picherell, 3 Atk. 225 ; Deloraine v. Browne, 3 Bro. C. C 633, 646. 5 Ld. Red. 212, n. ; Saunders v. Hord, i Ch. Rep. 184; Jenner v. Ttacey, 3 P. Wms. 287 n. ; Hoven- «« V. Lord Annsley, 2 Sch. k Lef. 607, 637 ; Foster v. Hodgson, 19 Ves. 180 : Hoare v. Peck, 6 Sim. SI ; Bampton. v. Birchall, 5 Beav. 67, 76 ; Prance v. Sympson, Kay 678, 680 ; Smith v. Fox, « Hare, 386, 391 ; Rol/e v. Gregory, 8 Jur. N. S. 606: 10 W. R. 711, V. C. K. 6C«(-.■:,«■ • • i i 398 DIFFERENT GROUNDS OF DEMURRER. making the discovery sought, he may obviate a demurrer by ex- pressly waiving his right to the penalty or forfeiture in his bill •} the effect of which waiver is, to enable the defendant, in case the plain- tiff should sue him for the penalty, or endeavour to take advantage of the forfeiture, to apply to the Court for an injunction to restrain him from proceeding^. But where the forfeiture or penalty is not of such a nature that the plaintiff can, by waiver, relieve the defendant from the consequence of his discovery, a demurrer will hold ; for it is a general rule, that no one* is bound to answer so as to subject himself to punishment, in whatever manner that punishment may arise, or whatever may be the nature of that punishment : whether it arises by the Ecclesiastical Law, or by the law of the land*. This rule is not confined to cases in which the discovery must necessarily subject the defendant to pains and penalties, i»ut it extends to cases where it may do so,^ If, therefore, a bill alleges any thing which, if I confessed by the answer, may subject the defendant to a criminal [ prosecution^, or to any particular penalties, as maintenance*) champerty,'^ simony ,8 or subornation of perjury*, the defendant may object to the discovery. In the application of this principle it has been held, that a married woman will not be compelled to answer j a bill which would subject her husband to a charge of felony.^'' It is not necessary to the validity of an objection of this nature, that the facts inquired after should have an immediate tendency to criminate the defendant ; he may equally object to answering the | circumstances, though they have not such an immediate tendency". This was very clearly laid down by Lord E[don,m Paocton\.DougJm^, | in which his Lordship said, " In no stage of the proceedings in tl Court can a party be compelled to answer any question, accusing | 1 Ante. For form of demurer, where the penalty of forfeiture is not waived, see 2 Van. Hey. 81 2 Ante. 5 Browaiumrd t. Eduiarde, 2 Ves. S. 243, 245 : Uaniaon t. Sowtheote, 1 Atk. 628, 638 : see alao Pan- hunt V. Lowten, 2 Swanst. 214 ; Hare on DiscoTery, 131-132, where the cases are classed. 4 Harrison v. SorUhcote, 1 Atk. 539. 6 East India Company v. Canvf^jel, I Ves. S 246 ; Chetwynd v. lAndon, 2 Ves S. 450 ; Carttw^*''' i Green, 8 Ves. 405 : Clandge v. Hoare, 14 Ves. 69, 65 ; Maecalium v. Turton, 2 Y. & J. 183. For (om | of demurrer in such case, see 2 Van. Hey. 83. 6 Penrice v. Parker, Rep. t. Finch, 76 ; Sharp v. Carter, 8 P. Wms. 376 ; WallU v. Duie of Port- land, 8 Ves. 494 ; affirmed by H. L. *. 761 ; Mayor of London v. Ainsley, 1 Anst. 168 ; Scott v. Mm, Johns. 220, 828 : 6 Jur. N. S. 858. T Hartley v. RusseU, 2 S. & S. 244, 26 >. 8 Attomey-Oeneral v. Svdel, Free. Ch. 214 ; Parkhurst v. Lowten, 1 Mer. 391, 401. , 9 Selby v. Crew, 2 Anst. 504 ; Baker v. PrUchard, 2 Atk. 889; as to discovering returns made to* oome Tax Commissioners, see Mitchell v. Koecker, 11 Beav. 880 : 18 Jur. 797. 10 Cartwright v. Green, 8 Ves. 406, 410 ; ante. 11 East India Company v. Cam^el, ubi «up. ■ see also Lee v. Reed, 5 Beav. 881, 886. 12 19 Ves. 226, 227; and see MaecaUumv. Turton, and Claridge v. Hoare, uM 'if. 1 WrotMey v. Boiduh, 3 P. Wms. 236, "39 ; ante. * 2 Attuniey-Geiieral v. Lucag,2 Hare, 566. 3 Cited Chauncey v. Tahourden, 2 Atk. 393 ; Chancey v. Fenhoulet, 2 Ves. S. 26.5 ; Lucas r. Evans, 3 Atk. 260 ; Hambrook v. Smith, ubi s^ip,; see contra Monnim v. Monnins, 2 Ch. Rep. 68. 1 Mtorney-Qeimral v. Duplessis, Parker 144. 5U&12Will.lu. 0.4, 8.4. 6 anrtfc V. Read, 1 Atk. 526 ; Harrison v. Southcote, ib. 528 ; 2 Ves. S. 389, 396. . 7 BnUlerv. Allington, 3 Atk. 463, 468. ™!! 4(H DIFFERENT (JROIJNDS OP DEMURRER. A defendant, in order to protect himself from answering, on the ground that the discovery of the matters inc^uired after, would expose, or tend to expose, liiiu to penalties, must state, upon oatli, his belief that such w«uld be the case : a submission of the questiuu to the Court is not sufficient.^ agreement e II. If a defendant lias, in conscience, a right equal to that clainiLtl by a person filing a bill against him, thoug.i not clothed with a perfect legal title, a C(jurt of Equity will not compel him to make any discovery which may hazard his title ; and if the matter appear clearly on the face of the bill, a demurrer will hold.^ The most obvious case is that of a purchaser for a valuable consideration, without notice of the plaintiff's claim.^ Upcm the same ground, a jointress may, in many ca es, demur to a hill filed against her for a discovery of her jointure deed, if the plaintift' is not capable of con- firming, or the bill does not offer to confimi, her jointure, and the facts appear sufficiently upon the face of the bill : though, ordinarily, advantage is taken of this defence by plea.4 III. A defendant is not compellable to discover anything imma- terial to the relief prayed by the bill.^ Upon this ground, upon a bill filed by a mortgagor against a mortgagee to redeem, and seeking a discovery whether the mortgagee was a trustee, a demurrer to the discovery was allowed : for, as there was no trust declared upon the mortgage deed, it was immaterial to the plaintiffs whether there was any trust reposed in the defendant or not.^ So, where a bill wa;; filed by the lord of a borough, praying a discovery whether a perfon applying to be admitted a tenant was a trustee or not, a demurrer was allowed : '^ and where a bill was brought for real estate, and sought discovery of proceedings in the Ecclesiastical Court upon a grant of administration, the defendent demurred, successfully, to that discoveiy.'^ In like manner, where a bill was filed to establish an 1 Scott V. Miller, (No. 2.) Johns, 328 ; 6 Juf. N. S. 858. 2 Ld. Rod. 199 ; see Glc!/i) v. Lc.gh, 4 Mad. 193, 207. 3 Ld. Red. 199 ; Jermrd v. Sauiuicrs, 2 Ves. J. 458 ; see Sweet v. Southcote, 2 Bro. C. C. 06. 4 Ld Red. 199; Chaiiiberlain v. Knapp, 1 Atk. 62: Scnhowie v. Earl, 2 Ves S. 450 ; fee also Leech v. Trollop, ib. 0G2 from whicli it appears, that a widow is not bound to discover lier join- ture deed, by her answer (even wlierc tlie biU offers to confirm it), till the confirmation has bctn cffecte . 5 Ld. Red. 191. • 6 Harvey v. Morris, Rep. t Finch , 214. 7 Lord Montague v- Dudmati, 2 Vea. S. 396, 398. S Bakery. J'ritcliard, 2 Atk am. • ^-'•^i.V' •■ DEMUURERS. 405 agreement ontored into hoforo nmrriago, by which a separate estate was s(3cured to the defendant's wife, and ))raying a discovery of several unkindnesses and hardships which the defendant, as it was preteiKled, had used towards his wife, to make her recede from tho agreement, and the defendant demurred to tlie discovery, the de- murrer was allowed. ^ But in general, if it can be su])|)osed that the discovery may in any way bo material to the plaintiff, for the purposes of tho suit, the defendant will be compelled to make it; ^ thus, where a bill called for a discovery of cases laid before counsel, and their opinion, Lord Eldon held, that the plaintiff had no right to a discovery of the opinions of counsel, but only of the cases. ^ And now, the cases, if prepared subsequently to, or in contemplation of, the litigation, ai'e also protected.* IV. The last case brings us to the consideration of those causes of demurrer to discovery, which are the consequence of the privi- lege resulting from professional confidence. The privilege conferred by this species of confidence applies, though in a different degree, to both the adviser and the client. The application of the rule, with regard to professional confidence, to discovery required from the client, has been exemplified in the case already referred to of Richards V. Jackson, in which Lord Eldon, as we have seen, held, that if the demurrer had been confined to the discovery of the opi- nions, it would have been good ; and the rule has since been extended to exempt a defendant from the discovery of the case itself, and to all confidential communications which have passed in the progress of the cause itself, and with reference to it before it was instituted^ ; and also to letters written by a defendant to his solicitor, after a dispute between him and the plaintiff had arisen, with the view to taking the opinion of counsel upon the matter in question, and which afterwards became the subject of the suit." The rule also extends to all observations, notes, and remarks made by counsel upon their briefs, but the briefs themselves, so far as they are copies i 'i llicksv Nelth<>tpe, IVcm. 204. ' '' 2Ld Red. 193. ■ : -!' ■ v .<::w.^->) 3 iJic/iaciid' V. ./acfrs»»t, 18 Ves. 472. . •■■■ ■ -* - ; = ' ■- •■-■'-. .v'^-vVt, ; 4 Post. » 5 Oarlaiid v. Scott, 3 Sim. 396 ; Bolt(»i y. Corporation of lAwrpool, ib. 467, 487 ; 1 M. & K. 88, 93 ; augltes V. Biadnfph, 4 Russ. 190 ; Woods v. Woudit, 4 Hare, 83, 86. 8 Vent V. Pacey, i Rugs. 193 ; Oreenough v. Gaskell, 1 M. & K. 98, lOl. ^ H^ 406 DIFFERENT GROUNDS OF DEMURRER. mm ,of matter otherwise j^iihlici juris} and counsel's endorsement, or note of any order made by the Court,'' are not privileged. The rule has been adopted out of regard to the inierests of justice, which cannot be uph»)lden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations, which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources : deprived of all professional assistance, a man would not venture to consul*, any skilful person, or would only dare to tell his counsel half his case.^ Unless, however, the communication has a direct reference to the subject of the dispute, the party himself has no i)rivilege : he is, in other respects, bound to disclose all he knows and believes and thinks respecting his own case ; and he must disclose the cases he has laid before counsel for their opinion, unconnected with the suit itself* . ^ ,•, Sir James Wigram, V.C, has stated the history of the law upon this subject, in the following terms : " The first point decided upon this subject was, that communications between solicitor and client pending litigation, and with reference to such litigation, were privi- leged ; upon this there is not at this day any question. The next contest was upon communications made before litigation, but in contemplation of, and with reference to, litigation which was ex- pected and afterwards arose ; and it was held that the privilege extended to these cases also. A third question then arose, with regard to communications after the dispute between the parties, followed by litigation, but act in contemplation of, or with reference to that litigation ; and these communications were also protected. A fourth point which appears to have called for a decision, was the title of a defendant to protect from discovery in the suit of one party, cases or statement of fact made on his behalf by or for his solicitor or legal adviser, on the subject-matter in question, after 1 Walsham v. Stainton, 2 H. & M. 1. 2 Nieholly. Jonei, 13 W. R. 461, V. C. W. 3 Per Lord Brougham in Oreenough v. Gaakell, 1 M. & K. 103. ' 4 nid, 100, 101. 6 Bolton \. Corporation of Liverpool. 3 Sim. 467,487; 1 M. & K. 88,93; nvffhet v. Eiddu!i;hA Rubs, 190 ; Vent v. Paeey, ib. 193; Clafett v. Phiilipa, 2 Y & C. C, C. 82, 86: 7 Jur. 31. DIFFERiSNT GROUNDS OF DEMURRER. 407 litigation commenced or in contemplation of litigation, on the same subject, with other persona, with the view of assorting the same right. This was the case of Ccmibe v. The Corporation of London.^ The question in that suit was the right of the coii)oration to certain metage dues, and the answer stated that other persons had disputed the right of the corporatioj' to metage, and that they had in their possession cases which had been prepared with a view to the asser- tion of their rights against such other parties, in contemplation of litigation, or after it had actually commenced ; Sir J. L. Knight Bruce held, that those cases, relating to the same question, but having reference to disputes with other persons, were within the privilege ; and I perfectly concur with that decision.'"-' The case before Sir James Wigram was a bill for a specific per- fi)rmance by a purchaser, and during the treaty for the sale and purchase of the estate, but before any dispute had arisen, the de- fendant, the vendor, from time to time consulted his solicitor on the subject, and written communications passed between them. A question arose, upon a motion for the production of documents, whether these communications were privileged, regard being had to the circumstance that they took place before any dispute arose, though with reference to the very subject in respect of which that dispute had since arisen ; and his Honor decided, ciiiefly upon the authority of Radcliffe v. Fursman,^ that such communications were privileged, so far only as they might be proved to contain legal advice or opinions, but not otherwise.'* I The case of Radcliffe v. Fursman is commonly referred to as a leading case, upon the extent to which the privilege applies, in pro- tecting cases laid before counsel for their opinion. The defendant, in that cause, demurred to so much of the bill as required him to discover an alleged case, the name of the counsel, and the opinion given upon it. The demurrer v» as overruled as to the first point, but allowed as to the second and third by Lord King, and the de- L cision was aflSrmed in the House of Lords. This decision has been ■'>: » 1 V. 4 C C. C. 631, 630 ; see also Holmes v. Baddeley, 1 Phil. 476, 480 : 9 Jur. 389. i Lord IValsing/iam v. Goodricke, 3 Hare, 124. 3 |"fo. P. C. Ed. Toml. 514 ; and see Momington v. Momington, 2 J. & H. 697. 4 See obsesvations of V. C. Wood on Lord Wabingham v. Goodricke in Manser v. Dix, i K. & J. 451, 453- 408 DIFFERENT GROUNDS OF DEMURRER. ■"i / frequently mentioned with disapprobation ; but having been made by the House of Lords, its authority is recognized, though only to the extent to which it strictly apj)lies. Lord Brougham, in com- menting upon it, observed : " Even by the report, and certainly by the printed cases, which I have examined, together with my noble and learned predecessor, it appears plain, that the record did not show any suit to have been instituted, or even threatened, at the time the case was stated for the oj)inion of counsel ; and the decision being upon the demurrer, the Court had no right to know auythinc which the record did not disclose." " So far this decision rules, that a case laid before counsel is not protected ; that it must be disclosed. But the decision does not rule that disclosure must be made of a case laid before counsel in reference to, or in contemplation of, or pending the suit or action, for the purposes of which the production in sought"^ The privilege arising from professional confidence, as it respects the legal advisers, is of a more extended nature : " As regards them, it does not appear that the protection is qualified by any reference to proceedings pending or in contemplation. If, touching matters that come within the ordinary scope of professional employment, they receive a communication in their professional capacity, from a client, and for his benefit, in the transaction of his business,or, which amounts to the same thing, if they commit to paper, in the coui-se of their employment on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them; and will not be compelled to disclose the information, or produce the papers, in any Court of Law or Equity, either as party or as witness. If this protection were confined to cases where pro- ceedings had commenced, the rule would exclude the most confiden- tial, and, it may be, the most important of all communications: those made with a view of being prepared either for instituting or defending a suit, up to the i^istant that, the process of the Court issued." " The protection would be insufficient if it only included communications more or less connected with judical proceedings; | for a person oftentimes requirea the aid of professional advice, upon I Bolton y. Corporation o/ Li^ierpool, i M. & K. 95, 96 : C. P. Coop. t. Brough, n, a5 : »*« '^ '"* Northern and Eastern Railway Company, 3 M. &; C. 355 : a Jur. 295. r'ii DEMURRERS. 409 the subject of his rights and liabilities, with no reference to any particular litigation, and without any other reference to litigatioii I reuerally than all human ■i.tfairs have, in so fai* as every transaction I may, by possibility, become the subject of judicial inquiry. It would be most mischievous, said the learned Judges in the Common Pleas,' if it could be doubted whether or not an attorney, consulted I upon a man's title to an estate, was at liberty to divulge a flaw." = In Herring v Glohery^ in which a solicitor was examined as a wit- ness. Lord Lyndhurst said, " Where an attorney is employed by a client professionally, to transact professional business, all the com- mimications that pass between the client and the attorney in the I cause aud for the purpose of that business, are privileged communi- I cations : and the privilege is the privilege of the client, and not of the t^torney." t ,;.. ,. .:,,,•.■ .,: i- Communications to a solicitoi- made, not by his client, but by third parties, and information acquired by such solicitor from collateral sources, are not privileged from disclosure, even though such com- munications are made to, and information acquired by, him in his character of solicitor, and solely by reason of his filling that char- acter. * Although the general rule is, as laid down in the above case, that a counsel or solicitor cannot be compelled, at the instance of a third party, to disclose matters which have come to his knowledge in the conduct of professional business for a client, even though such busi- ness had no reference to legal proceedings, either existing or in con- teuiplatJon: there is' no doubt that the privilege will be excluded, where the communication is not made or received professionally, and in the usual course of business, s and during the existence of the professional relation. Thus, a communication made to an attor- ney or solicitor, in the character of steward, either before the attorney or solicitor was employed as such, ^ or after his employ- -' ■ !■ * ■ ■ ' 1 Cromaek v. Heatheotc, 2 " - d. & Bing. 6. 2 Lord Brougham in Greenouyh v. Qaske.U, 1 M. ft K. 101, 102 ; C P. Coop. t. Brou-fli. 98. 3 1 Phil. 91 ; G Jur. 202 ; sue uls ■ Carpinael v. Poieia, 1 Phil. 087, 692 ; and that it is the privllago of the client, see lie Cameron's Coalhrook, e O. & S. 80, 33 ; S. C. nom. Gore v. Harris, 15 Jur. 1168. 5 Qrunovghv. Oaskeil, 1 M. & K 98, 104; Walker v Wildman, 6 Mad. 47 : see aleo Desborough v. llamm, 8 M. & C. 515 ; 2 Jur. 125. And the privilege is destroyed if the Information is sub- sequently communicated to the solicitor from another source, Lewia y. Pennington, 6 Jur. N 8. .„«8:8W. R. 466, M. R. • « C««« V. Piekering, 1 Veatrls, 197 • }IM- t .:.■ "W 410 DIFFERENT GROUNDS OF DEMURRER. ment has ceased, will not be protected from disclosure ; ^ ai 'so, where an attorney had been consulted by a friend, because! he was an attorney, yet refused to act as such, and was, therefore,! applied to only as a friend, ^ or where the matter communicated was not in its nature private, and could in no sense be I termed the subject of a confidential disclosure,^ In all such cas the matters to be disclosed cannot be said to be matters which the I professional adviser has learnt by communication with his client, or I on his client's behalf, or as matters which were committed to hii in his capacity of attorney, or which in that capacity alone he I came to know.* And so, where an attorney is, as it were, a party to the original transaction, as if he be the attesting witness to a deed, he may be called upon to disclose facts relating to its execu- tion, or as to an erasure made by himself in a deed or will f if, also, he was present when his client was sworn to an answer in Chancery, he may be called upon to disclose the fact f and if he has been I employed as the agent of a party, and does not gain his knowledge of the facts, as to which the discovery is required, merely in m\ relation of attorney to his client, the rule will not apply : for, in such cases, there was no professional confidence, and he stands in | the same situation as any other person.7 The privilege will also be excluded, with regard to communica- 1 tions to members of other professions than the Law ; it has, there- fore, been held not to extend to clergymen f nor to physicians or I medical advisers f nor will it extend to mere agents or stewards;^"] it, however, applies to scriveners ;^^ and also to counseL^^ It has, however, been held that it does not extend to communications made | to persons acting as conveyancers, who are neither counsel nor sol citors ; thus, in the South Sea Company v. Doltiffe, referred to in 1 ft 1 ITttowtv. ito«toii,4T. R.753. , .,. r M, , ,s 2 Ibid • 3 Rex V. Waikimon. 2 Stra. 1122. 4 Oreenough v. Gaskell, 1 M. & K. 08, 104. 6 Sandford v. Reminghm, 2 Ves. J. 189 ; Taylor on Erid. ss. 857. 858 ; 1 Phil, on Evi. 128. 6 Doe V. Andrewt, 2 Cowp. 84« ; Taylor on Evid. s. 867. 7 Morgan v. Shaw, 4 Mad. 54, 56, 57 ; see alao Detborough v. Rawliru, 3 M. & C. 615 : 2 Jur. 125. 8 Taylor on Evid. s. 888. „ , ,, 9 Dwheu of Kingtton't case, 11 Hanj. St. Tr. 243 ; 8.C. 20 How. St. Tr. 672 ; Oreeimtgh ▼. 6 7» »- -v'»*!»]. 12Atk. 626. J ihid. : and see Turyuand v. Knight, 2 M. & W. 100, as to certificated conveyancer*. SFottntoin v. Young, 6 Esp. 113 ; but see Cai/ey v. Richards, 19 Beav. 401, 404. J Du Barre v Livette, Peake, N. P. C 77, 78, explained 4 T. R. 7.')6 5 Parkins v Ilawk»haw, 2 Start. N. P. 239 ; Reid v. LangMn, 1 M'N. «. G. 627. 638 : 14 Jur. 467, 470 ; Rtmsell v. Jacksm, 9 Hare, 387 : 15 Jur. 1117 ; Ooodall y. Littl; 1 Sim. N. S. 155 : 15 Jur. 308 ; Uower v. Oumm, 2 J * H. (i02. 5 S"'"'"^' ^<'»'«''. 2 Car & P. 195 ; Foote v. JIayne, 1 Car. & P. 645 : 1 Ry. & M. 165 ' »lpm on Disc. 82 ; see also Parkhurst v. Lotcten, 1 Mer 391, 402 ; Russell r. Jackson, u6i sup.; Ortdey v. Mmisley, 2 K. & J. 288 ; Tugwell v. Hooper, 10 Beav. 348, 350 « ▼; Stewart, 1 Phil. 471, 476: 9 Jur. 121 ; Lafone v. Falkland Island Company, 4 K. & J. 34 ; WaUham v. Stainton, 2 H. & M. 1 ; see also Kerr v. Gillespie, 7 Beav. 672. " '-owMwe T. Campbell, 4 Drew. 485 ; see also Bwnburyv. Bunbury, 2 Beav. 178, 176, where the question was as to an opinion by a Dutch counsel. CAant ' . Brown, 7 Hare. 79. 1 iMfi Cholmondeley y. Lord Clinton, 19 Ves. 268 a reane y. Pearte, 1 De O. & S. 12, 28 : 11 Jur. 62. * ^^v 412 DIFFERENT GROUNDS OF DEMURRER. V.C, observed ; " If I could upon authority determine the abstracl poiut which has been argued, viz., whether the privilege of tha client is as extensive as that of the solicitor, I should be crlad tj remove the anomaly by which it seems, that where the solicitor interrogated, and objects, because it would be calling on him tol jdivulge matters which passed in the relation of solicitor and client] then there is a privilege without more : whether such matters n to an actual or contem])lated litigation oi not ; and yet, if the samej questions are put to the client, then when his privilege is in questioDj he is to be told that he has a less privilege than he would have through his solicitor, if the latter were (juestioned. So great ani anomaly, so inconsistent and absurd a rule, I should be glad to takel on myself to say is not the rule of this Court, and that there is nol such distinction. When Reid v. Langlois^ was cited to me, it did) appear, at first sight, that it established the broad proposition con- tended for ; and I should certainly have followed that case if it didl so ; but on further examination, though that case does not establislij the contrary, yet I think it was not the intention of Lord Cottenhamj to lay down the general proposition : that point he did not decile; nor do the cases of Pearse v. Pearse,'' and Follett v. Jefferyes} so lay it down, as to enable me to say I can follow them. If that point I is to be decided, it must be by a higher authority than mine."^ The more recent cases upon the privilege, as it ati'ects the client,! are very numerous ; and although it is difficult if not impossible, to extract any clear rules from them as to the extent of the privilege, it may be said that their tendency is to make the rules the same, whether the discovery is sought from the solicitor or client ;5 and in | matters of title, this seems to have been decided.*^ ; There does not seem to be any difference, in principle, between! I 1 M'N. & G, 627, 638 : 14 Jur. 467, 469. ■''' '• ,■ V ". • ' - . 3 I De G. & S. la : ii Jur. 52. '/i-' •■ ..."'' • 3 I Sim. N. S. I : 15 Jur. 118. >■ 4 Thompson v. Falk, 1 Drew. 21, 25. 5 The following are some of the more recent decisions : Nias y. Northern and Eastern Raihmj u* iauy, 3 M. & C. 355i 357 ■ 2 Jur. 295 ; Bunbury v. Biinbnry, 2 Beav. 173; Flight v. Rm«»,i I Beav. 22, 33 : 8 Jur. 888 ; Maden v. Veevers, 7 Beav. 489 .- Woods v. Woods, 4 Hare, 83 ; AfW V. Trye, 9 Beav. 316 ; Pearse v. Pearse, uhi sup. ; 'Pugiuell v. Hooper, 10 Beav. 34B ; PinrvdM V. Hammond, 11 Beav. 59; Beadon v. King; 17 Sim. 34; Reid v. Langlois, and /«'""' Jeffereys, ubi sup. ; Warde v. Warde, 3 M'N. & G. 365 : 15 Jur. 759 ; Balgny v. BroamnU 1 Sim. N\ S. HI : 14 Jur. 1105 ; Hawkins v. Gatliercole, i Sim. N. S. 150 : 15 Jur. t86 ; CrMM^, Little, I Sim. N. S. 15s : 15 Jur. 309 ; Tlwmpson v. Falk, ubi sup. ; Bluck v. Gals^vorihy, 1 Oin 4S3 ; Fords. Tenant, 32 Beav. 162. 6 Manser y. Dix, iK. ..ciple upon which these cases proceed is : that the right of a ])laintiff in equity to the benefit of a defendant's oath, is limited I to a disci, '^^ry mch material facts as relate to the plaintiff's case, and does not extcLd to a discovery of the manner in which, or of the j evidence by means of which, the defendant's case is to be establish- ed.* This principle is recognized by Lord Brougham, in Bolton v.\ The Corporation of Liverpool ;^ and by Lord Abinger, in fieWwoodj V. Wetherell.^ It is true that in those cases the question did not I come before the Court upon demurrer, but the rule is the same inj whatever way the question may be raised : on demurrer, on excep-j tions to the defendant's answer, or on application to produce docu- ments in the defendant's possession.^ 1 lid. Red. 190; Strotid v. Deacon, 1 Yes S. 37; Budenv. Dore, 2 Yes. S. 446 ; Sampson v. Smt-l tenham, 5 Mad. 16 ; Tyler y. Drayton, 2 S. & S. 309 ; see also Stainton v. CAodwwJ-, SM'N.il O. 675, 682 : 15 Jur. 1139. 2 Ld. Red. 190 ; and notes and cases there cited. ;. ', . iz-'j.*^,/; /v. ,' ff 8 Ivy V. Kekevnek, 2 Yes. J. 679. 4 Wigram on Disc. 261 ; Ingilhy v Shafto, 33 Beav. 31 : 9 Jur. N. S. 1141. 6 1 M. & K. 88, 91 ; see also Attomey-Oeneral v. Corporation of London, 2 M'N. & 0. 247, 256. 6 1 Y. & C. Ex. 211, 215. 7 For instances in which this rule has been acted upon, where the objection has been taken byd*! murrer: see Strotid v. Deacon, 1 Yes. S. 37 : Ivy v. Kekewiek, 2 Yes. J. 679: Olmy- "QK^t Mad. 193: Cvmpton v. Earl Gray, 1 Y. & J. 154 ; Wilson v. Forster, Younge, 280: IwXA v. mi a)td Chapter of Canterbury, 3 Sim. 49, 61. On Applicatioic to Producb : Princess of Wm\t Earl of Uverpool, 1 Swanst. 114, 121 : Mieklethwait v. Jf core, 3 Mer. 292: BUghy. ottmA Prl. 205 : TyUr v. Drayton, 2 S. & S. 809 : Sampson v. Swettenham, 5 Mad 16 : 2 M 4 K. -HI n. (b) : Firkins v. Low, 13 Pri. 193 : WiUon v. Foster, M'Lel. & Y. 274 ; Totnlinson v. i,Vi«'''l Sim. 489 : Shaftesbury v. Arrowmnith, 4 Yes 66, 70 : Aston v. Lord Exeter, 6 Yes. 2»8: »"^l ley V. Watson, cited ib. 289 : Bolton v. The Corporation of Liverpool, 1 M. & K. 88: ""^Vl Tempest, 9 Beav. 407 ; Attomey-Oemral v. Thompson, 8 Hare, 106 : Manby v Bemkeimii 8 De G. M. & G 47*; Rumbold v. Forteith, No. 2, 8 K. *; J. 748 : Hunt v Elvm, 27 B«»v „K>I Jur. N. S 646. Ou Exceptions to Answbrs : Buden v. Dore, 2 Yes. S. 446: StaintoniJ^^t toiek, 8 M'N. & O. 676 : 16 Jur. 1189 : Ingitty v. Shafto, vM mp.; BetheU v. Catm, 1 ft «*| 806 This rule wil Icoveiy from tht if admitted, wo defence made, \ I from the defend [defendant's case the defendant's him to the assi Istances of equiti |of this kind can If a plaintiff Iments for the ] Isuch discovery a Isame documents la defendant, bou Iproperly mixes 1 I he must discove: VI. The circi jinterest in a do( lis concerned, is Iplaintiffofhisr |of the third pai jonly for othei-s. jpelled to show t Ibefore the Court iproper parties, \ pection, where tl VII. Commu lofficial correspa Icould not be EQ 1 Hare on Disc. 201. ^^wnlU.NichoUm H««,607,618: 1 C.63i,660:£a« -1 Prtpaan v. Pairti Haw on Disc. 246 ^ "liberty. Rogers, V. DEMUBREBS. 415 This rule will not extend to defeat the plaintiff of his right to dis- Icovery from the defendant, where he makes a case in his bill, which, I if admitted, would disprove the truth of, or otherwise invalidate the I defence made, to the biU ; in such cases, he is entitled to discovery Ifrom the defendant, of all which may enable him to impeach the Idefendant's case : for the plaintift' does not rest on a mere negative of Ithe defendant's case, but insists upon some positive ground entitling Ihim to the assistance of the Court, such as fraud, or other circum- Istances of equitable cognizance, to a discovery of which, no objection loftbis kind can be raised.^ " If a plaintiff is entitled to a discovery of deeds or other docu- Iments for the purpose of establishing his own case, his right to Isuch discovery will not be affected by the circumstance that the Isame documents are evidence of the defendant's case also ;^ and if la defendant, bound to keep distinct accounts for another party, im- Iproperly mixes them with his own, so that they cannot be separated, |he must discover the whole.' VI. The circumstance that a party not before the Court has an Imterest in a document which a defendant, so far as his own interest lis concerned, is bound to produce, will, in some cases, deprive the jplaintiff of his right to call for its production, at least in the absence ■of the third party, as in the instance of a person being a trustee lonly for others. Upon this principle, a mortgagee cannot be com- jpelled to show the title of his mortgagor, unless such mortgagor is jbefore the Court :* in such cases, however, a demurrer, for want of jproper parties, would be the proper form in which to raise the ob- Tjection, where the bill is for relief as well as for a discovery.^ VII. Communications which come within a certain class of lofficial correspondence, are privileged, upon the ground, that they |could not be made the subject of discovery in a court of Justice 1 Hare on Disc. 201. ' ' ' * *m*" l-J^l^oifon, 1 M. & K. 680 : Wlgram on Disc. 244 : Smith v. The Duke of Beaufmi, 1 r^', ^k^^i= 1 P**"- 20», 218 : 7 Jur. 1095 : Cmnbe v. The Corpomtion of Londmi, 1 Y. & C. C. orwmon V Fatrfie, 3 Mer. 43: £arl of Salisbury v. CecU, 1 Cox, 277: Wigram on Disc. 244: aaie on Uisc. 246. MBjfcert y-it^ers, 2 Mer. 489: see however Balls v. Margrave, 3 Beav. 448, 4 Beav. 119: Few v. 6 S«rS' ■ *^^ • ®*^'' ^- ^-^V' 6 De G. & S. 653 : Uercy v. Ferrers, 4 Beav. 97. ■li "i ■ 'fl'- 416 DIFFERENT GROUNDS OF DEMURHEU. -A J, 'is without injury to the public interest. In Smith v. The East India Company,^ Lord Lyndhurst had to consider whether correspondence, between the Court of Directors of the East India Company and the I Board of Control, came within the limits of this privilege ; and he decided that it could not be subject to be communicated, without | infringing the policy of the Act of Parliament,^ and without injury j to the public interests. The above are the principal grounds upon which a defendant may demur to the discovery sought by a bill ; although the plaintiff may be entitled to the relief prayed, in case he could establish his I right to it by other means than discovery from the defendant, on I those points as to which the defendant is entitled to defend himselfl from making discovery. In all other cases, a plaintiff", if entitled toj relief, is entitled to call upon the defendant to make a full discoveryl of all matters upon which his title to relief is founded. It does not, however, very often happen that these grounds affect the whole ofl the discovery sought ; in such cases, the defendant must, if] interrogated, answer all those parts of the bill, the answer to which will not expose him, or have a tendency to expose him, to the! inconveniences before enumerated. A demurrer, under such cir-| cumstances, should precisely distinguish each part of the bill demurred to, and if it does not do so it will be overruled.^ ■la If a defendant objects to a particular part of the discovery, anij the grounds upon which he may demur appear clearly on the fac of the bill, and the defendant does not demur to the discovery, bulj answering to the rest of the bill, declines answering to so much, iU Court will not compel him to make the discovery ; but in gener unless it clearly appears by the bill that the plaintiff is not entitled to the discovery he requires, or that the defendant ought not to compelled to make it, a demun'er to the discovery will not hol^ and the defendant, unless he can protect himself by plea, mu answer.^ 1 1 Phil. 50, 56 : 6 Jur. 1 : see also Wadeer v. East India Company, 8 De G. M. & G. 182: 29 ) 300. 1 3 & 4 Will. IV. c. 85. 3 Chetwynd v. Lindon, 2 Ves. S. 450: Devonsher v. Newenham, 2 Sell. & Lei. 193: ifoftwwo"! Thompson, 2 V. & B. 118 : Weatherhead v. Blackburn, ib. 121, 124. 4 Ld. Red. 200. y DEMURRERS. m I Any irrgularity in the frame of a bill may be taken advanta&fe of [by demurrer.^ Thus, if a bill is brought, contrary to the usual I course of the Court, a demurrer will hold ;' as where, after a decree directing incumbrances to be paid according to priority, a creditor obtained an assignment of an old mortgage, and filed a bill to have I the advantage it would give him, by way of priority, over the ilemands of some of the defendants, a demurrer was allowed :^ it being, I in effect, a bill to vary a decree, and yet neither a bill of review, nor a kill in the nature of a bill of review, which are the only kinds of [bills which can be brought to affect or alter a decree, unless the decree has been obtained by fraud.* Where, however, a supple- mental bill was filed, in a case in which, according to the former [practice of the Court, a supplemental bill was the proper course, but by more recent practice the same object had been accomplished by Ipetition : Sir John Leach, V. C, held, that the supplemental bill was liiot rendered irregular, although the circumstances would be taken linto consideration upon the question of costs.^ '■.iii. If the plaintiff neglects to take advantage of ihe irregularity by [demurrer, he will be held to have waived the objection,* unless he as claimed the benefit of it by answer.'^ An amended bill is liable to have the same objections taken to it, Iby demurrer, as an original bill ; and even where a demurrer to the joriginal bill has been overruled, a demurrer to an amended bill lb been allowed f and the circumstances of the amendment being the most trifling extent will not, it seems, make any difference ', Qd, even where the bill was amended by the addition of a party |»iily, the demurrer was held to be regular.^ Where the defence st put in is a plea, and the bill is afterwads amended, the amended m may still be demurred tc^" A defendant, however, cannot, in keneral, after he has answered the original bill, put in a general |lemurrer to the amended bill : because the answer to the original ' Ho'^' ^ • Bainbrigge v. Baddeley, 9 Beav. 588 ; Banger v. Great Western Railtoay Company, 1 li n ?• ^^' ^ ''»'■• ®35 ; Hender$on v. Cook, 4 Drew. 306. ; U. Red. 20fl, ' I Jf^^ "■ **''**«<»d. 3 Atk. 809. » W^ Red. 206 : Lady Granville v. Ranmden, Bunb. 56. RobiMon] Sflowedv. Jr«JiowM,lSlin!6. . i«**"'w>P of York V. StapUton, 2 Atk. 186 : 7 myan V. kitchen, 1 M. ft C. 438, 442. I S"*™-^' "■ V^ardour, 2 Bro. C. C. 66 : 2 Dick. 672. Ranger v. Great Wntem Railway Company, vbi lup. lis t lit n.j::::?"''** ^c^nlMm, 4 Slm. 6T3. yimertmv. Lord Londonderry, t Sim. 226. TTT 4,18 DIFFERENT GROUNDS OF DEMURRER. bill, being still on the record, will, in fact, overrule the demurrer.' The defendant must, in such case, confine his demurrer to the matters introduced by amendment. But where a substantially new case is made by th'3 amended bill, a general demurrer will lie.^ A defendant may demur to part only to the relief or discovery: in which case, it is called a partial demurrer. Under the former practice, a defendant demurring to part of the bill, was bound to answer the rest ; an 1 when interrogatories have been served, a defendant must still answer such of the interrogatories as are not covered by the demurrer ; but where no interrogatories have been served, he may file the partial demurrer without coupling any answer with it.* A demurrer cannot be good in part and bad in pai-t ;* so that, if a demurrer is general to the whole bill, and there is any part, either as to the relief or the discovery, to which the defendant ought to put in an answer, the demurier, being entire, must be overruled.^ Instances are, certainly, mentioned by Lord Redesdale," in which demurrers have been allowed in part ; but whatever may have for- 1 merly been done, the practice appears to be now more strict : though sometimes the Court has, upon overruling a demurrer, given the j defendant leave to put in a less extended demurrer, or to amend and j narrow the demurrer already filed.' In the latter case, however, the application to amend ought to be made before the judgment j upon the demurrer, as it stands, has been pronounced : though, even where that has been omitted, the Court has, after the demurrer has j been overruled, upon a proper case being shown, given the defend- ant leave, upon motion, to put in a less extended demurrer anuj answer.^ • 1 Atkimon v. Uanioay, 1 Cox. 380 : see Elliee v. Qooihim, 3 M. & C. 668, 658 : 2 Jur. 249: ^kt\i\ V. Phiilipn, 2 Y. & C. Ex. r>SO : and see ante. ,, „„■ . J 2 Cresy v. Sevan, 13 Sim. 354 : see also Powell v. Cockerell, 4 Hare, 5«5, 669 : Wyll^ v. mux oj Hare, 505, 510: Attormi/-Oeneml v. Cooper, 8 Hare. 166: ante. 3 Burton v. Robertmn, IJ. & H. 38 : 6 Jur. N. S. 1014. r r j il 4 In t"i8 respect tUero ii a diif reuce b tween a plea and a demurrer : Mayor, &"€., of Loimou i Levy, « Ve-. 41)3 ; Baker \ . Mellish, 11 Ves. 70. , .,v iso 6 PerLordHardwckein y)/i?/c<»(/"v Hervey, I Ves S 248; Earl of Suffolk'^. Greene, lAU.w, Toddy .'Get, 17 Ves 273. 277 ; Attorney-Generals. Brown, 1 Swinst. 3"4. „, 6 Ld. Red. 214 ; Rolt v. Lord Somennlle, 2 Eq. Cb. Ab. 769 pi. 8 ; Radcliffe v. Fursman, i wo. r-l C. ed. Toml. 514. , „ . „,l 7 Baker v. Mellish, II V«b. 68 ; Qlegg T. Leah, 4 Mad. 193, 207 : Thorpe v. Macaulny, 5 MM. i*"-! 8 Baker v. MtlH$h, 11 Vea. 7a, 76. ■ After the pro I «nd not to the a parts of the bill \H is laid dov "that where a d ;U Red. 214 ;Aro,.,A ■W. K«d. 2l4;A-o,. Mayor, Jcc, of London v. Levy, vbi t«* JCss^' 3 1 Ante. 2 Rayner v. Julian, 2 Dick. 677 : 6 Mad. 144, n. (6) ; BuHt^zr v. Barber, 4 Drew. 666 : 6 Jur. N. S. U97. i AtOe. A demurrer for want of equity need nci refer to the aUegatioiiH of the bill : MitUUebrook y. Bromley, 9 Jur. N. S. 614, 615 : 11 W. B. 712, V. C. K. iAtiU. /nntanv. ITeanno.SDeO. &8. 729. i AtOt. 422 FORM OF DEMURRERS. -m ;f the discovery only, he cannot do ho under a general demurrer for want of equity : he must make it the subject of special demuner;' and so, a general demurrer does not include a demurrer on the gi-ound that the bill (being a bill of review) does not state on the face of it that it is by leave of the Court ; but that ground may ^ taken ore tenuK^ • Care must be taken, in framing a demurrer, that it is made to rely only upon the facts stated in the bill ; otherwise it will hi, what is termed, a speaking denmrrer, and will be overruled.^ Thus, where a bill was filed to redeem a mortgage, alleging that the plaiutifi's ancestor had died in 1770, and that, soon after, the defendant took. possession, &c. ; and the defendant demurred, and for cause of de- murrer showed, that it appeared upon the face of the bill, that from the year 1770, which is upwards of twenty years before the filing of the bill, the defendant has been in possession, &c., Lord Rosslyn overruled the demurrer, because the language of the bill did not show that the defendant took possession in the year 17" . but, that he did so, could only be collected from the averment in »,. demur- rer.* But a denmrrer, for that it appeared on the bill that the agreement, therein alleged to have been entered into, is not in Act- ing, signed by the defendant, is not a speaking demurrer.* It is material to notice that, in order to constitute a speaking demurrer, the fact or averment introducetl must be one which is necessary to support the demurrer, and is not found in the bill : the introduction of immaterial facts, or averments, or of arguments, is improper; but it is mere surplusage, and will not vitiate the demurrer." A defendant is not limitofl to show one cause of demuner only he may assign as many causes of demuner as he pleases, either to the whole bill, or to each part of the bill demurred to, but they must be stated as distinct and separate causes of demurrer;^ and if any one of the causes of demurrer assigned hold good, the demurrer will be allowed.^ Where, however, two or more eauses of demurrer 1 Wittingham v. Burgoffiie, S Anst. 900, 904. 2 Heiidemon v. Cook, 4 Drew. 306. 3 Browtimoord v. Edward», 2 Yes. S. 245 ; Htnderson v. Cook, 4 Drew. 306, 316. 4 EdHell V. Buchannan, 4 Bro. C. C. 254 : 2 Yes. J. 83. 5 Wood V. Midgley, ;, Oe G. M. & (i. 41 ; see also Jones v. CharUmont, Vl Jur. 632, V. C. E. 6 Cawthorn v Chalie, 2 S. & S., 127 ; Damen y WUiiaim, 1 Sim. 5, 8. 7 Barber v Barber, 4 Drew. 6«« ; 5 Jur. N. 8. 1197. 8 Harriton v. Hogg, 2 Vc8. J. 323 ; Joms v. Frost, 3 Mad. 1, 9 : Jat. 4«« : Cooper v. Earl Pom,i De O. & S. «88. TJ^^ff^mi^-, DEMURRERS. 423 ) are shown to the whole bill, the Cooi-t will treat it as one demurrer; and it' one of the causes be considered sufficient, the order will be drawn up, as upon a complete allowance of the demurrer.' A defendant may also, at the hearing of his demuiTer, orally assign another cause of demuirer, different or in addition to those assigned upon the record: which, if valid, will support the demurrer, although the causes of demurrer stated in the demurrer itself are held to be invalid. This oral statement of a cause of demurrer, is called demurring " ore tenus." A defendant cannot demur ore tenus, unless there is a demurrer on the record ; and upon this gi'ound, where a defendant had pleaded, and, upon the plea being overruled, otfered to demur ore tenus, for want of parties, he was not pennitted to do so ; ^ neither can a defendant demur ore tenus for the same cause that !;as been expressed in the demurrer on record, and over- raled ; ^ ' can he, after a demurrer to the whole bill, demur ore tenus as to part.* It seems, however, that after a demurrer to part of the bill has been overruled, the defendant may demur ore tenus to the same part.-*^ It is to be noticed that, although a defendant may, either upon the record, or ore tenus, assign as many causes of demurrer as he pleases, such causes of demurrer must be co-extensive with the demurrer upon the record; therefore, causes of demurrer, which apply to part of the bill only, cannot be joined with causes of demurrer which go to the whole bill :^ for, as we have seen before a demurrer cannot be good in part and bad in part ; which would be the case if a demurrer, professing to go to the whole bill, could be supported by the allegation of a ground of demurrer which applies, to part only. I'^fttS^aa,^ .If I The consequence of demurring ore tenus, as regards costs, will be discussed in a future section.' 1 Welle»Uyv. Welletley, 4 M. & C. 554, 658: 4 Jur. 2; see also, WattH v. Lord Eglinton, I C. P Coop. t. Cott 26, 27. 2 Durdant v. Redman, 1 Vem. 78 ; Hook v. Dorman, 1 15. Ic S. 227, 231. 3 Bmman v. Lyaon, 1 Anst. 1 ; but see Pratt v. Keith, 10 Jur. N. 3. 305, V. C. K. , where a demurrer on the recoro, that there were not proper parties, haTing been overruled, a demurrer ore tenwi, deacribing the necessary parties, was allowed. 1 Shepherd v. Lloyd, 2 Y. iSi J. 490. 5 Croiw* V. Hickin, 1 Keen, 386, 389; see contra, Shepherd v. Lbrifd, ttii mip. ; and see Scaiie v. Hartumek, 7 Grant, 161. Pittt Y. Short, 17 Ves. 218, 216 ; Metcalfe v. Bromi, 5 Pri. 560 ; Rvmp v. Greenhill, 20 Beav. 512 : Uur. N. S. 128 ; Heivdernnn y. Cook, 4 Drew. 806 ; Gilbert v. Leteig, 1 De O. F. & S. 38 : 9 Jur. N. 8. 187 ; Tho^npHon v. University of L(mdon, 10 Jur. N. S. 669, 671 : 88 L. J. Oh. 626. V. C. K. ' oecpoBt. . , ' 424 FORM OF DEMURRERS. m i-i * :« 'W The demurrer, having assigned the cause or causes of demumr, then proceeds to demand judgment of the Court, whether thei defendant ought to be compelled to put in any further or other answer to the bill, or to such part thereof as is specified as bein" the subject of demurrer ; and concludes with a prayer, that the defendant may be dismissed with his reasonable costs in that behalf | sustained. If a demurrer is to part of the bill only, the answer (if any) to the remainder usually follows the statement of the causes of demurrer, and the submission to the judgment of the Court of the plaintiff's I right to call upon the defendant to make further or other answer. ' ' It was formerly an invariable rule, that an answer to any part of a bill demurred to would overrule the demurrer,^ even though the part answered was immaterial.^ And this rule was carried so far, that where the demurrer did not in form extend to the part answered, yet, if the principle upon which the demurrer depended | was such that it ought to have extended to the whole bill, then the answer to such part overruled the demurrer.* This is still the rule of the Court, but it has been modified to this extent : that the Court will not overrule a demurrer, merely on the ground that, bv some slip or mistake, a small or immaterial part of the bill is covered by the answer or plea, as well as the demuiTer.^ For information as to the nature of the answer (if any) to be put in to those parts of the bill to which the defendant does not demur, the reader is refeiTed to the Chapter on Answers.*' If the plaiutitl conceives such answer to be insufticient, he may except to it, but [ he must not do so before the demurrer has been argued : ^ othenvise' he will admit the demurrer to be good.' It is said, however, that if the defendant demurs to the relief only, and answers the rest of | the bill, the plaintift' may take exceptions to the answer before the demurrer is argued.* 1 See antt. ,„ 2 Tidd V. Clare, 2 Dick. 712 ; Uetter v. Wetton, 1 Vera. 463 ; RtAerts v. Clayton, 3 Anst. 716. 3 Ruspini v. Vickery, uited Ld. Red. 211 ; Savage v. Snalebroke, 1 Vern 00. ,., 4 Dawion v. Sadler, 1 8. & S. 642 ; Sherwood v. Clark, 9 Pri. 259 ; Heater v. Wetton, 1 Vern. *6i. 6 Ord. XIV. 9 ; Loumds v. Oamett and Moseley Gold Mining Company, 2 J. & H. 282 ; *<"«♦';', Feeney, i*. 313; Gilbert v. Leuns, 1 DeO. J. & S. 38 : 9 Jur. N. 8. 187 : see also Jon« v. W" qf Strafford. 3 P. Wnu. 81. We have no order similAr to this. 6 Pout. 7 London Aiituranoe v. East India Company, 3 P. Wins. 826. , ■ , 8 Ld. Bed. 317 ; Boyd v. Mills, 13 Ves. 86, 8B. If necessary the plaintiff may obtain an exUnwon w the time to file exceptions. » Ld. Rod. 317: 3 P. Wms. 327. DEMUBBEBS. 425 A demurrer is pu+ hi without oath, as it asserts no fact, and relies merely upon matter apparent upon the face of the bill ;^ and it need uot be signed by the defendant. A mere clerical error in a demurrer may be amended on an a" parte order, or at the hearing.^ Section IV. — Filing, Setting Down, and Hearing Demurrers. After the draft of the demun-er has been settled, it is copied on paper of the same description and size as that on which bills are printed ; the denmiTer is then filed at the Record and Writ Clerks' Office, or in the Office of the Deputy Registrar with whom the bill is filed. Orders 40, 41,iand 46, are to be observed in the endorse- ment and notice of filing. A separate demurrer, by a mar ied woman, must have an order k> warrant it ; such a demurrer oi ght not, therefore, to be filed till an order to that effect has been procured.^ A demuri'er cannot be tiled on behalf of an infant, or a person of unsound mind not so found by inquisition, until a guardian ad litem has been appointed; and it is the same in the case of a lunatic, when his committee has an adverse interest. The order appointing the guardian must be produced when the demurrer is presented for filing.* Our order 120, as explained by order 550, provides, that " A defendant may demur to a bill of complaint at any time within one lunar month after service upon him of an office copy of the bill." In a cp,se where a motion to take the bill pro confesso was pending, and a demurrer had been filed aftei* notice had been given, it was Held, in the absence of authority to the contrary, that if thtj, demurrer be filed before judgment is pronounced in such case on the pro con. motion, it will be in time, and take precedence of an order to take the bill pro con.^ A demurrer, to which is annexed an answer to any material part 1 U. Red. 208. •• . 2 0«5orn v Julluni, 3 Drew. 669, 663. i Barron t. Grillard, 3 V. & B. 165 ; Braithwaite's Pr. 68 ; except, it is presumed. In those cases whore a marrlud woman is entitled to defend as a /erne tole : »ee ante. IBraithwait 's Pr. 58. • i> il 3 ^liite V. BMkermUe, 8 Cham. R. 40. t 426 FILING, SETTING DOWN AND HEARING DEMURRERS. of the bill, is considered an answer and demurrer, and may be filed within the time limited for pleading, answering, or demurriDfr, not demurring alone.^ Further time to answer will not carry with it a right to demur after the usual time. Where a plaintiff's solicitor had given further time to answer, and instead of answering the defendant's solicitor filed a demurrer, it was ordered to be taken off the files.^ The giving time, to answer does not authorize the defendant to demur after the time for answering has expired.^ It is right here to advert to the distinction in practice between taking a demurrer and answer off the file, and simply overruling the demurrer, thereby leaving the answer on the frle. The former 1 course appears to be the one adopted, in all cases where there has been an irregularity in the formal parts or the filing of the demurrer, whether it be accompanied by an answer or not.* The latter course is adopted, wherever the demurrer has been properly filed, but th^ Court is of opinion that it is insufficient, or that it has been over- ruled by the answer. The omission of any formal part in a demurrer (such as the heading thereof), is an irregularity which entitles the plaintiff to have the demurrer taken off the files, unless an amendment is per- mitted.^ Where a demurrer has been taken oft' the file for irregularity, it ceases to be a record of the Court, and the defendant may, there- fore, put in a plea, or another demarrer (if his time for demurring has not expired), as if no demurrer had been filed ; but the demuner is not taken off the file by the mere pronouncing of the order ; it must actually be withdrawn from the file.^ To effect this, the order, when drawn up, should be carried to the Record and Writ Clerk : who will withdraw the demurrer, annexing the order to it. ' 1 Osbom T. i/uUion, 3 Drew. 662; see also Ld. Red. 208, 210; Stephenton t. GardMWr, 2 P. Wm«. 286; Tomkin v. Lethbridge, tt Yes. 178 ; Tayior v. Milner, 10 Ves 444, 446 ; Baker v. MelM, U Ves. 73 ; White v. Hoioard, 2 De O. & S. 223 ; Head v. Barton, 3 K. My. Reynolds, ubimp. 9 nan^ngge v. Mots, 8 K. & J. 02 : 3 Jur. N. S. 107; Martin v. Reid, 6, U. C. L. J. 143. i m. 428 FILING, SETTING DOWN, AND HEARING DEMURRERS. In order to entitle a plaintiff' to be relieved against the conse- quences of not setting down the demurrer, or obtaining an order to I amend, within the periods fixed by the General Orders, he must| make out a clear case of accident, mistake, or surprise.^ The times of vacation are not reckoned in the computation ofl time for setting down demuri'ers.^ As, in the event of ^ demurrer not being set down for argument within the limited period, the defendant derives the same benefit I as by its allowance, the duty is cast upon the plaintiff, if he is I desirous that it should be submitted to the judgment of the CourtJ of having it set down. If the defendant is desirous of withdrawing his demurrer, he may do so, even after it has been set down, on payment of costs.^ » In general, the Court will not advance a demurrer;* in cases, however, of bills for injunction, as an injunction will not usually be I granted pending a demurrer, the Court will, upon application, where! the matter is pressing, order the demurrer to be argued imme- diately.^ When a demurrer is called on for hearing, and the defendantj omits to appear, the demurrer will be struck out of the paper, unless! the plaintiff, if he has set down the demurrer, can produce an affi- davit of service upon the defendant or his solicitor of the order tol set it down ; or, if the defendant set down the demurrer, unless the! plaintiff can produce an affidavit of service upon himself of tliel order for setting down the demurrer. If the plaintiff can produce! such an affidavit, it is conceived that the demurrer would be over-l ruled, as in the case of a plea.^ It has been held, however, that such a case the demurrer is not necessarily overruled, but plaintiff must be heard in support of the bill.^ When the defendantj 1 Knight v. Marjoribanks, 14 Sim. 198: decided, however, on the 34th Ord. of Aug., 18«: Swi Ord. 884: 3Be»v. xxa.; Matthews v. Chushester, 11 Jur. 49. L. C. : decided on the 4«th Ori « May, 1846: San . Ord. 1000: 7 Beav xU. : 1 PhU Ixxxvl., which was similar; oTemUingS' 6 Hare, 207. 2 Ord. 408. 3 Domten v. East India Company, 6 Ves. 686. 6 CouHns T. Smttft, 13 Ves. 164. 167 : Jones v. Taylor, 2 Mad. 181 ; Const v. Harm, T. & B^ Where Justice requires it, an injunction will be granted pending a demurrer : Warale v. tt<»»™ 9 Sim. 412. « Mazarredoj. Mattland, 2 Mad. 38. For form of order overruling demurrer, on non-»pp of defendant, see Seton, 1268, No. 18. 7 Penfold r. Mamabottom, 1 Swanst 662. v.\ DEMtTRRE^S. 429 appears, anrcw. 6i)6 ; and see Wattn v. Lord EglitUmi, 1 0. P. Coop. t. Cott. 29, andthera^s therein collected ; and as to leave to amend given after demurrer for want of parties, see lyA' V. RcU, 2 M. & C. 89, 104, 110, and the cases there cited : 1 Jur. 20. „ ., e Dcok» V. Stanhope, 1 Jur. N. S. 413, V. 0. K. ; see, however, Uojlick v. Reynolds, 9 W. E. «1, > Vj. K. ; and A rmiUitead v. Durham, 11 Beav. 428 : 13 Jur. 330. „ .. 7 Schneider v. Lizardi, iM mp. ; Bothomlvy v. Squirets, 1 Jur N. S. 694 V. C. K. ; and sec Httwmj V, Tingey, 12 W. B. 703, V. C. K. 8 Palm V. Chapman, « Grant 338. DEMURRERS. m Where, upon allowing the demurrer, leave is given to the plain- Itiffto amend his bill, he is not thereby prevented from appealing against the order ;i but if the defendant is desirous of appealing from such ' order, he ought to apply to stay the amendment, until the appeal has been disposed of ;2 or, at any rate, he ought not to act upon the order giving the plaintiff leave to amend : as, for instance, by demurring to the amended bill. After a demurrer had been argued, and the Court, instead of I alluwing the demurrer, gave the plaintiff liberty to amend on pay- ment of costs ; an application by the plaintiff for a commission to examine the defendant in Lower Canada, without having amended is bill, was refused with costs.'' It may be observed, that the amendment of a bill, in pursuance I of an order made upon the hearing of a demuiTer, if made before the defendant answers, will not ]>reclude a plaintiff from making I one amendment after answer, upon motion of course.* A demurrer, being frequently on matter of form, is not, in gene- I ral, a bar to a new bill ; but if the Court, on demurrer, has clearly decided upon the merits of the question betM^een the parties, the decision may be pleaded in another suit.^ Where a demuiTer for multifariousness was overruled, and a de- murrer ore tenus for want of parties was allowed, the practice was held to be that the demurrer for multifariousness should be overi'uled with cosis, and the demurrer ore tenus allowed without costs.^ On demurrer ore tenws, held, that every material allegation in a bill must be positive. A demurrer to an allegation qualified by the words "so far as the plaintiff knew," was allowed, but without costs, as the objection was not taken on the record.^ In general, however, where the demurrer, ore tenus, has been allowed, and the Court has given the plaintiff leave to amend his 1 Abetter v. Long, 4 M. & C. 286 ; Davm v. ChatUer, 2 Phil. 645, S47. For form of order on appeal, see iieton, 1162, No. 3. - »eUe»Uy v. WeUegley, 4 M. k C. 664, 66« : 4 Jur. 2. i ihance v. Hendenm, 1 Cham. R. 30. \ iJSu J"",\„^*"'*"**"> 3 '**"• '^^ ■ tini>^rigge v. Raddcley, 12 Beav. 152: 13 Jur. 097. "1. tied m ; and see Limdmtderry (Ladu) v. Jiaker, 3 Giff, 128 : affirmed 7 Jur. N. S. 811, L. JJ. ; 'Ji^ntal steam Company v Brtffgs, 8 Jur. N S. 201, 204 : 10 W. R. 125, L. C. » ^ellyy. Ardell, 11 Grant 679. ' 'omn^ton v. Syon, 2 Cham. R. 22. . , 1 m 432 EFFECT OF ALLOWING DEMURRERS. bill, the course of the Court appears to ho to make him liable to the costs of the demurrer.^ Where a demurrer is put in on two grounds, as to one of which it succeeds, but fails as to the other, no costs will in general be given.^ * Where a demurrer to a bill is allowed, and afterwards the order allowing it is, upon re-argument, reversed, the defendant, if he has received the costs from the plaintiff, will be ordered to refund them, upon application by the plaintiff ;3 and so, if a demurrer has been overruled, and the order is reversed upon re-hearing, the plaintiff, if he has received costs from the defendant, must refund them. One of several defendants who has demurred successfully, is enti- tled, as of right, to have his name struck out of the record ; and may apply to the Court by motion for this purpose.* Section VI, — The Effect of overruling Demurrers. A Demurrer being a mute thing, cannot be ordered to stand for an answer.^ After a demurrer to the whole bill has been ovemiled, a second demurrer to the same extent cannot be allowed, for it would be in effect to re-hear the case on the first demurrer : as, on argument of a demurrer, any cause of demurrer, though not shown in the demurrer as filed, may be alleged at the bar, and if good will sup- port the demurrer.® A demurrer, however, of a less extensive nature, may, i'^ some cases, be put in ; and where the substance of a demurrer was good, but informally pleaded, liberty was given to take it off the file, and to demur again, on payment of costs ;^ and a defendant has been allowed to amend his demurrer, so as to make it less extensive.'' . .^ 1 Newton v. Lord Eijmnnt, 4 Sim. 574, 586. ^ „ __. . 2 Bemon v. liadfield, 6 Beav. 546, 654 ; and see AUan v. Boulden, 6 Beav. 14S, 160; Moigtt « Davey, 18. .3 OatK y. Chapman, 1 Vea. S. 542 ; S. C. 2 Ves. S. 100 : 1 Dick. 148. .„^ 4 Barrg v. Cronkey, 2 J. & H. 1.16: 8 Jur. N. S.IO ; Seton, 1258: U. C. Mining Company v Auor- ney-General, 2 Cham. R. 185. 5 Anmt. 3 Atk. 530. ; . / 6Ld. Red. 217. 7 Devonsher v. Ncwenham, 2 Soh. ^ Lef. 199. , S Gh-gg v. Legh, 4 Mad. 193, 207; Thorpe v. Maeaviey, 6 Mad. 218, 231, ■^ y •WT'trmfi^^^ \^ DEMURRERS. 483 A second demun'er, however, though less extended than the first, cauuot, after the fii'st demurrer has been overruled, be put in with- out leave of the Court ; but the case is different where the first has beeu taken off the file for irregularity. This leave is gentaally fianted, upon hearing the first demurrer ; but it has been permitted upon a subsequent application by motion. Although a defendant cannot, after the Court has overi'uled his demun'er to the whole bill, again avail himself of the same method of defence, yet, as it sometimes happens that a bill which, if all the parts of the ^ase were disclosed, would be open to a demuiTer, is so artfully drawn as to avoid showing upon the face of it any ground for demumng, the defendant may, in such case, make the same defence by plea : stating the facts which are necessary to bring the case truly before the Court. ^ As it is, however, the rule of the I'ouit not to allow two dilatories without leave, or, in other words, as the defendant is only permitted once to delay his answer by plea or demun'er, without leave of the Court, he must, previously to ng his plea, obtain the leave of the Court to do so ; otherwise, Ms plea may be taken off the file.^ From what has been said it results that, after a demurrer to the whole bill has been overruled, the defendant, unless he obtains leave I to put in a demurier of a less extended nature, or a ])lea either to the whole bill or to some part of .it, must, if required, put in a full [answer; and the Court, on overruling the demurrer, will, on the I application of the defendant, fix a time for his so doing ; if no time is fixed, the defendant must put in his answer within the usual itime (if it has not expired), or make a special application for 1 further time.^ Where a demurrer is overruled, and the plaintiff amends his bill, the defendant is not precluded from appealing against the order overmlingthe demurrer;* but after the defendant has served the plaintiff with notice of the appeal, an order of course to amend the bill is irregular, and will be discharged with costs, and the amend- ments expunged.^ 1 Ld. Red. 816. 2 itae/ev V. EeeUg, 1 S. & 8. 511, 512. l.:l •■ \ ^Mi» V. Baker, IS. & 8. 469 : T. & R. 263 : Waterton v. Croft, WMtwn V. Sorth Wales Railway Company, 13 Jur. 69, L. C. , 6 Sim. 431, 438. > i:/t imleyY. Simg, 17 Beav.lTf 434 DISCLAIMERHw After a doniurrer has been oveiTuled, and notice of appeal given the plaintifi' cannot obtain an order of course to dismiss his bill with costs.^ The Court will often, although it overrules the demurrer, reserve to the defendant the riglit of raising the same question at the heariiu/ of the cause ; 2 and where there is a doubtful question on a title, the CWrt will sometimes ovenule the denmrrer, without prejudice to any defence the defendant may make by way of answer.^ Where any demurrer is overruled, tlie defendant is to pay to the plaintiff the taxed costs occasioned thereby : unless the Court other- wise directs. CHAPTER XII. DISCLAIMERS. A DISCLAIMER is, where a defendant denies that he has or claims | any right to the thing in demand by the plaintiff's bill, and dis- claims, that is, renounces all claim thereto.* It has been before stated, that where a person who has no interest in the subject-matter of the suit, and against whom no relief is prayed, is made a party, the proper course for him to adopt, if he wishes to avoid the discovery, is to demur, unless the bill states that he has or claims an interest : in which case, as a demurrer, j which admits the allegations in the bill to be trur will course hold, he should, except in cases of p"' ' discovery, to| which, as will be presently shown, he may obj y answer,) av putting in a full answer, by plea or disclaimer.- Therefore, vfhm, 1 Leioia v. Cooper, 10 Beav. 32 ; S. C. ivrtn. Cooper v. Lewis, 2 PhU. 178, 181. 2 WiUon V. Stanhope, 2 Coll. 629; Jowg v. Skipworth, 9 Beav. 237 ; Iformna v. Stiby, ^rWy.'. Earl of Shrewsbury v. North Staffordshire Jtailway Company, 9 Jur. N. S. 787 : 11 W. R. 7«i I V, C. K. : Baxendaie v. West Midland Railway Company, 8 Jur. N. 8. 1163, L. C. f 3 Brotmrnoord v. Edwards, Z Ves. S. 243, 247 ; Mortimer v. Hartley, 3 DeG. & S. 316 ; *«>« ■ Evans, 18 Jur. 666, L. JJ., Cochrane v. Willis, 10 Jur. N. S. 162, L.JJ.; CcUingvmd v. »'"«" ' 10 Jur. N. S. 1062 : 13 W. R. 63 L.JJ. ; ante. 4 Wyatfs P. R. 175. Ellison, 2 Jur. N. S. 62, V. C. W. ; FosUr t. Datdber, i Dr. & Sm. 172. A defendant < ■that he has no i Ithough he may ■against him : he Jan account cann pimself, by sue! I^hen the bill sc ause, can he, b-5 pvade giving a ) substantiate . pefendant seekii ' disclaimer aloJ f J>e imputed fra] •ereonal decree »iU she must ar fer answer can It is to be obJ ' in any ease,l "nst t^n othel |l&3l8f»4 w DISCLAIMERS. 435 iiwteacl of diHclaimiiig lie Hupported the plaintiff's case, but was held not entitled to any part of the relief given to the plaintiff, he was I left to bear his own costs.' A disclaimer, however, cannot often be put in alone: for although, I if a plaintiff, from a mistake, makes a jiorson a jiarty to a suit who isiano way intereste*! in or liable to be sued touching the matters iDi[Ut!sti(Hi, a simple disclaimer by such person might be good, yet, Lit is j)ossible that the defendant may have had an interest which Ihe may have paited with, the plaintiff has a right to require an lanswer, suttieieut to ascertain whether that is the fact or not ; and if a defendant has had an interest which he has parted with, an [answer may also be necessary to enable the plaintiff to make the IpiDlier peraon a party, instead of the defendant.^ A defendant cannot shelter himself from answering, by alleging Ithat he has no interest in the matter of the suit, in cases where, Ithough he may have no interest, others may have an interest in it lagainst him : he cannot disclaim his liability ; therefore, a pai-ty to [an account cannot, by disclaiming an interest in the account, protect himself, by such disclaimer, from setting out the account.^ Nor, |when the bill seeks to charge the defendant with the costs of the ause, can he, by disclaiming all interest in the subject of the suit, JEvade giving a discovery of those facts by which the plaintiff seeks I substantiate his charge.* So, if fraud is charged against the defendant seeking to disclaim, and interrogatories have been filed, i disclaimer alone is insufficient, and an answer must be given to pe imputed fraud ;^ and it seems that, in such a case, although no monal decree can in general be made against a married woman, till she must answer fully : though it does not seem clear how fai' |ier answer can ultimately be used as evidence against her.® It is to be observed also, that a disclaimer by one defendant can- jiot, in any case, be permitted to ]:>rejudice the plaintiff's right as inst th» othei's ; and, therefore, where a bill was filed against the 1 &k*Aom V. 5uWo«, 1 Mc'N. 4 O. 607. 626. I , ^ >«<>• 818 ; Oxenham t. EgdaUe. iSfh. k Y. 540. I* cS?*'*'*"J- ^*««»ae«, 2 Rum. 458, 462 ; De Beauvoir v. Rhodes, cited 3 M. & C. 643. II mham V. roape, 3 M. & 0. 638, 643 ; 9 Sim. 93, 103. \\V^'}' Dunbar, 1 Anst. 37. ' ^"J ^'"''' 2 Y. & C. Sx 516, 552 ; Pemberton v. MVill, 1 Jur. N. 8. 1046, V. C. W.; and nxMi^oei V. Roynon, 2 Y. & C. C. C, 376 : 7 Jur. 648 ; and ante. jC^mSt^^' ■Jm» i'l i ■%f ■ .'> < '^i 1 436 DISCI. AIMERS. 1 lessees of tithes, under a parol demise, for an account, and the lessor, who was made a defendant thereto, disclaimed, the disclaimer of the lessor was not permitted to prejudice the rights of the plaintiff I against the lessees, and a decree was made against them : although [ the plaintiii* had, upon the disclaimer coming in, himself disiuisseu the bill against the lessoi- with costs.^ Where a defendant claims I any rights against his co-defendants, though not against the plain- tiff, he should reserve such rights l»y his disclaimer : for if his dis- claimer is absolute, the Court will oidy determine the rights audi interests of the other parties ; and will not consider any questinnj which may arise between him and his co-defendants.^ Though a disclaimer is, in substance, distinct from an answer, yetl it IS, in pt:>int of form, an answer, containing simply an assertionj that the defendant disclaims all right and title to the matter inl demand ; and in order to entitle the defendant to be dismissed witlij costs, the disclaimer should state that the defendant " does net and never did claim, and that he disclaims, all right and title in tha subject matter of the suit."' Lord Redesdale observes, that in some instances, from the nature of the case, a simple disclaimer m&i perl'.aps be sufficient, ^mt that the forms given in the books of pracJ tice are all of an answer and d'sclaimer.^ A disclaimer may, by order, be filed without oath but not vithj out oath and signature. The order is obtained on motion course.'^ If the defendant k^ .^Jies by motion, the consent of counsel for the plaintiff' is necessary.** Where the plaintiff applies, no con| sent by tihe defendant is required,' The disclaimer must be sworn, filed, and an office copy taken i the same manner, and within the same time, as an answer.^ If a defendant puts in a disclaimer where he ought to answer, accompanies his disclaimer by an answer which is considered insu , pUina 1 WUliams V. Jones, Young 252, 265. " 2 Jolly V. Arbulhnot, 4 DeO. & J, 224 : 5 Jur. N. 8. 689 ; 26 Beav. 283 ; 5 Jur. N. S, ! 3 Vale V. Merideth, 18 Jur. 992, V. C. W. A defendant having the same interest as the i should, if he disapprove of the suit, distinctly repudiate it : otherwisf>, the bill may M djs"" as against him, without coats, and with costs as against the other defeadants: lrm/ir<'Fl Murray, 14 Jur. 302, V. C. Wigram. 4 Ld. Red. 310. 6 For fonn of order on motion, see Patonon v. Sjnitk, cited Seton, 1254. 6 Braithwaite's Pr. 47, 67. 7 Braithwaite's Pr. 47, 57. 8 Seejw«/; Braithwaite's Pr. 57, 401. The course tc the whole bill h the party discla the defendant is upon the answ^ ' hearing.^ Where a defei J claim to the fun to verity, and af I the facts upon \^ ground for his n were prayed aga ined a great nun ^fitnesses were ^' • C., ordered hi plaintiff's costs I to the co-defenc 1 ^l^inoton V. Thw M. AC. 638; 9 Sin ; »??,*?« observations «C«Av. Beleher.l . r,'^<^«man, 1, Jur. mf DISCLAIMERS. 437 ficient, the plaintiff may take the opinion of the Court upon its sufficiency, by taking exceptions to it, in the same manner as to an answer.^ If, however, instead of applying in the first instance to the Court, by motion, to take the disclaimer off the file, the plaintiff* delivers exceptions, he will be precluded from afterwards moving for that purpose.^ Where a defendant puts in a general disclaimer to the whole bill» the plaintiff" ought not to reply to it : for then the defendant may go into evidence in support of it.^ In a case where the plaintiff' replied, the defendant was allowed to have his costs taxed against the plaintiff for vexation,* It is otherwise, however, where the disclaimer is to part, and there is an answer or plea to another part of the same bill : in such cases, there may be a replication to such Of answer.^ The course to be pursued by the plaintiff, after a disclaimer to the whole bill has been filed, is either to dismiss the bill as against the party disclaiming with costs, or to amend it ; or, if he thinks the defendant is not entitled to his costs, he may set the cause down upon the answer and disclaimer, and bring the defendant to a hearing.^ > * Where a defendant had occasioned the suit, in consequence of a I claim to the fund set up by himself, which he refused to release or to verify, and afterwards put in .^ disclaimer, stating in his answer the facts upon which he had sujr posed himself to be entitled, as a ground for his not being ordered to pay the costs of the suit, which were prayed against him, in consequence of which the plaintiff exam- ined a grtat number of witnesses to falsify such statement, but no I witnesses were examined by the defendant : Sir Lancelot Shad well, v. C, ordered him to pay the whole costs of the suit, as well as the plaintiff's costs as the costs which the plaintiff was ordered to pay 1 to the co-defendants.^ " . . 1 Qlmington v. Thwaitea, 2 Russ, 468, 463 ; Biilkeley v. Dunbar, 1 Anst. 37 ; Graham v. Coape, 3 M.AC. 688; 9 Sim. 96, 103. * son v. Sicol, 9 Beav. 403.'i ^ loJur. -no; Fords. Lord Clusterfield , ubt sup.; Appleton v. Sturgis, to W. J*- 3"' ' ;} ( Vale V. Ateridet/t, uf>isup.; Furfierv Furher, -»o Beav. 523 ; Durham v. CnukUs, 8 Jur. ' ■■ ..74.V.C. W. . ■ DISCLAIMERS. 439 filed, he offers to release his claim, or, after bill filed, to release his claim, and consent to the bill being dismissed, as against him, with- out costs, he will, if the off^r be refused, and the plaintiff still retain him as a party to the recoi'd, be entitled to be dismissed with his costs, incurred subsequently to the offer.^ And it seems that the plaintiff is bound to bear the expense of the release.'' A creditor filed a bill to set aside a deed as fraudulent against creditors, and the grantee, by his answer, disclaimed and alleged that the deed was executed without his knowledge or consent, and that when he became aware of it he repudiated it. Held, that the grantee, having been properly made a defendant, was not entitled to his costs.^ Where a defendant, having an interest in the prop- erty in question in a foreclosure suit at the time of the filing of the bill, put in a disclaimer, he will not be entitled to any costs.* A, an execution creditor of B, was made a defendant to a suit as claim- ing an interest in certain chattels, which the plaintiff claimed as prior mortgage. A. filed an answer and disclaimer ; but it appeared that his solicitor had given instructions to the sheriff to seize the interest of the debtor therein, if any. It was Imld that before answering the bill he should have notified the plaintiff that he made no claim to the chattels, and that not having done so, b^- was not entitled to the costs of the suit.^ A person interested in an Equity of Re.demption, informed the mortgagee before suit that he was willing to release to him his interest in the property. The mortgagee, notwithstanding, mad^ him a defendant to a bill for sale of the mortgaged premises, and he filed an answer setting forth his willingness to release, and that he had' before suit informed the plaintiff of such willingness, — it was held that he was entitled to his costs.^ Where the plaintiff stated in his bill that, before the institution of the suit, he had applied to the defendant to release his claim, but 1 fnrdy Ijord Chesterfield, ubi sup ; Tjock v. LmtMs, 15 Jur. 163, V. C. K. B.; Talbot, v. Kemsheadf 4 K. & J. 93 ; Bellamy v. Briekenden, ib. 670 ; Bradley v. BorUm, 7 W. B. 125, V. C. K.: Ward V. Shakenha/t, 1 Dr. & 8m 260 : Dillon v. Ashvrin, 10 Jur. N. 8. 119 ; 12 W. R. 366, V. C. K. : but see OoiHng v. Mowberry, 9 Jur. N. S H44 : 11 W. R. 861, V. C. S. ; Davis v. WhUmore, 28 .B*»T,617:6Jur.N.8.880. » imlyumer v. Clarke, 12 Grant, 130. « Wanngy. ff»«ft6«, 12 Grant, 827. \ 'mi 440 ANSWERS. the defendant refused to do so, and the defendant disclaimed and denied that any such application was made to him, and stated that if it had been made, he would have released his interest, Sir John Stuart, V.C, held that he was entitled to his costs.* It may be here observed, that in questions of this description, there is no difference between the right of an assignee in bankruptcy and that of the party whose interest he represents.^ CHAPTER XIII. ANSWERS. i t •'1? A Section I. — General Nature of Answers. The answer of a defendant consists of such statements, materialj to his case, as he may think it necessary or advisable to set forth j or, if he has put in a demurrer to such of them as relate to thd parts of the bill hot covered by such demun-er. This twofold character of an answer is peculiar to pleadings in Equity, and is not found even in those that are formed on the sama model in the Civil and Ecclesiastical Courts : the answer which thi defendant is required to make upon oath, to the allegation and ari tides being, in those Courts, a wholly distinct instrument from thj responsive allegation which contains the defence.^ Although an answer has, in general, the twofold property aKivj stated, it is seldom possible, in framing one, to keep the pan separate from each other : though, when it is practicable to do i such a course is generally desirable. It is, however, of great impo tance to the pleader, in preparing an answer, to bear in mind thaj beside answering the plaintiff's case as malaintiff's title, two inconsistent defences in the alternative, he will not be precluded from denying the plaintiff's general title, and also insisting that, in case the plaintiff establishes his title, he is })recluded from recovering l>y some other circumstance which would equally serve to i)reclude him, or any other person in whom 1 Per Alderson, B., in i Y. & C. Ex. i6o. 2 ycsus College V. Gibbs, i Y. & C. E\. 145, 160 ; and see Leech v. Bailey, 6 Pri. 504. 3 But see Na^le v. £divards, 3 Anst. 702, and the observation^> upon that case, in ycsui Collect v. Cibhs, i V. & C. Ex. 163. , lu ,t 4 Ellis V. Saul, I Anst. 332, 341 ; Jenkiiison v. Royston, 5 Pri. 495; see also Ulitlwffy. Lordtim- iiigfield, 1 Pri. 237. 5 Jesus College v. Gtobs, i Y. & C. Ex. 14s, 157 ^•ip GENERAL NATURE OF ANSWERS. 443 the title might be actually vested. Thus, in a tithe suit, the defen- dant might have denied the plaintiff's title as rector or vicar, and at the same time have set up a modus} In stating a defendant's case, it is only necessary to use such a degree of certainty as will inform the plaintiff of the nature of the case to be made against him ; it is not requisite that the same degree of accuracy should be observed in an answer as is required in a bill. Order 124 provides that, " A defendant is to admit in his answer such of the allegations contained in the plaintiff's bill as are to the knowledge of such defendant true, or as he can readily ascertain to be true, or an he has reason to believe and does believe to be true : and it shall be sufficient if such admissions ai'e expressed to be only for the purposes of the suit in which the same are made." Order 125, that, " Admissions are, in all cases where it is practicable, to be by reference to the numbers of the paragraphs in the bill to which they relate, with such qualifications as may be necessary or proper for protecting the interests of the party making such admissions ; and it shall not be necessary or proper, in any answer, to allege ignorance of any fact stated in the bill, or answer, or any other reason for not admitting any fact therein alleged." If the defence which can be made to a bill consists of a variety of circumstances, so that it is not proper to be offered by way of plea, or if it is doubtful whether a plea will hold, the defendant may set forth the whole by way of answer, and pray the same benefit of so much as goes in bar, as if it had been pleaded to the bill.''^ Thus, a defendant insisting upon the benefit of the Statute of Limitations by way of answer, may, at the hearing, have the like benefit of the statute as if he had pleaded it.^ So also, if a defendant can oft'er a matter of plea which would be a complete bar, but has no reason to protect himself n-om any discovery sought by the bill, and can offer circumstances which he conceives to be favourable to his case, and which he could nt>t offer together with a plea, he may set forth the whole matter in the same manner. Thus, if a purchaser for a valu- able consideration, clear of all charges of fraud or notice, can offer additional circumstances in his favour which he cannot set forth by iCflr/^v 5„//,3Atk.496,499. ' » Ld. Red. 308. 3 Norton v. TurvM, 2 P. Wms. 144- •'I C ' 't 'i'i ■^ ^ iH il ^>w.*5» ■* ; > '. '1 r I (■ s 44)4 ANSWERS. i i I in way of plea, or of answer to support a plea, as the expending a con- siderable sum of money in improvements with the knowledge of the plaintiff, it may be more prudent to set out the whole by way of answer, than to rely on the single defence by way of plea : unless it is material to prevent disclosure of any circumstance attending his title.i Where the same benefit has been claimed, by answer, that the defendant would have been entitled to if he had demun-ed to the bill, or pleaded the matter, alleged in his answer, in bar it is only at the hearing of the cause that any such benefit can be insisted upon ; and then the defendant will, in general, be entitled to all the same advantage of this mode of defence that he would have had, if he had adopted the more concise mode of defence, by demurring or pleading.'' In the case, however, of multifariousness, if the defendant does not take the objection ad limine, the Court, considering the mischief as already incurred, will not, except in a special case, allow it to prevail at the hearing : although it may protect the defendant from the costs incurred, if it should appear that he had been impro- perly subjected to them.^ Order 1 2G provides that, " A defendant may claim, by answer, any relief against the plaintiff which such defendant might claim by a cross bill ; and for this purpose the facts necessary to make out the defendant's right to relief are to be stated in the answer as part of the defendant's case, and he is to pray such relief as he may think himself entitled to. The Court, in all such cases, may either grant such relief upon tlie answer, or it may direct or permit a separate suit to be instituted." We now come to the consideration of the manner in which the inten-ogatories (if any) must be answered. . i?. It must here be observed that as by our practice no interrogatories are used, some of the practice described in this chapter is inapplicable in this Province. We obtain by the examination of a defendant on his answer, before a Master or Special Examiner, the same objects which the plaintiff in England does by the more tedious, expensive ',' '.•" i !• ' ■-■ ■ . • . ,, ..•1 ' -''-il ,' ■ ■' It- ■ 1 lA. Red. 309. 2 IVray v. HHtchinson, 2 M. &. K. 235, 238, 242 ; see also Millieaii v. Mitchell, i M. & C. 433i 4.47' 3 Benson v. Hadfield, 4 Hare, 32, 39 ; Casliell v. KdUy, 2 Dr. & War. 181 ; Raffety v. Km, 1 Keen, 601, 609, and sec ante. ■■:-f "Viy"-" I GENERAL NATURE OF ANSWERS. 445 and unsatisfactory process of Interrogatories. The law as to how far he is bound to answer is, however, the same in both countries, excepting in so far as it is altered by our orders, which will be noticed in their proper places. If the reader will bear these remarks in iniud he will find no difficulty in applying the English decisions to ouV practice without confusion. Under the old practice of the Court, it was necessary that the defendant sliould answer all the statements and charges in the bill, whether specially interrogated thereto or not ; but he was not bound to answer any interrogatories which were not founded ujjon the statements or charges contained in the bill :^ though, if he did so, he thereby put them in issue. Under the present practice, a defen- dant may be required to answer any interrogatories which are per- tinent to the case made by the bill, although they are not founded on specific charges or statements in the bill;'^ but he is not bound to answer any statement or charge in the bill, unless specially and particularly interrogated thereto ; nor is,he bound to answer any of the interrogatories except those which he is required to answer. A defendant is not, however, prohibited from answering any statement, charge, or interrogatory which he may consider it necessary to his defence to answer ; and he is left at complete liberty, in this respect, to act in such manner as may be thought advisable : subject to the restriction, that if he answer any statement or charge in the bill to which he is not inteiTogated, only by stating his iterance of the matter so stated or charged, such answer will be deemed imper- tinent. I *i*M».^_^ '»Air. The plaintiff"s right to discovery is not extended, by the present practice ; so that all the objections which could formerly have been urged by the defendant, to protect himself from a discovery of any portion of the matter of the bill, can now be urged against a dis- covery of that conceiTung which the defendant is specially interro- gated ; and there have always existed certain special reasons upon which the defendant might object to the discovery sought by the plaintiff: either because the discovery might subject him to pains and penalties, or to a forfeiture, or to something in the nature of a 1 yerrard\. Saunders, 2 Ves. J. 454, 458. 2 Ante. Perrev v. Turpin, Kay, App. 49 ; Mansell v. Feettey, a J. H- 313, 318 ; Law v. London IndUpittaHe Society, 10 Hare, App. 20 ; BertMrd v. Hunter, i Jur. N. S. 1065, V. C. S.; Marsh V. Keith, I Dr. & Sm. 342 : 6 Jur. N.S. 1182; Httdson v. Gren/eU, 3 Giflf, 388:8 Jur. N.S.,878. 446 ANSWERS. forfeiture;' or because it was iuiuiatcrial to tlie relief prayed;* or because it might lead to a disclosure of matter, the subject of pro- fessional confidence;' or of tlii! defendant's^own title, in cases where there is not a sufficient j)rivity between him and the plaintiff to waiTant the latter in requiring a disclosure of it.* In all these cases, although, as we have seen, the defendant may protect him- self from discovery by plea or denmrror, yet he has also always been permitted to decline, by his answer, giving the objectionable dis- covery, and to state, in that form, the grounds upon which he claims ^ protection ; and he still retains the same privilege. He must, how- ever, swear to his belief in the validity of such groimds ;'"' and the Couii must be satisfied, from the circumstances of the case, and the nature of the discovery which he is called upon to give, that the case falls. within the above-mentioned grounds of objection.*" The principle upon which the Court proceeds, in exempting a defendant from a discovery under any of the above circumstances, has been fully discussed, in considering the grounds upon which a defendant, although he does not object to the relief, provided the plaintiff makes out a case which may entitle him to it, may demur to the discovery sought ; it is only necessary, therefore, to repeat in this place what has been before stated, that if a defendant objects to any particular discovery, upon any of the grounds above stated, he may, even though the grounds upon which he may object appear upon the bill, decline making such discovery, by submission in his answer.^ » It may be observed here, that the only difference occasioned by this method of objecting to the discovery is, that if the objection be taken by demurrer or plea, the validity of it is at once decided by the Court, upon argument of the plea or demurrer ; whereas, if the objection be taken by answer, the validity of it can only come be- fore the Court in the form of exceptions to the answer, which is cer- tainly a more circuitous and expensive mode of trying the question than that afforded by demuiTing. It has, however, been held, that where the ground of objection is, that the discovery would render 4 Ante ; and see Cooke v. Turner, 14 Sim. 218, 221 : 8 Jur. 703. , e- »r « .n 5 Scott V. MilUr (No. 2), Johns. 328 : s Jur. N. S. 858 ; see Balguy v. Broadhurst, i Sim. «•*»'' 6 Sidtbottom V. Adkins, 3 Jur. N. S. 631 : 5 W. R. 743, V. C. S. ; see also Reg. v. Boyes, 1 B. * a- 311 : 7 fur. N. S. 1158; BuHH V. BwiH, 12 W. R., 561, L. J.J. ; Taylor on Evid. s. isn. 7 Antt ; Ld. Red- soo, 307. GENERAL NATURE OB' ANSWERS. 447 the defendant liable to pains and penalties, the proper coui-ae is to submit the point by answer: because, by demurring, the defendant' admits the facts to be true.^ It is a genei'al rule, that the del'endaiit is only recpiired to answer t<, those points which are necessary to enable the Court to make a decree against him;' and the objection arising from want of mate- riality is one that the defendant has always been allowed to raise by answer. The a))plication of this rule has been before discussed, in treating of demurrers to discovery, on the ground of want of materiality. ^ It may not be useless, however, in addition to the instances already refen-ed to, to mention one or two cases where the defendant's risfht to exempt himself ii'om answering to such parts of the bill has been recognized by the Court, upon exceptions. In Codrington v. Cod- nngton* a bill was fil 'd by a person claiming under the limitations of a settlement, to set aside an ai)pointment, by which his title was defeated, on the ground of fraud ; and upon an answer being put in denying the fraud, the plaintiff amended his bill, by inserting ceiiain inquiries as to the manner in which the appointment was attested, in order to show that it was not executed in the manner required by the settlement. These inquiries the defendant, by his answer, declined answering ; and upon the question coming before the Court, Sir Lancelot Shad well, V. C, held, that the defendant was not bound to answer the interrogatories in the amended bill ; l)ecause the plaintiff, having by his bill set up a case of fraud, the fact, whether the appointment was executed in conformity with the power or not, was immaterial to the case so set up. Upon the same principle, the Court holds that, where a bill is filed by a creditor or legatee, or other person claiming a definite sum out of the personal estate of a deceased person, against an executor or administrator, if the defendant admits assets in his hands sufficient to answer the plaintiff's demands, he need not set out an account of the estate,^ or set out a schedule of the docu- I HoHeymod y. Selwin, 3 Atlc. 276 ; see Attorttey-Geiural v. Lucas, 2 Hare, 566, 569 : 7 Jur. 1080 ; Eari of Lichfield \. Bond, 6 Beav. 88, 93 : 7 Jur. 209. ' ,,?''' Thomas Plumer, V. C, in Agax v. Regent's Canal Company, G. Coop. 212, 2x4; see also ivoody. Hitchings, 3 Beav. 504, 510. 3 Ante. i ' '>^eary. Regent's Catial Company, ubi sup. I; I- i - '« 448 ANSWERS. ments in his posseHMion relating to the estate:' because the admis- sion by the defendant that lie has assets in his hands to answer the plaintiff's demands, is sufficient to give the plaintiff all the relief ht can i-equire, and any discovery would be useless and irrelevant. ' So, also, the Court refused to compel discovery, where the executor of an executor admitted assets of the original testator come to the hands of his testator ;" and so, discovery was not enforced where, in a suit by the holder of a policy, the directors of an insurance .society admitted assets sufficient to pay the claims on the policy.* TJie Court will not, in general, allow the circumstance of a plain- tiff liaving a claim upon a defendant, to be used for the purpose of enabling the plaiutitt' to investigate all the private affairs of the defendant ; thus, a vendt^r, in a bill for specific performance, cannot interrogate the vendee as to his property :^ even though the biO should charge that the defendant was insolvent.® In order to entitle a plaintiff to an answer to such an enquiiy, he must show some specific Ken upon the defendant's property, and pray some relief respecting it ;'' and the Court will not, even then, compel tiie defendant to make such discovery, where the interest which the plaintiff may have in it is very remote in its bearings upon the real point in issue, and would be an oppressive inquisition • The above cases, and those before cited, point out in what in- stances the defendant may decline to make a particular discovery, when it is irrelevant to the general scope and object of the bill. A discovery may, however, be material to the plaintiff's general case, if made by one of the defendants, which would be wholly irrelevant if made by another : in such cases, the defendant from whom the discovery would be immaterial, is not obliged to make it ; and, in general, a defendant is only obliged to answer such of the interro- gatories as are necessary to enable the plaintiff to obtain a complete decree against him individually. Where, however, the defendant is involved in the whole case, and in that sense relief is I Forbes v. Tanner, o Jur. N. S. 455 : 11 W. R. 414, V. C. K. iPuUeH\.Smttk,$\ts.^l,^■i, , „v 3 Lander y. IVeston, 13 Jur. 877, V. C. E. ^ Prtc/iardv. Murray, 12 Jur. 616, v. C. ^. ;.■:' ' "'., 5 Francis V. IVigzeil; 1 Mud. 258 a6o. ' _■■• 6 See Small-v. Attwood, as reported in Wigram on Disc. 168. "' ■'• '■ " 7 Francis v. IVigzell, ubi sup. ' „ . „ 8 Wigram on Disc. 165 ; Dos Sanlos v. Frietas, cited ib.; IVebster v. Threlfall, a S. * S. 1901 '53< see also Jatison t. Solarte, 2 V. & C Ex. 132, 136. GENERAL NATURE OF ANSWERS. 440 I against him, he must answer: though the interrogatory might seem I to be immaterial to tlie relief asked against him.^ With reference to the objection of immateriality, it must be I understood that the defendant is only required to answer as to matters which are well pleaded, that is, to the facts stated and charged. To matters of law, or inferences of law drawn from the facts, he need not answer. Thus, a defendant must answei 'vhether a will, executed before the Wills Act,^ was published by the testa- tor in the presence of three witnesses; but he need not answer to I an interrogatory requiring him to say whether the publication was I such as by law is required to pass freeholds by devise. Sometimes adefeodant, instead of answering such inte rogatories, submits the pomt to the judgment of the Court ; but it is not necessary to do so. All the objections to discovery that have hitherto been con- Isidered, are of a kind that the defendant has always been allowed I to raise by answer, upon the principle that the Coui-tdoes not oblige , defendant to answer such questions, even when the right to relief I is admitted; but where these objections do not apply, it must be remembered that " there is no principle more clearly established in [the Court than this : thaty when a party answers, he is bound to answer fully, and for this, among other reasons, that if the defence which a party sets up by his answer should be decided against him, it is of the utmost importance that all consequential matters which lare material for the purpose of the decree, should receive an I answer."* This rule is applicable to all cases where the defence intended to jbe set up by the defendant extends to the entire subject of the suit : Isuch, for instance, as that the plaintiff has no right to equitable jrelief— or has no interest in the subject — or that the defendant him- has no interest in the subject — or thati he is a purchaser for a Ivaluable consideration — that the bill does not declare a purpose for jwhich equity will assume jurisdiction to compel discovery — or that ' Mat shv. Keith, i Dr. & Sm. 34a: 6 Jur. N. S. 1182. On the subject of immateriality, see also iv»,V- ^y'"^*; 4 Drew. 248; Newton v. Dimet, 3 Jur. N. S. 583, V. C. W. » 7 Will. IV. & I Vic. c. 26. '• "'Lord Lyndh)irst. In Lancaster v. Evors, 1 Phil. 861, 852 ; 8 Jur. 183 ; Hare on Disc. 266, 256 ; i..?^,V *<»coM%, 6 Mad. 218, 229 ; Fatdder v. Stuart, 11 Ves. 296, 301 ; Mazarredo v. Mait- 1 1*1 **'?• ^' '<*J Swinbmme v. Ifeliton, 16 Beav. 416; Potter v Waller, 2 De G. & S. 410: Amwered. Blunt, 868 (n); Beade v. Woodrooffe, 2i Beav. 421« Leighv. Birch, 32 Beav. 899: » Jur. N. 8. 1266 ; Steabey v. Sutton, 1 H. ft M. 614 : 9 Jur, N. S. 1321. 5 I 450 ANSWERS. ' 5 the plaintiff is under some pei-sonal disability, by which he hi incapacitated from suing.* In all these cases, a defendant who do not avail himself of the objection to answering, either by deinumrj or plea, but submits to answer, must answer fully.^ Nor is a denia of the plaintiff's title a reason for refusing to set out accounts! required by the interrogatories ;=* nor a denial of fraud a reason foif refusing to discover the facts which are alleged to show it.* Inl some cases, however, where it has appeared that the discoveiyl was not necessary to enable the plaintiff to obtain a decree, andl where the information could be obtained in the proceedings underl the decree, a full answer has not been enforced/' i a A defendant may, however, as we have seen," by answer declinel answering any interrogetory, or part of an inteirogatoiy, froml answering which he might formerly have protected himself by dcj UiUiTer ; and he may so decline, notwithstanding he answers otherl parts of such interrogatory, or other inteiTogatories from which hej might have [)rotected himself from demurrer, or other parts of the! bill as to which he is not interrogated ;7 but he cannot declinel answering a [(articular interrogatory on the ground that the wholel V)ill is denuirrable ;** nor can he protect himself from discoverj' byj raising by answer a defence which he nright have pleaded." A defendant must answer as to his knowledge, remembrance, iul'ur- mation or belief Where, however, a special cause is shown, soj positive an answor may be dispensed with ;i^ and in Hall v. Bodlf it is sa,id, that a defendant having sworn in his answer that hehadi received no more than a certain sum, to his remembrance it wasj allowed to be a good answei. As to facts which have not happened I 1 (rilbert V. Lewit), 1 De a. J. & S. 38: 9 Jui. N. S. 187. •2 Hare on Dine. 2MJ. , 3 Dott V. Iloifeit, 15 Sim. 372: 10 Jur. 028: Gi'eat Lxixentbuimj Jiailway Company v. Ma^mi^l Beav. t!4«; Brooke* \. Horehfi,H Jur. M. S. 639: 10 W. R. 708, V. C. W.; Leifih v. Bxrei.mt Swahcy V. SitttoH, ulii mip . ,1 i PniUry V. Lhicoln Water Worlcn Company, 2 M'J & CJ. 68, 72 : 14 Jur. 200 ; v. Uarrm^l Mad. 2.V2. 5 Dela Rue v. Dwlcuui^a, 3 K. & J. 388; SwitUiuriw v. Xe/gon, refd. to id. 389 ; Clegg\. Mmo'M^A 3 Jur. N.S. 290, L.J. 6 Ante. „ 7 Padlcy v. Uacoln Water Worku Compa.'ii, 2 MN. & G. 68, 71 : 14 Jur. 209 ; Baddeleij\.CmM' 2 Coll. 151, 156 ; Fairthorne v. Western, 3 Hare. 387, 391, i!03 : 8 our. 363 ; Molenmrth \.m- ard, 2 Coll. 145, 161 ; see, howc/er, Tipping v Clarke, 2 Hare, 383, 392, Drake V; ^"f;"'! 647 : 8 Jur. 642 ; Kayay. Wall, 4 Huro. X27: /lujilby v. Stia/to, 33 Beav. 31 : 9 Jur. N. 8. la 8 Manoii V. WaPemmi, 2 Phil 616 ; Fither v. Price, 11 Beav. 104, 190; Mamh v. Keith, 1 J^r- •»" 342, 350 : 6 Jur. N. S. 1182 ; Bates v Ch> ««'« College, Cambridge, 8 De G. M. * «. 728: J JUf N. ,-!. 348, L.JJ.; AcijA v Birch, 32 Beav. 399: 9 Jur. N. S. 1266. ,, „ . „ ,. « 9 Laneagter v. Evoi-t, 1 Phil. 349, 351 : 8 Jur. 188 ; Sxeabey v. Sutton, 1 H. * M. 614: » Jur. .>.- 1321, V.C.W. 10 Wvatt'8 P. B. 13. 11 1 Vern. 470 ; and vce Aeivoa v. PotuJ'crd, 4 Bmt. 41, 48. UEiNEllAI, NATUKE OF ANSWERS. 451 within his own kuowledge, the defendant must answer as to his in- l funnation and belief, and not as to his information merely, without stating any belief either the one way or the other.^ It is not, how- 1 ever, necessary to make use (jf the precise words " as to his infor- mation and belief " : the defendant may make nse of any expres- sions which are tantamount to them ; thus, to say that the de- fendant cannot answer to facts inquired after, as to his belief or ' otherwise, is generally considered a sufficient denial ; for though I the word "information" is not used, the expression "belief or otherwise," is held to include it. And so, where an answer was in this iorni : " And this defendant further answering saith, it may be I ti-ue for anything he knows to the contrary that," and after going through the several statements, it concluded thus : " but this de- fendant is an utter stranger to all and every such matters, and can- not form any belief concerning the same," Sir Join Leach, V. C, was of opinion, that the defendant, in stating himself to be an utter stranger to all and every the matters in question, did answer as to his information, and did, in effect, deny that he had any informa- tion respecting them.^ It may be collected from the above case, that I a defendant cannot, by merely saying " that a matter may be true I for anything he knows to the contrary," avoid stating what his re- j collection, information, or belief ith reference to it is, or saying that he has no recollection or information, or that he cannot form any belief at all concerning it : either in these words or in equiva- j lent expressions. Where defendants have in their power the means of acquiring the information necessary to enable them to give the discovery called for, they are bound to make use of such means, whatever pains or trouble it may cost them ;^ therefore, where defendants, tilling the character of trustees, are called upon to set out a)i ac- I count, they cannot frame their answer so as merely to give a suffi- cient gi'ound for an account ; they are bound to give the best ac- [ count they can by their answer : not in an oppressive way, but by refemng to books, &c., sufficiently to make them parts of their 1 CuoD. Eq. PI. 314. •i ^nihurtt V. King, 2 8. A S. Ito i i>w Taylor v. liuiidell, C. X P. 104, 11»: 6 Jur. 1120 ; Kurl <>/ GUngall v. Fraziu; 2 Hare, 99, 103: Jl"': ^P*^' 'S'«<»»^ V. Lord Bute, 12 Sim. 4(30 ; AttonieyGcncral v. Jieeg, 12 Beav. 50, 54; i« "* l^rtat WttUrtx RaUway,^ De G. Ik Sni 502; hujlciisi v. Spaitali, 20 Beav. 504; AtUniu-j-Gcne>aiv. BurgmeHo/ Eait Retford, 2 M. & K. 35, 40 452 ANSWERS. answer, and afford the plaintiff an opportunity of inspection, ii order that he may be able to ascertain whether that is the bes account the defendants can give.^ Where, however, the defendant has, since the filing of the billj lost his interest in the suit, and has no longer access to the docuj ments, he will not be required to refer to them.^ Where defendants are required to set out accounts, they may, fori the purpose of rendering their schedules less burthensome, insteadl of going too much into particulars, refer to the original accounts inl their possession in the manner above stated f but when it w sa' that a defendant may refer to accounts in his possession, it must not! be understood as authorizing him to refer, by his answer, to ac- counts made out by himself for the purposes of the case, but onlyl to accounts previously in existence.* To such of the interrogatories as it is necessary and material foil the defendant to answer, he must speak directly and without eva-ji sion f and any interrogatory not intended to be admitted, ought tol be traversed with accuracy.*' Where a fact is alleged, with divei'sj circumstances, the defendant must not deny or traverse it literalhj as it is alleged in the bill ; but must answer the point of substance, positively and certainly ;^ thus, if a defendant is interrogated whe ther he has in his possession, custody, or power, books, papers, orj writings, a statement in his answer that there are certain b()oks,| pa})ers, or writings in the West Indies, the particulars of which lie is unable to set forth, without any answer as to the fact whetherl tliey are in the defendant's possession, custody, or power, will liej iusiithcient : nfor if the defendant admits the books and writings to Ije in his possession, custody or power, the plaintiff may call upnn tlie defendant to i)roduce them ; which the Court will order within a reasonable time.** The reference in the answer must derfcribo tliej books or documents with such accuracy as to enable theplaintitltoj 1 White V. WiUiamn, 8 Vos. 193, 194 •2 Ellwand v M'Donmtl, 8 Bcav. 14. 3 White V. Barker, 5 Du G, & S. 748: 17 Jiir. 174 ; Majn,- v. A nwtt, 2 Jur. N. S. 387, V. C K ; Drait V. Si/mes, .Johns 647; Telford v. Rmkiit, 1 Dr. & Sm. 148; Chruitian v. Taylor, 11 Sim, 4"l. Bally V. Kenrick, 13 Pri 291. 4 Telford w. lluskin, 1 Dr. h Sm. 148 , arguendo Alsager v. Johnion, 4 Ves 224 5 Ld Rod. 309 C Patrick v. Jilackudl, 17 Jur 803, VOW., Earp v. lAuyd, 4 K. * -J. 58. 7 Ld. Red, 309 ; DaUy v. Kenrick, 13 Pri 291 ; Tippinn v. Clarke, 2 Hare, 883, 390. 8 Enrquhariivn v. Baljour, T. k R, 190. If a defendan ment, in the wc reason for not c a\' '1 i .IS by a possession, and a defendant set r-'her in kcec J 'aution to ( fendant makes any charge in c If the defend and not by wa inteiTogated w deny or traven or else set fort' Where the stances, a gene: such circumsta may include in mode of answe wcape from a 1 Immn v. WHtle\ to (irderpt<>(liu' ■- PiTijuharxmi v. j o Wyatt'n p. R 204 see ante. ^ HaiT. by New), lis ■ I'll Red 309. ■I Wharton v. IfVm. i^( "./ C3inb Jur. 808, V C -• Dt Wintmi., GENFRAL NATURE OF ANSWERS. 453 m, 8bes 5 biUJ docu-l ly, fori isteadj nts inl st iiotl to ac- tonlyl 1 upon withiol be die itiffto l:Dni<\ Sini, W;! move for their production : otherwise, the answer will be open to exceptions for insufficiency.^ Where a defendant stated ii his answer that he had not certain books, papers, and writings, in his possession, custody, or power, because they were coming over to this country. Lord Eldon held, that they were in his power, and that the defendant ought to have so stated in his answer.^ Where books, papers, or wi'itings, are in the custody or hands of the defendant's solicitor, they are con- sidered to be in the defendant's own custody or power, and should be stated to be so in his answer. If a defendant is called upon to set out a deed or other instru- ment, in the words or figures thereof, he should do so, or give some reason for not complying with the requisition : ^ he may, however, a\i (1 ti.is by admitting that he has the deed or instrument in his possession, and offering to give the plaintiff a copy of it * Where a defendant sets out any deed or other instrument in his answer, r her in accc t'er6a, or by way of recital, it is always a proper J aution to crave leave to refer to it : as, by so doing, the de- fendant makes it a part oj" his answer, and relieves himself from any charge in case it should be eiToneously set cut. If the defendant deny a fact, he must traverse or deny it directly, and not by way of negative pregnant : as, for example, where he is interrogated whether he has received a sum of money, he must deny or traverse that he has received that sum, or any part thereof, or else set forth what part he has received. Where the defendant is interrogated as to particular circum- stances, a general denial must be accompanied by an answer- as to such circumstances : ^ for although it is true th8,t the general answer may include in it an answer to the particular inquiry, yet sucii a mode of answering might, in some cases, be resorted to, in order to escape from a material discovery ;^ and, therefore, a general denial I in which it may bn prudent to set out documents in luec verba. 1 Iiwuin V. Whittev. 4 Beav 548; Phelpn v O'ive, ib. 549 n., where Lord Cottenhani, M R , refused to (irder pioiiiiiiion of documentu duHcnbed as "abundleof papers marlced O" '- rnri/nliarmn v. Balfour, ubi mp. i Wyatt a IV R 204 As to the cases li ii«e ante. * Harr.bvNewl. 185. • Ul Red 309. 'I WImrtnnv. Wharton. 1 R. A: S 236 ; T<-^onig v. Clarke, 2 Hare, 383 .3P9 ; Duke of nruniM'ick v. ^« <•/ Cambridge, 12 B«>av. 281; Jod, " ■• Slaney, 10 Beav. 22.5, Patrick v. IHackxcell, 17 Jur. 803, V. C. W. ; Enr.. v. Lhniff, 4 K. & J r,8 , sec also A nan. 2 Y. & (J. Kx. 310 ; nridgitcnti-r ". Oe JKitttwi, » jur. N. S 1270 ": Li W. II, 40, V. C. K. .4 ^1 J 4.54- ANSWERS. M'} C iH not enough, but there must be an answer to sifting inquiries upon the general question.^ The advantage of this rule is strongly I illustrated by the circumstance referred to in Hihherf v. DuraniU In that case, the defendant was interrogated whether he had not] received certain sums of money, specified in the bill, in the charac- ter of a ship's husband; in his answer, he swore that he had not I received any sums of money whatever, except those set forth in the schedule to his answer, in which schedule the sums specified in the | bill were not comprised, but he did not otherwise answer the inter- rogatory. On the (juestion of the sufficiency of the answer, Lord I Thurlow said, that a man could not deny, generally, particular charges which tended to falsify such general denial, and, therefore, held the answer insufficient ; and it appears by a note of the repor- ter, that it turned out, in i)oint of fact, that the defendant after- wards recollected the receipt of the particular sums, and admitted j them by his further answer. But, although the Court requires, that all the particular inquiries should be answered, as well as the I general question, it will Le no objection to the answer to the parti- cular interrogatory, that the defendant has not answered it so parti- cularly as to meet it in all its terms, provided it is, with refer^^co j to the object of the bill, fairly and substantially answered.* It is, howei'er, the general practice, where the defendant is re- ((uired to set forth a general account, or to answer as to monies I received, oi* documents in his possession, to set forth the account or list of the sums, or documrnts, in one or more schedules annexed to i the answer, which the defendant prays may be taken as part of his answer; and such practice is very convenient, and in many cases indispensable. The defendant must, however, be careful to avoid any inconsistency between the body of the answer and the schedule; for if there is any, the answer will be insufficient, and the defendant | may be required to put in a further answer.* The defendant may also resort to a schedule for the purpose of sliowing the nature of his | own case, or of strengthening it : even though there is nothing in the interrogatories which may render a schedule necessary." In general, a defendant must be careful not to frame his schedule, 1 Per Lord Eldon, in Mount/nrd v. Taylor, 6 Ves. 792. „ i »in 2 Cited ill Frmit v. (Inderwml, 2 Cox, 135; Ilfplmm y. Duiand, 1 Bro. C. C. 603 : I.il. Ked tvs 3 Bally V- Kenriek. 13 Pri. 291 ; wee uIro llende v. Wondrooffe, 24 Beav. 421. 4 Bndqtuiit>'r v. /> Wintun, 9 Jiir. N. S. 1270 : 12 W. B. 40, V. (;. K. & Varicer v. FnMl , T. & K. :i«2 : 1 S. & S. 29.0 ; Lntve v. Winiauiii, 2 S & S. 574, 570. the bill as to thi '*'7" GENERAL NATURE OF ANSWERS. 455 lin a manner which may be burthensome and oppressive to the plain- tiff: otherwise it v. Ill be considered impertinent. Thus, where a I bill was filed for an account, containing the following intenogatory, 'whether any and what sum of money was due from the house of li.tothe house of B., and how the defendant made out the same ?" and the defendant, by hif: answer, aet forth a long schedule, contain- ing an account of all dealings and transactions between the two houses, the answer was held to be impertinent, and the Couit said I tie defendant ought merely to have answered, that such a sum was due, and that it was due upon the balance of an account.^ In the ist c«se, although there was an inquiry how the defendant made uUhat there was a balance, there were no ])ait'cular inquiries in Itkbillasto the items, constituting the account, from which the defendants made out that there was a V»alance due to them ; and even where there has been such an inquiry, the (Jouvt has gone the length of saying, that a schedule containing such items will be impertinent, if the items are set out with a minuteness not called I for by the nature of the case. Thus, where the bill called upon a defendant to set forth an account of all and every tlie (piantities of ore, metals, and minerals dug in particular mines, and the full value thereof, and the costs and expenses of working the mines, and the clear profits made thereby, and the defendant ])ut in a schedule to his answer, comprising 3,431 folios, wherein were set forth all the particular items of every tradesman's bill connected with the mines, the Court held the schedule to be impertinent.- In like manner, it seems that in the case of an executor called upon to account for his disbursements, it is not necessary to set out every sei)arate item. "' It is difficult, howovf>r, to ])oint out any precise rules M^ith regard to what will be considered iinpertinent in a scheduh ; much must depend upon the nature of each case, and the purposes for which the discovery is required. Tlie cases above refei-red to, and the others which may be found in the books ahi c 450 ANSWERS. dant to load the record with useless and impertinent matter, even though the introduction of such matter might be justified by the terms of the interrogatories. On the other hand, it is to be observed that the Court will not, where the defendant, in complying with the ! requisitions of the bill, has bona fide given the information required, though in a manner rather more prolix than might perhaps be neces- sary, consider the answer as impertinent : for, although prolixity sometimes amounts to impertinence,^ whether the Court will deal I with it as such depends very much upon the degree in which it | occurs.^ In answering an amended bill, the defendant, if he has answered the original bill, should answer those matters only which have been introduced by the amendments. In fact, the answer to an amended bill constitutes, together with the answer to the original bill, but one record :^ in the same manner as an original and an amended bill; hence, it is impertinent to repeat, in the answer to the amended bill, I what appears upon the answer to the original bill, unless by the repetition the defence is materially varied.* Section IL — Form of Answers. Two or more persons may join in the same answer ; and where their interests are the same, and they appear by the same solicitor, they ought to do so. The Court will not, however, before the hear- ing, and at a time when it cannot be known how the defence should I be conducted, visit tbe defendants with costs as a penalty for not joining in their answer; and it is only at the hearing, wlieu all danger of prejudice to the parties is over, that the Court will make any order upon the subject,^ Where the same solicitor has been employed for two or more defendants, and separate anrwers have been filed, or other proceedings had by or for two or more of sucli defendants separately, the Taxing Master will consider, in the tax- ation ot such solicitor's bill of costs, either betw^een party and party, or between solicitor and client, whether such separate answers or i other proceedings wer^ ut- cessary or proper ; and if he is of opinion | 1 Slack V. Evann, ubi mip. 2 Gompertz v. Best, 1 Y. & C. Ex. 114, 117. 3 Ld. Red. 318 ; Hildj/ard v. Crensy, 3 Atk. 303. 4 Smith V. Serle, 14 Vus 415. „, 5 Vansandaii. v. Moore, 1 lluss. 441, 454 : 2 S. & S. 509, 512 ; and see WoodM v. Woods, 6 Hare,-ii 1, FORM OF ANSWERS. 457 that any part of the costs occasioned thereby has been unnecessarily or improperly incurred, the same will be disallowed.^ No general rule can be laid down, detennining when defendants, appearing by the same solicitor, may sever in their defence ;2 practically, the Tax- ing Master has to exercise his discretion in each particular case. Where defendants have a joint interest only, they will not, in general, be allowed to sever in their defence ; and there are many eases where, only one set of costs has been allowed by the Court to two defendants, whose interest was so far joint as to have made a severance of their defence unnecessary. Thus, trustees will not, in general, be allowed costs consequent upon their sepaiate defences, unless some of them have a beneficial interest or there is some spe- cial reason for their severance.^ So, trustees and cestuis que trust, if they have no conflicting interests, wiil, in general, be only allowed one set of costs.* The same principle applies, as between a hus- band and his wife,^ a bankrupt and his assignees,^ and, in an admin- istration suit, between an assignor and his assignee.^ The seve- rance will, however, be justifiable where the suit is against two trustees, one of whom only is charged with a breach of trust ;'^ and, in some cases, where they reside at a distance from each other.^ Where only one set of costs is allowed, the Court does not, gene- rally, declare to whom it is to be given ; ° but where one trustee only, in obedience to an order, paid a sum of money into Court, he was held entitled to the whole of the costs.^*^ If the defendants are permitted to sever, they will be allowed the costs of separate counsel, though they take the same line of defence." Our order 122 provides that " Answers may be in a form similar to the form se^ out in Schedule F to these orders, and are to consist 1 Woodg V. Woods, 5 Hare, 229, 231. 2 Greedy v. Lavender, 11 Beav. 417, 420 ; Remnant v. Hood (No. 2), 27 Beav. 613. a Gaunt V. Tat/lor, 2 Beav. 340: 4 Jur 166; Dudgeon v. Cnrlcy, i Dr. & War. 158: Tarbuckv. Hoodciwk, 3 Beav. 289 ; Uodmn v Caxh, 1 Jur N. S. 864, V. C. W.; Course v. Humphrey, 26 Beav. 4(12: 5 ,Tur N. S. 615, Prince v. Him, 27 Kcav 345; Attorney-General v. Wyville, 28 ur ^^*' '^"'' '"^'^ Morifan & Davey, 87. 4 Woodx V. WondK, ubi sup.; Fart v. Shvriffe, 4 Hare, 528: 10 Jur. 630; Remnant v. Hood, ubi sup. 5 Garey v. Whittinahavi, 5 Beav. 268, 270: 6 Jur. 545. « Hemiant v. Hood (No. 2), 27 Beav. 613; Greedy v. Lavender, 11 Beav. 417, 420. I Webbv. Webb, 16 Sim. 55. ^'Sf'"'d9« V. WfHtbrook, 4 Beav. 212; Wiles v. Cooper, 9 Beav. 298; Cormnim v. Brownfleld, 3 Jur. N. S. 657, V C. W. ^ 9 Course v. Humphrey, 26 Beav. 402: 5 Jur. N. S. 615; Attorney-Genera! v. Wyville, 28 Beav. 464. 10 Frinee v. Hlne, 27 E-^av. 345. and se° Morgan & Davey, 87, 83. li Uambrujge y. Mots, 3 Jur. N. S. 107, V. C. W. I 1 i m '-< M, §:m 4iiS ANSWERS. ''* of a clear and concise statement of such defences as the defendant desires to make. The signature of counsel is unnecessary ; the answer is to be verified by the oath of the defendant, and the jurat may be in the form set forth in Schedule F."^ The answer must not refer to another document, not on the files of the Court, as con- taining the statement of the defendant's case.^ The fact that an answer had been sworn before a commissioner who had l^een for- merly concerned as solicitor in the cause, was not held to be ground for taking the answer off the files ; but where an answer had been irregularly transmitted, it was ordered to be re-sworn within a given time.' It may be remarked, as to the latter part of this de- cision, that it was made under Sec. 5 of Order 43, of the Ordew of June, 1853, which required papers to be transmitted to the Registrar or Deputy Registrar by post, sealed, or by special mes- senger, who was required to swear that he delivered the document as he had received it. This order has been left out in the Consoli- dated Orders of June, 1868, and now an answer may be brought to be placed on file in the same way as any other paper. An answer must be intituled in the cause, so as to agi'ee with the names of the parties as they appear in the bill, at the time the answer is filed.* A defendant may not correct or alter the names of the parties as they appear in the bill ; if there is a mistake iu his own name, he must correct it in the part following the title of the cause, thus : " The answer of John Jones (in the bill by mis- take called William Jones)".** An answer is headed : " The answer of A. B., one of the above- named defendants, to the bill of complaint of the above-named plaintifi"." If the bill has been amended, the heading states that the answer is " to the amended bill of complaint of the above named plaintiff!^ If two or more defendants join in the same answer, it is headed : " The joint and several answer ;" but if it be the answer ot a man and his wife, it is headed " The joint answer." If a female defendant has married since the filing of the bill, but before answer- ing, she must either obtain an order for leave to answer separately 1 For Schedule F. see Vol. of Forms. 2 Falkland Is/and Cmnpany v. Laftme, 3 K. & J. 267. 8 Gordon v. Johnton, 2 Cham. R. 206. 4 Braithwaite's Pr. 44. 6 Ibid.; Attm-ney-Oeneral v. WoreeHter Corporation, 1 C. P. Coop. t. Cott. 18. 6 Bii/by V. Iliglty, 9 Beav. 311, 313. FORM OF ANSWERS. 459 (ir answer jointly with her husband, who, although not named on the record as a defendant, may join in the answer : in which case, the answer should be headed " The answer of A. B., and C. his wife, lately and in the bill called C. D., spinster (or widow as the case inav be)."^ The answer of an infant, or other person answering by guardian, or of an idiot or lunatic answering by his committee, is so headed. Any defect occurring in the heading of an answer, so that it does not appear distinctly whose answer it is, or to what bill it is an answer, is a ground for taking it off the file for irregularity. Thus, where an answer was intituled " the joint and several answer of A B. and C. D., defendants, E. F. and G. H., complainants," omitting the words, " to the bill of complaint of," it was, on motion, ordered to be taken off the file for irregularity.^ So also, where the plain- tiff was misnamed in the heading, an order was made to take the answer off the file;^ and so, where the bill was filed by six persons, and the document filed purported to be an answer to the bill of five only, the answer was ordered to be taken off the file.* If, however, it is clear to whose bill it is intended to be an answer, this course will not now be followed.^ The notice of motion, in such a case, should not describe t^e document as the answer of A . B., &c., but as a certain paper writing, purporting to be the answer.® An answer with a defect of this sort in the title is, t-- liact, a nullity, and may be treated as such ; and although a defendant may, if he jjleases apply to the Court for leave to take the answer off' the file and reswear it, it is not necessary that he should do so, but he may leave the answer upon the file, and put in another.^ Where an answer has been prepared for five defordants, it cannot he received as the anhwer of two only f and where such an answer had been filed it was, upon the motion of the plaintiff, ordered to be taken off the file.® In an earlier case, however, before the same Judge, where a joint and several answer included in the title the 1 Braithwaite's Pr. 46. 2 Pkten v. Thompnon, G. Coop. 249. S Gmthi V. Wood, 11 Yes. 62; Fry v. Mantell, 4 Beav. 485: S C. win. Fry v. Marttl, 6 Jur. 1194; Vpton V. Sowten, 12 Sim. 4.5: S. C. nom i'pton v. Lowten, 5 Jur. 818. 4 lope V. Parry, 1 Mad. 8.S. As to Hcanrial iiml impertaience in the lieadingr of an answer, see Peek V. Peck, Moss. 45 5 Rabbeth v. Squire 10 Hare. A pp. 3. 8 Sta 11 Ves. 64. . npp ' OiifflthH V Wood, ubi mp. » Uarrin v Jamm, 3 Bro. C. 0. 399. It Coote V. WestaU, 1 Mad. 265; and seeyos<. '«— llll.HII*' 'jlmm tm \9t- ■J V-l 460 ANSWERS, '1 A .i; •^«n t«';: names of persons who refused to join in it, the answer was ordered to be received as the answer of those defendants who had sworn to it, without striking out the names of those who had not.^ And an answer which has been prepared as the answer of several defendants, but only sworn to by some of them, may, by special order, be direct- ed to be filed as the answer of those defendants only who have sworn to it ; and an order may be subsequently made, that a defendant who has not sworn to it, (he being out of the jurisdiction when the answer was filed,) be sworn to it by the Record and Writ Clerk, without the answer being taken off" the file, and that such answer, when so sworn, be treated as the joint answer of all the defendants whose answer it purports to be.^ Sometimes the Court has, under special circumstances, directed an answer to be received, though it has not been signed by the defendant ; as, where a defendant went abroad, forgetting, or not haviiig had time, to put in his answer ;^ and where a defendant had gone or was resident abroad, and had given a general power of attorney to defend suits.* Where an answer was put in under the authority of a power of attorney, the Court thought it better to take the answer without any signature, than that the person to whom the power is given should sign it in the name of the defendant ; the power of attorney should be recited in any order authorising the answer to be put in under it.'' Unless the Court otherwise directs, the answers of all persons (except corporations aggregate) must be put in upon the oath of the parties putting in the same, where they are not exempted from taking an oath by any statute in that behalf^ Corporations aggie- gate put in their answer under their common seal,'^ There is no authority for allowing a corporation to file an answer without seal, except by consent.^ The Attorney -General signs, but does not swear to liis answer. 1 Done V. Read, 2 V. & B. 310. 2 Lyons V. Bead, 1 & 15 Nov. 1856, cited Braithwaite's Pr. 51, 52. And see Haytcardv. RoherU (1857. U. 152), March, 1858; and Lane v. London Bank o/ Scotland (1S04, L. 128), leMarcn. 1865, in which lilie orders were made: the latter on petition of course, by consent of the plaintit 3 V. Lake, 3 Vea. 171 : — ; — v. Gwillim, ib. 285: 10 Yes. 442. 4 Bayley v. DeWalkiers, 10 Ves. 441; Harding v. Harding, 12 Ves 159. 6 Bayley V. DeWalkiers, ^ibisup. 6 See Stat. 7 & 8 Will. HI. o. 34, s. 1 ; 8 Geo. I. c. 6, s. 1 ; 22 Geo. II. c. 30, s. 1 ; ib. c. 46, s. 36 ; 9 Geo. IV. c. 32, s. 1 ; 3 & 4 Will. IV. c. 49 ; ib. c. 82 ; 1 & 2 Vic. c. 77 ; and see jA. c. 105. It is to be observed, that an afflrmation cannot be taken under a commission authorizing the cnmniiS' sioners to take an answer upon oath : Parke v. Christy, 1 Y. & J. 633. 7 It is desirable, though not essential, that the affixing of the seal should be attested by some official of the corporation : Braithwaite's Pr. 53. 8 GUdersleeve v. Wolfe Island H. di C. Company, 3 Ch. R. 353. FORM OF ANSWERS. 461 The oath, when administered to a person professing the Chris- tian religion, is upon the Holy Evangelists. But persons who do not believe the Christian oath, must, out of necessity, be put to swear according to their own notion of an oath;^ therefore, a Jew may be sworn upon the Pentateuch with his hat on f and a Hea- then may be sworn in the manner most binding on his conscieuce. In Ramkissemeat v. Barker,^ wheie the defendant to a cross bill was resident in the East Indies, and professed the Gentoo religion, the Court directed a commission to the East Indies, and empow- ered the commissioners to administer the oath in the most solenm manner as in their discretion should seem meet, and if they admiu- istered any other oath than the Christian, to certify to the Couit what was done by them. Our order 130 provides that " An answer or disclaimer, whether sworn within the jurisdiction of the Court, oi out of the jurisdic- tion under a commission or otherwise, may be filed without the oath of a messenger, and without any further or other formality than is rei[uired in the swearing and filing of an affidavit." Order 131, that " Alterations or interlineations in an answer or disclaimer, made therein previously to the taking thereof are to be authenti- cated according to the practice in use with respect to affidavits." Order 132 that " It shall not be necessary to issue a commission to take the answer or disclaimer of a defendant resident out of the juris- iliction of the Court, but such answer or disclaimer may be sworn or atiirmed before any of the persons named in the first and third isections of the Statute passed in the 26th year of the reign of Her Majesty Queen Victoria, and chaptered 41." And Order 133 that ■ An answer may be filed without oath or signature by consent, without order." The Court will not permit the answer of a defendant, represented to be in a state of incapacity, to be received without oath or signa- ture, though a mere trustee and without interest: the proper course, in such case, being for the Court to appoint a guardian by whom the defendant may answer.* 1 Omyehund y. Barker, 1 Atk. 21, 46. 2 Hiiide, 228. But, though the head be covered, the right hand in which the book is held, must be uncovered. A Jew may, if be pleases, be sworn while his head is uncovered : Braithwaite's * r, t>4o* i lA^*^' ^^* ^- ^oi* '<)"» ot Jurat in the case of a Hindoo, see Braithwaite's Oaths in Chan. 86. * W^hon V. Grace, U Ves. 172. m IMAGE EVALUATION TEST TARGET (MT-3) ^^ 1 // y 4|^ 1.0 I.I 11.25 ■ttlli lU 1.4 11.6 6" Hiotographic .Sciences Corporation 23 WEST MAIN STRHT WEBSTIR.N.Y. 145S0 (716) 872-4503 ■.* ^ 462 ANSWERS. An answer put in without oath or signature, and accepted witliJ out either of those sanctions, gives the same authority to the Cuurtl to look to the circumstances denied or admitted in the answer lA put in, for tlie purpose of administering civil justice between the! parties, as if it was put in upon oath.^ € Section III. — Swearing and FUlng Atiawers. Our order 88 provides that " A defendant who has been served with an office copy of a bill of complaint within the jurisdiction of I the Gr 'a:<,, irf to answer or demur, within one month after the sendee f of the otj' i copy of the original or amended bill, as the* case may be." (2iu. June 1853 : Ord. 12. S. 2.). By oruer 89 " Where 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 service of the bill as amended." (3rd June, 1853 ; Ord. 12 S. 2.) Oider 90 provides that " The time within which a defendant, served out of the jurisdiction of the Court, with an office copy of a bill of | complaint, shall be required to answer the same, or demur thereto, is as follows : — 1 " If the defendant is served in the United States of I America, in any city, town, or village, within ten miles of 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 | demur within six weeks after such service.' " 2. " If sei*ved within any State of the United States of America, not within the limits above described, other than Florida, 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, be ib | to answer or demur within eight weeks after such sei'vice." 1 P«r Lord Bldoii, in Curling v. MarquU T^umthtnit 19 Vm. 6S8, 080. SWEARING AND FILIXH ANSWER" 463 4. " If served within any part of the United Kingdom, or of the Island of Newfoundland, he is to answer or demui* within ten weeks I after such service." I 5. " If served elsewhere than within the limits above designated, I he is t<) answer or demur within six calendar months after such service." (10th Jan., 1863 ; Ord. 7.) By order 91 " Service of a bill of complaint within the jurisdic- tion of the Court upon a corporation aggregate, is to be effected by a personal service of an office copy thereof, on the wai-den, reeve, mayor, or clerk, in case of a municipal corporation, or on the presi- dent, manager, or other head officer, or the cashier, treasurer, or sec- retary at the head office, or at any branch or agency in Ontario, or on any other pei"son discharging the like duties, in the case of any other corporation." Order 92 provides that " Where a foreign coi"poi*ation aggregate defendant to a bill of complaint, has no branch or agency in Ontario, service of the bill upon such corporation may be effected, out of the jurisdiction by personal service of an office copy thereof, on the warden, reeve, mayor, clerk, president, manager, or other head officer, or on the cashier, treasurer, or secretary of such corporation, or other person discharging the like duties, as in the case of service in On- tario." It has been held that, under these orders, the time for answering is not changed by the consolidated orders. The period is four weeks, nota calendar month.^ ■ . . A fui'eign company, having an office in Montreal and another in Toronto, an office copy bill, with an endorsement to answer in four weeks, served on the agent in Toroifto was held sufficient service.' The day on which an order that the plaintiff do give security for costs is sei^ved, and the time thenceforwaid, until and including the ilay on which such security is given, are not reckoned in the compu- tation of time allowed a ' If a defendant, using due diligence, is unable to put in his answer to a bill within the time allowed, the Judge, on sufficient cause being shown, raay, as often as he shall deem right, allow to such defend- ant such further time, and on such, if any, terms as to the Judge shall seem just.^ Applications for further time to answer are made by motion in Chambers or before the Deputy Registrar f and should be supported by affidavit, that due dilligence has been used, and that further time is necessary.^ If the defendant has not been interrogated, he or his solicitor must also swear, that he is advised and believes that it is necessary, for the purposes of his defence, that he should put in an answer, and that the application is not made for the purpose of delay. An application for further time to answer, will not be granted ex pa,rte : — Notice should be served on the plaintiff.* On a motion or leave to answer, notwithstanding an order pt^o confesso, the answer sought to be put on the files, should be produced to the Court duly sworn.^ The Court is loth to debar a defendant from answering when he shows he has a good defence in the merits, and that to refuse would or might amount to a denial of justice. Leave was granted to a defendant, to answer under such circumstances, were after considerable delay on his part, he being put on terms as to costs ; going to hearing and otherwise.* The notice of motion must be served on the solicitor for the plaintiff two clear days before the return thereof, exclusive of Sunday,^ and a copy of the bill, to be answered, must be produced at the hearing of the application. An affidavit in opposition to the application may be filed, and either party may use any affidavit previously filed. If the plaintiffs solicitor is not in attendance when the motion is called on, an ord^r may be made in his absence, on a case for further time being shown, and subject to the production of the office copy of an affidavit of service on him of the summons. 1 Sfc- Order 412. 2 Under some special circumstances the application should be made to the Court : Manehettir am Shejfletd Raiiwau Company v. Workthop Board of Health, 2 K. & J. 26. Orders 197, 36. 3 Broum \. Lee, 11 Beav. 102 : 12 Jur. 687 : in practice, however, further time ia usually irraDMd,oii the flnt application, without an affldaVit. A'Shanahan v. FairbanH, 1 Cham. R. 297. 6 Merrill v. EUU, 1 Cham R. 268. 6 RUehie v. QHbert, 8 Cham. R. 877 ^ . , „, 7 Ord. 28>, IL The tummou murt bo served befora two o'dook on a Satimbjr, anU bafon w o'ologlc on any other day : Ord. 410, 411. SWEARING AND FILIN(J ANSWERS. 4(1.') The order on the summons is drawn up in Chambers, oi- hy Ww [Deputy Registrar, and must l)e entered. The written consent of the ))laintift"s solicitor to fui-thertime being i/iven will be acted on at Chambers, without his attenllance ; but [m should be taken, in drawing up an order thereon, that the tei'ius uf the consent are strictly pursued; thus, a consent to further time li) answer," will not justify an order being drawn up for time " to Ijilead, answer, or demur."* The Judge is expressely emi)owered to impose terms, on an appli- ^iition for further time f and, as a general rule, the costs of the first |iplicatiou will be made costs in the cause, but those of subsequent applications will be ordered to V»e paid by the defendant. ♦ It loay be well here to notice Order 19G, which pre ]t«ken into consideration.'"' It the Court grants any further time to any defendant for plead- answeriug or demurring to the bilt, the j»laintiff"s right to movtt |f"i a decree is, in the meantime, suH|)en«le«l. I ne answer having been drawn, must be written, or printed, on l^l^r of ihe same size and description as that on which bills are '- oh'i'i. *""*"" "■ "'*'■<". It* M«Miv. 4; and .s«e Hunter v. .VoekuUlu, 2 Pliil. .SiO : U Jur. UM. ■ ^,Vj',"»« w> th'" iwlnt, ^i»/wto. ▼. Vinent, l6B«»v. r>75 ; aw ttHsu, /,«♦> v. JituU, 6Beav. 9«1, liii" fcLTl m .*• ^'*»»«o»». 1 Cham. R. S4. niJ%'*> *« "~v. 08. "^'•ndSorth MidlaM Hailwaif v. Hitd»u,^, ib. 6B, -« •»( ,■ Mswati 'in 466 ANUWEBS. 5 printed.^ Any HcheduleH or documeutu annexed to tlio answtr j must be written on paper of the same kind an the answer iU:lf '■ j Dates and sums occurring in the answer sliould be expressed bv figures instead of words,' • The Clerk of Records and Writs, or Deputy Registrar, may i-efus. to file an answer in which there is any knife erasure, oj- which iJ blotted so as to obliterate any wi»rd, or which is improperly written or so altered as to cause any material disfigurement ; or in w hidi there is any interlineation : unless the pei*son before whom the aii- 1 swer ia sworn duly authenticates such interlineation with his initials I in such manner as to show tljat it was made before the answer was I sworn, and so as to mark the extent of such interlineation.* I If, after the answer has been sworn, there is discoveredany defect I in the formal parts, such as the title or jurat, or any unauthenticateti I alteration or interlineation, the answ must be re-swoni, unless thr I plaintiff will consent that the answer be filed notwithstanding such I defect. The consent may be indorsed by the plaintiff or his solicit^i I on the answer itself; or an order of coui-se, may, with his consent I be obtained on a motion, of course allowing the answer to be tiled I but the defect must be specified in the consent or order*^ I As answei-s to be tiled in England are sometimes reqiiii-ed t«» l» ] sworn '-.ere, it may be mentioned that, where the answer i.s taken iiil any place in Foreign parts under the dominion of Her Majesty/' it I may be sworn before any judge. Court, notary public, or |jei"Siiii| legally authorised to administer oaths in such country or place r»'> ■ pectively ; and the Court of Chancery will take judicial notice <>il the seal or signature of such judge, Court, notary public, or |)ers■ V. 0. w. . ,, .■ 2 WhtUe ▼. Griflfhf, nbi. sup.; under special oiroumstanoes, Rchedules not so written were Hi' «"■ to be filed : S. C. ■ 8 Ord. 66. 4 Ante. ■ * 5 BraithwaiteVPr. 48; butseePtZMnfffonv. ffttwufortA, 1 Y. ftC. Ex. 61!. ■ e For a iist of these places, see Braithwaite's Oaths in Chan. 18—20. ■ 7 IB -V 16 Vic. C. 86, 9. 22. This ssction ia retrospective : Battim4tn t. fnnk, 3 [>p M. A n s' ""iB see Haggett v. /ni/T, A !> O. M. & M. 010 : IJur.N. .S. 4». ■ BraithwatU's Pr. 84S, ■ M SWEARING AND FFLINO ANSWERS. +67 IhumI comer of the end of the answer. It may lie writt*»n on «'itlit'r 4(ip of the page, or on the margin ; hnt not on a page n]M>n whicli no |(art of the statementH in the answer appeaix If there niv many iltfeiidantH who are sworn tojUfeiher, one jurat is sufficient. If the iltt'eiKlantH are sworn at different times, there nniKt l»e .sef>arate juratM f;»r eacli defendant, or eacli set of defemlants swearing. Tht- jurat must correctly express the time when, and the place where the aiiHwer is sworn.' Tlu^ defendant must sign his nnme or put his marit at the side of the jurat : not underneath it;' and the ))erHon I fore whom tlie answer is .swoni nnist sign his name at the foot thereof Any schedules should he signed, lM)th hy the iiefendnnt uulthi* pei-son iM'forc whom the answer is sworn.*' The answer of a person tj^ititled to the priviiegi- of jieerage is taken iMion his protiistation of honoin* : that of a ci»r]M)ration aggregate, uiider tiieir conunon seal ; that of a (^.uaker, Mumvian, ex-<^uaker, ex-Moravian, or Separatist, upon liis .solemn affirmation. If the defendant he hlind, or a mavksman, the answer nnist be first uiily, distinctly, and audibly read over to hin», either by the peraon liefore whom it is swoii. or .some other person : in the fii-st case, it must l»e expressed in the jurat that the answer was so read over, aiitithat the siguatuie or mark of the defemhint whs affixed in the jireseiice of the jtoi^son taking the answir; in the second case, such "ther |)eraon must atte«»t the signatun' or mark, and nuist be first >W(»rn that he has so read over the answer, aud that the signature or mark was made in his presence ; and this must be expl^'S8ed in the jiimt^ In thec^use of a foieigner. not sufficiently ver.sed in the English lanfjuage i,n answer in that tongue, and desiring to answer in a for- 'iKQ language, an order, of eoui-se to do so must l»e obtained, on mo- tion. The answer must Ite «.'ngros.sed on pap* r, in tlie fortiign lan- ;,'uage; and the defendant, together with an inteqjreter, must then 'ittftnd h^'forea iH'rsou authf»rised to administer oaths in Chancery : ilif mterprpter is fii-st sworn in Knglish that he well understands i /itrf Onler 130. -^ iniltrKon V. .Srcn/A,., , ll Jtir. 10(1.1. ' '^ Lnwlon V. Loimoii, 1 Cham. K. <0. Tin; <.iiii»«!oii in llie Jurat «i; the ii;'iii «i Vac i!e|K •>■ ,il vitlateH the affl.la\ it : Hii-kfy v. Htruii, 1 Chain. R. 2tt3. "|« "••fUtioii UMv lie writuu ne»r the jurat: Bnithw»lt«'!< Hr, SWO, :.W; ami »«. M'.«...4 > "i.rtw, 2 Ham, BSfi : 7 Jur. nc. ^; Ml- "W m;s ANSWERS. 4 M •mm tho foreign lRfipfiia;i:<'. and tliat he will truly interpret the oath alvMit to be administered to the defendant ; and the ordinary oath is next adininiHtered trder.2 > A foreigner may also answer in English, although ignorant of that language. No order to do so is necessary ; but where the defendant is not sufficiently versed in English to understand tlie language ot the answer, anted where the defendant is deaf, or deal and dumb, q,nd in every like case.* In a case, however, whicl- occurred in the 18th Geo. II. ("1745), a different course appears to have been, adojitcd : for there the Court, on motion (the defendaul 1 SimmoniU v. DuBarre, 3 Bro. C. C. 263 ; Lord Belmore t. Andwton, 4 Brn. e. C. rtfl. 2 Bralthwnltcii IT. 46. ,, „^. :i St. KafhnrlM't Dock Cotnpany v. Manttgu, 1 Con. M : 8 Jur. 287 ; Bniitliwiiiit's IT *:>, 3»». 4 RfynoUl* V. JonfH, Trin Term, ISV ; Bralthwaite's I'r. ;t«:i, .SOS. ' \ SWKAUINti AM) KII,1N<: ANsWRUS. \ U btiiip (leaf, and incapable of giving inHtructi«)ns tor his aiiHworj, ordenil a comraisaion tbi- taking the answer to issue in the old way with the bill annexed, in order that the commissioners themselvcM might endeavour to take the answer.^ It is an universal prlnciplf, iu ull ('(tint^i that any irregularity in ajurfit may, unless ('X]»rcs!sly waived, be oljected to in any stage of a cause. This does not depend upon any objection which the pai*ties in a particular cause may waive, but upon i.he general rule that th«' document itself shall not he brought forward at all, if in any respect ubjectionable with reference to the rules of the Court ;2 and there- fore a motion to take an answer off the file on the ground of such irregularity was allowed, notwithstanding the plaintiff had taken an office copy of the answer.'* If, by any ac ndent, the jurat is can- celled, the answer must be resworn, and a nt w jurat added.* Where the friends of an infant wish to defend the suit on his Ix-half, an order appointing a guardian ad litem may, as we have seen,^ be obtained on motion of course ; and where the defence of the infant is by an answer or plea reijuiring to be u])<>n oath, the |ilea or answer must be sworn to by the guardian, uidess an ortler has been obtained to take it without oath. The guardian, howcvei'. itnly sweai's to his belief in the truth of the defence of the infant." We have before seen, that a pei-son who has been found a lunati<* t>y in([uisition, ans Wei's by his connnittee, and that, in such case, it is not necessary that there should be any order api)ointing a guar- 'lian, unless there be a conflict of interest between the committee and the lunatic : in which ea.se, a guardian ad litem should Ix* ftppointed.^ A person of w«^»ak or unsound mind, not so found by imiuisition, answei-s by his guardian, who is appointetl in the same mauuer as the guardian ad litem of an infant defendant ;^ and, as in the case of infants, the guai'dian only swears to his belief in the truth of the defence, where an oath is required. ' With respect to married women, we have before seen," that where 1 Onmry v. Weaver, i Mad. Prao. 868. : {5*"ff«on V. HitiHi'Jorth, 1 Y A C. fcx. «12, 616. ' '*•«•, md see ante, * *ttorfuy.Qenerai \. Hudimn,9 Hare, App. 63: S. C. »wnu Attoriuiy-General v. //«»./..•«)(( i . Jut. 806 , and Hee Atttyniey-iJeMral v. Doniiinfftnn HotpUal, 17 .Tur. 20«, V. C. W. ' » fcilthwsite'H Pr. 898. 7 ^iite. »■*"»«; BraithwRlte'8 Pr. 398, n. » Ante. ..' I k I mr 470 ANSWKRS. <« •II < r a husbaiul and wife are ilefeiidautN to a liill, lieitlier of theui can regularly put in an anHwer without tlic other, except under -u ordn granted for that pui-pose. Where, however, the wife is defondaw to a bill tiled by her husbanil,' or, being judicially Heparatod, oi, having obtained a protection order, is .sued us & /cine nolei' no oruei is requisite. Where she answei"s se])arately, under an order, Im time for answering runs from tlie date of the order.'* Where a married woman is an infant, her answer cannot l>e taken either jointly or .separatoly, until a guardian han l>een assigned t' her.* An answer is tiled in the Record and Writ ('lerk'-s or Dpjiutv Registrar's Otfiee, in the same manner as an atfidavit; and Ih m considered of rect»rd until tiled. The nanu' and place of business or residence, as the caso may k of the .solicitor or i»arty tiling the answer, and his address foi- service, if any, must Ik.* iiidoi-sed thereon, as in the ease of other pleadings and proceedings.'' Unless the plaintiti'^has taken .some step which prevents its i-bcep tion, an answei- will be tiled by the Record and Writ Clerk nr I Deputy Registrar, after the expiration of the time for putting it iu. ■*vhere it is put in by a defendant who has been required to auswer the bill, whether original or amended, or where, the plaintift" iiaviog amended hi.s bill without requiring an answer, it is put iu by a defendant who has already answered the bill. In all otliov ca-ses an answer will not \k' iticeived, after the expiration of the time within which it ought to have been put in, except under tht . authority of an order: which mu.st be produced at the time tlitj jinswer is jiresented for tiling. Such order must be appUedforbv notice of motion. The cei-titieate of the Record and Writ Clerk or Deputy Registrai | in conclusive evidence as to the time at which the answer was file<1 < hv or -, \\ HWKAHfNfl AND FILINr, ANSWKRS. 471 ID answer, demurrer or rtiplication to Ite tiled, he is to give notice thereof oil the Maine day, to the solicitor of the adveroe party or to the ari verse party himself if he act in person." Notwithstanding this .trHer recpiirinc,' notice U) be served of filing any pleading, a |iarty caunoi move to take such pleadings off the files where no notice of tiling has been served.' • The omission to give due notice <»f having tiled the answer will ttot, however, render the latter inoperative ; thus it will not deprive the defendant of his right to move to dismiss the bill for want of prDsecution, at the expiration of thtj period allowed for that pur- |v»se, from the date of filing the answer.^ It would seem that, in such a <^ase, the time allowed the plaintiff for taking the next 8te]i in the cause will, on his motion, be extended, so as to give him the benefit of the time he would otherwise have lost in consequence of the omission.'* Where a defendant's .solicitor files an answer, but neglects to give notice thereof, the Court will not order it to be taken ofi' the files, kt will extend to the plaintiff the time for taking the next step in the cause, by such time as has been lost by the neglect in giving notice.* On receiving notice of the filing of the answer, the plaintiti' should demand in writing, from the defendant's solicitor, or the defendant hiirwelf if acting in person, a copy of it. • Order 548 provides tliat " A party requiring a copy of any plead- ing or affidavit, is to make a written application 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 where the party has no solicitor, then to the party himself." And order 549, that " Where an application is made for a copy of any pleading or affidavit, it is to be delivered within forty-eight hours from the time of the demand ; and any fiirther time which may elapse before the delivery, is not to be computed against the party demanding the same." 1 McDottgall v. BeU, 9 U. C. L. J. 188. - Jom V. Jonet, 1 Jur. N. 8. 868 : 8 W. R. 888, V. C. S. ; and see Lorn v. Willitmu, 12 Beav. 482, M4. 3 bright V. AitgkjO Hare, 107, 109 : Lord SuMeld v. Bond, 10 Beav. Ud, 163 ; Low* v. WUliattu, wJuiiM V. Joneii, iUfitup.; Lloyd r. Solieitori' Life Attunmee Company, 8 W.E. 848, V. C. w.; a^, however, Mattheioa ▼, Chiehuter, 6 Hare, 207, 209 : overruled on appeal, 11 Jur. V,L. C. < Ptrktr r.Brumt, 3 Uh. R. 864. ^72 answkkm. The order t<» t'uriiisli ortice copies of pleatiiiigN iis iiii)ifratiM huh the Court will cntorce coiupliance with it. Where a ileteiidaut luii aiiHwered, an4 beeu deiiiaiided, hut )iheen turnished, the defendant afterwards moved to diHniiNhtlu bill. The order was refused with costH. The plainti^l' then iiiovnl that the defendant l>e ordered to furninh the copy of aoHwer, ami the motion was j^ranted with costH.' If office copioM of affidavit- are demanded, it \h im])erativc on the partieH filing th<; affidavits i' fcirnish them, and the costs of any delay oeoaHioned hy his ri "t floing so, falls on the party making such default.'- An HiiHwer to an amended bill, is in every reN[H;ct similar to, ati>l \H considered as part of the answer to the original bill ; and if a i defendant, in an answer to an amended bill, refloats any thin; contained in a former answer, the repetition, unless it varies thi defence in point of substance, or is otherwise necessary or fxpedieiii will be considered as impertinent; and the J he was permitted to amend it by stating the close to contain seven- teen acres, even though issue had been joined ;* so where, owing t'l the mistake of the engrossing clerk, the words "A«r shares" had been int/oduced into an answer instead of " ten shares," the answer wasl T Tnttf-n w. Mointym, 'iChiun. R.iO. . ' 2 BurrowBg t. flatnejft ^ Chain. R. 186. S See ante. 4 ftfrney v. Chamber*, niiiib. 248 ; but iie« Mon(a him, tiled a bill U) have the agreement |MMformed, to which the clefendant put in ail answer confesmng the agreement, and su> litti?',; to hr .e it pertbrmed, but, atlerwards discovering that the estate v as .»/ several thousand pounas value, he applied for leave to take hsA answer ofl the HI ;vnd to put in another, leave was granted." TIhj Court has also {jerinitted a defendant to amend an answer, by limiting the aflmiiwion of assets C(mtained therein, where it was clearly cstabli^li- t'd that such admission had been made by mistake, and through the carelcRsnesH of the solicitor's clerk J » The Court, however has never permitted amendments of this nature, where the application has been made merely <>u the ground that the defendant, at the time he put in his answer, was acting under a mistake in jioint of law ; and not on the gi-ound of a fatit having been incorrectly stated. Thus, where a defendant, who was an executor, had admitted himself accountable for the sui-plus, anrl it was aftoi-wards found that the circumstances of the case were xach that he would have been entitled to it himself, permission to amend was refused.* So, where a defendant had, by his an.swer. admitted the receipt of a sum of money from his father by way of ivlvancement, and refused to bring it into hotchjjot, he was not per- •) SrU**** */ 0 1 Kq. Ca. Ab. 29, pi. 4. « AMm v. Payman, 1 Dick. 88. 1 Wy.T- Crump, *. 86 : and lee Cooper v, ffttm « mmiu V. Pom/, \ p. Wm«. 208; see, h«>\vev( r, UttuxtUr Burial Board, l H. ft M. SBO. Brmrn v. Lnte, 1 De O. 4c 8. 144. 474 ANSWERS. mitted to amend his anHwer m to the admistsion, although he svore that he made it under a mistake as to the law of the case.^ 4 5 •*•« The Couit will also rtifuse to permit an amendment of an answer, after an indictment for perjury jjreferred or threatened even though it consider it to l»e clear that the defendant did not intend to perjure himself, and had no interest in so doing. '^ From the above cases it appears, that it was formerly the general practice of the Court, if it saw a sufficient ground for so doing, to permit the defendant to amend his answer. Lord Thurlow how- ever, as it seems, intnjduced a better course in cases of mistake : not taking the answer off the tile, but pennitting a sort of supple- mental answer to be filed, and by that course having to the parties the effect of what has been sworn before, with the explanation given by the supplemental answer.^ This practice has been since adopted, in all cases in which it is wished to correct a mistake in an answer as to a matter of fact; ' and it is not confined to cases of mistake only, but has been extend- ed to other analogous cases : as where a defendant, at the time of putting in his original answer, was ignorant of a particular circum- stance, he has been permitted to intioduce that circumstance by supplemental answer,^ even though the information was obtained by a violation of professional confidence.^ And where a defendant has wished to state a fact in his original answer, but had been in- duced to leave it out by the mistaken advice of his solicitn- '• 1 Pearee ▼. Grove, Amb. 65: 3 Atk. 622. 2 Earl Vermy v. AVaonamara, I Bro. 0. C. 4i» ; Phe/ps v. Prothern, 2 I)c 0. 5: S. 274. S Per Lord Eldon, In Bolder v. Bai\k of England, 10 Ves. 285 ; and see Jenningt v. MertmColU}: 8 Ves. 70 ; WelU v. Wood, 10 Ves. 401 ; Plulps v. Prothero, 2 De O. A 8. 274 : 13 .lur. 7M. 4 Strange v. CoUinii, 2 V. & B. 163, 167; Taylor t. Obee.S Pn 88; Ridley \' Ofree, Wightw «: SukUIow v. Day, 2 Coll. 183 : 9 Jur, 806 : Bell v. Dunmore, 7 Beav. 283, i87 ; Coope' t. Uttoxeter Burial Board, 1 H. & W. '" j Jackmnw Parish, 1 Sim. 506, 600 ; Tidtwell v. Bowyer, 7 81m. 64 ; aao.ConH v. Barr, 2 M«r. i>, 60 ; Frankland v. Owrend, 9 Sim. 365 : 2 Jur. 886 ; FvHon v. Oilfnore, 8 B> av. 164; » J«f- '■ 1 Phil. 622, .'>:8 : 9 Jur. 265 ; Chndwick v. Turner, 34 L, J. Ch. « , M. R. ti Raineoeky. Young, 10 Sim. 122. .- SaUv. Punter, 4 8\m. 474, 488. 8 Stampi V. BirmnghamandStour FaUey flailway Company, 2 PhU, b73, 677 -:3 AMENDING ANSWERS — SUPPLEMENTAL ANSWERS. 47o A joint answer having been put in by a corporation under the ciii-porate seal, and by their officer under oath, the defendants after- Iwaids appli'id for leave to lile a supplemental answer, alleging a luiiterial mistake in tlu; original answer : and the Court granted leave to the corporation to file the supplemental answer on terms, I hut refused such leave to the officer, his exi)laiiation of the alleged iiistake being unsatisfactoiy.^ A defendant tiled his answer in [October 1857, and in August 1858 plaintiff filed a replication. An application by the defendant in February 1850 to be allowed to 3 a supplemental answer, for the puqiose of setting uj) certain I liiouuds of defence omitted from, but not in anywise contradicting the original answer, was granted on payment of costs, and the defend- auts' undei-takiug to go to a hearing at the liext term.* A supple- mental answer was allowed to be filed upon terms, where new I matter has been discovered shice the former answer was filed ; the application being accounted for.3 A supplemental answ er will be allowed to be filed to correct an eiror in the original answer, or state facts discovered since answer filed, although some delay has taken place since the discovery of the new matter, and all the more readily it' the plaintift' has himself not been urgent in pressing the cause.* Although the Court will, in cases of mistake, or other cases of liiat description, permit a defendant to coiTect his answer by a Mippieinental answer, it always does so with gi-eat dilficulty, where ail addition is to be put upon the record piejudical to tlie plaintiff; tliuugh it will be inclined to yield to the application, if the object is to remove out of the plaintiff's way the effect of a denial, or to give him the benefit of a material admission.^ Therefore, where the application was made for the purpose of enabling the defendant to raise the Statute of Limitations as a defence, leave to file a sup- plemental answer was refused f and where the defendant had, by his original answer to a bill for the specific performance of a con- tiact, admitted that he took possession of the whole property in liuiTjuance of the contract, but afterwards applied for leave to put in a supplemental answer to limit the admission to part of the 1 ^akkv. beBUtquiere, 12 Grunt, 107, and sec Tuimncc v Crooks, 1 Grant. E. it A. R. 230. ; ^rrr^v Moitmi^l Cham. R. 26 ; and see Weir v. Hathieaon, \ Cham. R. 238. llniwn V. McDonald, 18 Grant. 159. KIdun. In this caHe, as well m in Strange v. ColUiu.ih. lect 2 3 MeKmauii. v. MeDoiM/d, 2 Cham. R. 23. 4 Worm V lloir 2 Chiun. R. Ill ; and see JfcA-." lis?™* '' J''^««l/, 2 V & B. 256; Lord Klt.«... ... w.m ««c, «, -«.. ». ... ww..,v» •• ■^.'""~, ~. iw, appears to have been of opinion, that a supplemental answer ought not to have any effect upon Ml indictment for perjury upon the oriifinal answer ; but see Ktng v. Carr, 1 Sid. 4W : 2 a*D. 616. » Ptnital V. Caney^ u Jur. 473, V. C, K, B, 4i I t 4.7« ANSWERS. i U v- «» premlHeR only, upon affidavitH of mistake, the motion was refused! unless the defeniiant would state upon oath, that when he swore the original answer, he meant to swear in the sense in which he, I the application, desired to be permitted to swear to it.^ Order 127 provides that " The Court may permit a supplementi answer to *be filed at any period of tlie suit, for the purpose putting new matter in issue, in furtlitiance of justice, and upoJ such teiins as may seem proper." And order 128 that !'Leavetofile( supplemental answer is to be applied for by motion. The notice motion is to set forth the proposed answer, and state the ground upon which the indulgence is asked : and it must be supported bjj such evidence as satisfies the Court of the propriety of permittii the supplemental answer to be filed, under all the circumstance having loference to the subject matter of the answer and the st of the cause in which the application is made." In a suit of fon closure after the cause had been at issue for nioie than three yean but no hearing or examination of witnesses had ^ taken place, thJ Judge in Chambera allowed the personal representative of a ceased party to the cause, who has purchased from the luortgagorj and against whom the bill had been taken ^?^'o confesso t<» put in anj answer, setting up what, in the opinion of the learned judge, was meritorious defence.* Where service has been effected on an ageiil and it can be shown that the time allowed for answering is insuffij cient to enable him to communicate with liis principal and to jjej in the answer, on an affidavit of a good defence on the merits, defendant will be granted leave to file his answer, although order p)*o confesao has been taken.* An application for leave to file a supplemental answer is \mi upon motion. The notice of motion must be served on the plaintiti and must specify the facts intended to be stated in the propose supplemental answer, and be supported by affidavit verifying thd tnith of the proposed supplemental answer, specifically stating tha facts intended to be placed on the record,* and showing a sufficient reason why they were not introduced into the original answer 1 Livesey ▼. WiUon^hV St B, 140 ; nee a,\»o Ofeenieood t. Atkifisim, i Sim. 54, 04 'i AnonymouH, 13 Grant. 51. H Irwin y. Laneaskire Inntranee Company, a Cbani. R. 29S. .. > , i 4 Curling ▼. MarquU Toumshtnd, 19 Ves. e28, 681 ; Smith v. Hartley, 5 Ben. . 432 : H«*""^ '\ 1 HoUit, a Beav. 236 ; FtUton v. OUmore, 8 Beav. 154, 9 Jur. 1 : 1 Phil. 522, 627 : .lur. Z«> !i Tennant v. Wilmnorv, 2 Anst,, 862 ; firnff v. Carter, 1 V. & .J. Va.; I'if,limre v ftkifw^, Sim. 56S. '1 AMENDINO ANSWERS — SUPPLEMENTAL ANSWERS. 477 IfliP (Ipfendant munt also, it seems, produce a full copy of the intend- I supplemental aiiswer,* for the inspectfon of the plaintiff* A motion being made on notice for leave to file a supplemental swer, Cliurten v. Fretven 1. S. R. Eq., cases 238 was referred to Irhere a similar application in Chambers was refused on the giound hat the motion should be made in Coui-t. The question first to be lecided was, whether the old practice ot applying in Chambers in hese cases (Gherrij v. Morton U. C. Cham. R. 25) has not oeen verruled by English tlecisions. The secretary, after consulting irith the judges, held that the motion must be V)rought on in Court, mdeithe authority of Clinrton v. Frewen!^ In making an application for leave to file a supplemental answer, he defendant must also make a case, shewing that justice requires hat he should be permitted to alter the defence already on record ; ^nd even where defendant applied for leave to file a supplemental swev for the purpose of making an admission in favor of the blaiutiff, upon an affidavit that, fi'om certain circumstances which |iad since occurred, he was satisfied he ought to have admitted a fact irhich he had denied, Lord Eldon held, that the affidavit ought to |iave stated that, at the time of putting in the answer the defend- ut did not know the circuinstances upcm which he made the application, or any other circumstances u])on which he ought to jiave stated the fact otherwise.* Where a defendant has obtained permission to file a supplemental nswer, for the purpc»se of correcting a mistake in his original nswer, he must confine a supplemental answer strictly to the eoiTec- fion of the mistake sworn to. If he goes beyond that, and makes ny other alteration in the case than what arises from the correction p such mistake, his supplemental answer will be taken oft* the file. •"' Where a defendant has, at the time of putting in his original gnawer, mistaken facts, he cannot contravene his own admission in ny other way than by moving to correct his answer, either hy nendment or supplemental answer. He cannot do hu by filing a I I ?;" *• t>^wnore, 7 Beav. 283 ; h\ilU>n v. Gtlmore, uhi kujj. ■ tMmi V. aUmore, u6i mp. \\itti>rnty.Venf,viv. Cagey, iCUKm.H. •■ 'Wiij, V. PoH»»M, 2 V. & B. 108. 1(17. » • ■ I ""■*/-•» V. JtiHln; -1 \es. S. 533, ,■.:!:. , .■ V I M 478 ANSWERS. I i i: ■'4 5 There appears to be no particular limit to the time within whichl an application for leave to lile a supplemental answer, to con-ect i mistake in an original answer, will be complied with : provided cause is in such a static that the plaintiff may be placed in the samel situation that he would have been in, had the answer been coirect at first. Accordingly, wci find several instances in the books iii which .such applications have been granted after replication,^ and even after the cause has been set down, and in the paper for hearing- Whore, however, the plaintiff cannot be placed in the same situation that he wouhl have been in, had the defence been stated on the record in due time, the Court will not permit a supplemental answer to filed. Therefore, where, after the cause had been set down forhcj ing, an application wa- made for leave to file a supplemental ansvf which set up a totally new defence, while it admitted the facts tA stated in the original answer to be true, the Court refused tlij motion with costs.^ ' Order 129 provides that " At the hearing of a cause, the Coup may permit a defendant to introduce new matter of defence supplemental answer, under oath or othei'wise, in the same raanneJ as the Court permits an amendment of the bill at the hearing." But although the rule of practice now is, that, in cases of mistaicJ iu the statement oi' admissions in an answer, or in analogous caseJ the defendant will not be pennitted to amend his answer, but musi apply for leave to file a supplemental answer, for the purpose ol correcting the mistake, the old course of amending the answer, inaij still be pursued in cases of error or mistake in matters of fonn. Thu in White v. Godbold* where the title of an answer was defective! a motion by the defendant to take it oft' the file and amend aii(| reswear it, was granted ; and so where, in the title of an answer, tiij name of the plaintifi' was mistaken, a similar order was made The addition of the name of a party omitted in the title has alsi been permitted." Where, however, an anwer had been prepareij 1 Jaekiionv. Parish, 1 Sim. 505. 501) ; Pnineochv. Yimng, 1« Sim. 122; Par*m» v. ffardy, 2U' Ch 400, V.C. T. 2 Pvltonv. Oilmare.S Beav. 164, 158: .lur. 1 : 1 Pliil. r.i2, .525, 530: ft 'ur. 266 ; Chadmti tSimer, 84 L. J. Cli. 62, M. R. 3 Mcbmtgal v. Purn'er, 4 Russ. 480. 4 1 Mad. 260 ; the order wiks, however, made by uonNeiit in this case. . • fi Peaeoek v. DvAe of Bedford, 1 V. & R. 186 : Woodmr v. Crtmnpton, 1 Fowl. Ex. Pr.-W; iM«J Mytton,ih. 389; Keen v. Stnn/nu, ih.; Raltheth v. Squire, 10 Hare, App. 8 ; but lee Af;/' MaiUell, 4 Heav. 485 : S. 0. nam. Fry Y. Mart A, 5 Jur, 1194. ■ 8 irWjjAf V, Crtmpftrf/. IFowl, Ex, Pr, .-IB!*. ... AMENDING ANSWERS — SUPPLEMENTAL ANSWERS. 479 tui ceitain defendants, but only sworn to by some of them, it was directed to be received as the answer of those who. had sworn it, without striking out the names of those who had not.^ A defenrl- ant has, also, been pennitted to add the schedules referred to in his answer, where they liad been accidentally omitted ; ^ and in several cases, where verbal inaccuracies have crept into answers, they have been ordered, at the bearing, to be struck out.'* In like manner, where, in filing an answer, one skin had, by accident, been omitted, leave was given to the defendant to take it off the file, for the pur- pose of rectifying the omission, upon condition, however, of his re- swearmg it immediately.* A similar order was made, in a cas*' where the defendant had omitted to sign some of the skins ;^ and, ill geneml, the (Jourt will not permit such amendments as those above mentioned, without making it pai-t of the order that the answer shall be resworn, or, in case of a })eer, again attested upon hnnour.* The Couit has also permitted an answer to be amended, by adding to the record the name of -the counsel who signed the draft; .-. . '. . , An order to amend an answer must state the loarticular amend- ment to be made ; and may, by consent, be obtained on motion, as of course.** If the plaintiff will not consent, it seems that a special application must be inade to the Court, on motion of which notice must be given, specifying the proposed amendment.** m t»! The amendment will be made by the Clerk of Records and Writs, nr Deputy Registrar, on the draft of the answci-, as amended, toge- i ther with the order to amend, being loft with liim for that purpose, Any copies of the answer which may have been taken .should also be left, in order that they may be altered, so as to agree with the amended answer. 1® !» 1 fioM V. Rmd,'iV. k B. 310 : and see Lyotvti v. Read. Braithwaite's Pr. 51 ; see also ante '*7.«»»-r»iM»M»», IFowl, to Pr. 389. ' 'WKv. Sota.l Anst. 332. 3.W, 341 : and see ./«•«« Coflemt v. Gibbs I V * (\ E\ 14 . W' < Brwautg V. Slomap, G Law J. N. S. Ex. Eq. 48 : I Jur. S8. . - '1^1 Moneaiterv. BmithwaiU\Yo\mge,382. '■ •■! , -; .■-■>-■> ^Jjacotky. Duke 0/ Bedford, I y. icBlk. ■ 8 te^u^-. ^^^^' ^ ^J*- ^^ • WhUehead v. Cmiliffe, 2 Y. \- O. Ex. 3 ; ante. I °™">wlte'a Pr. 312 ; and see Wratf a Pr. 19 : HInde. 206. Vii^Zu^^'^'lK ^'^'^"■"" "^ ^'orcemr, 2 Phil. 3: 1 C. P. Coop.t. Cott. 18. ^ *: 4S() ANSWERS. m ■ «*ir,e3^ SECTION V. — Takhuf A'oawers o^ tlie File If any irregularity has occurred, either in the frame or form of an answer, or in the taking or filing of it, the plaintiff may take advan- tage of such irregularity, by moving to take the answoi* off the lile. Instances in which such motions may be made have l^en before pointed out.^ If, however, the plaintiff intends to apply to the Court to take an answer off the file for irregularity, he must do so before he accepts the answer : otherwise, he will have waived hk right to make the application ;^ unless in the case of an irregularity in the jurat, or of an omission of the oath or attestation of honor of the defendant, without an order to warrant such omission : in which cases, as we have seen, there must be an express waiver of the irregularity.'^ The Court has sometimes also, as before stated,"* allowed an answer to be taken off the file on an application c i the part of the defendant, for the purpose of enabling him to correct a mistake in its form ;' but it does so only, as we have seen, upon condition that the defendant shall immediately cause the correction to be niadr and reswear and file the answer ; and it will never make such m order where the plaintiff can be at all prejudiced by it. Where an answer is evidently, on the face of it, evasive, tiic Court will order it to be taken ott* the file.*^ The application to take an evasive answer off the file is made bv motion, of which notice must be given to the defendant. The de- fendant will be ordered to pay the costs of the motion a.nd the costs of a copy of the document filed as the answer, and - .^fc" •ost:; properly incurred by the plaintiflT in consequence of i'le i ".ig of the evasive answer.*^ . Lastly, it may be here observed, that the Court will, upon the consent of all parties, order pleadings, affidavits, and other docu- 1 Ante ; aiifl see Frj/ V, Mantell, 4Beav. 48r. : S. C. iiom. Fnj v. Martel, a Jur. IIM ; Rai»trMi Elmoarih. 12 Jur. 782, V. C. K. B.; Unerpoo/ v. Chimtetidall, 14 Jur Sei. V. C. E. 2 Taking an office bopy of the answer, does not seem to be an acceptance for this purpose: Ft\)i Mantell, ubi sup.; and see Wooilwarit v. Twimaine, 9 Slin 301 ; Attorney-Oeneml v. ShMd, u Bear. 441, 446: 13 Jur. 330. 3 Ante. 4 Ante. [, Lyitch V. Leceitie, 1 Hare, 626, 031 : 7 Jur. So ; Head v. Barton, 3 K. & J. ICC : 3 Jur. N. S. 26J "see also Tmnkin \. [jethbndge, « Ves. 179 ; Smith v. Serie, 14 Ves. 415 ; Brook* v. PvHun, 1 >. & C. (!. C. 278 ; see cunlru, Mar»h v. Hunter. 3 Ma«l. 437 ; Whitt v. Uowflnl, 2 DeO. *S. 22- 6 tieail V. Barttii, 3 ly. iV J, Vlil ; :! Jur. X. S. -M'i. JOINDER OF SEVERAL DBFENCKS. 481 ments to be taken off the file, where they contain matter which is I scandalous, oi* which it is desirable should not remain recorded.^ Filing a replication waives all irregularities in any answer previ- lously filed, but does not waive scandal therein. Where an answer lis, in the opinion of the Court, jnnma facie scandalous on its face, tiie onus rests with the party filing it to show its relevancy to the question raised by the bill ; in default of this being done the answer was ordered to be taken off the files for scandal, with costs,^ T < ' CHAPTER XIV THE JOINDER OF SEVERAL DEFENCES. All or any of the several modes of defence before enumerated may I be joined in the defence to a bill ; thus a defendant may demur to lone part of the bill, answer to another, and disclaim as to another. ' IA defendant may also, as we have seen, put in separate and distinct Idemurrei's to separate and distinct parts of the same bill. * jli^'hen this species of defence is adopted, the same rules jwhich have been before laid down with reference to each mode lof defence when adopted singly, must be observed when the Isame modes of defence are resorted to collectively. Lord Redes- Idale lays it down, that " all these defences must clearly refer to jseparate and distinct parts of the bill ; for a defendant cannot |»n8wer to any part to which he has demurred. Nor can the defendant, by answer, claim what, by disclaimer, he has declared he has no right to. An answer will, therefore, overrule a de- iurrer ; and if a disclaimer and answer are inconsistent, the matter be taken most strongly against the defendant upon the dis- aimer,"^ In all cases coming within these rules, the principles above quot- from Lord Redesdale apply ; and, in addition thereto, it is to be temarked that, where a defendant adopts this mode of defence, not Ny should each defence in words be applicable to the distinot 'I'a^lor, 6 Beav. ■ (peace v. ICemiek ' Tnmaijuy Tremaine, i Vem. 189; IValton v. Broadbent, 3 Hare, 334; Jewin v. Taylor, 6 "o; CUftoH V. Bentall, 9 Beav. 105; Barritt v. Ttdnvell, 7 V. R. 85, V. C. K.; Makepi Romtux, 8 W. R. 687, V. C. K. ; see also Goddard v. Parr, a< L. J. Ch. 783. V. C. K ; fc I , Z/"*^*' " W. R 33S. V. C. W. 1 3 W. Red. 3,9. 4 AnU. 5 U. Red. 319. 7 ■a. it I- 482 JOINDER OF SEVERAL DEFENCES, part of the bill to which i': professes to apply, but that it should also ill substance, relate peculiarly to that part of the bill which it j)i>| fesses to cover ; so that a defence, in words applicable to })art of al bill only, but in reality api)li cable to the whole bill, is not good, aiidf cannot stand in conjunction with another distinct defence applicalilej and applied to another distinct [)art of the bill.^ Where, tliereforeJ a defendant put in a johit demurrer and plea, each of which weDtl to the whole bill, the demurrer was overruled f' and whereadefen-j dant, as to pai't of a bill, put in a plea that there was no outstanding term, and a demurrer as to the rest on the ground that the plaintiti had no title, Lord Langdale, M. R., although he held the plea to good, was of opinion that the demurrer, being applicable to tli^ whole bill, and consequently that part of it which was covered b\| the plea, was bad.^ When a demurrer is to part only of the bill, and is accompani^ by an answer to the remainder, it should be entitled " The demurreJ of A . B., the above-named defendant, to part of the bill, and thl answer of the said defendant to the remainder of the bill of complainj of the above-named plaintiff."* Where a defence of this nature has been put in, the first thing to dispose of the demurrer, and for this purpose, the demurrer mu^ be set down for argument in the usual way.^ The plaintiff niu^ however, be careful not to amend his bill, before the demurrer h^ been disposed of : otherwise, it will be held sufficient.*^ The proper course to be pursued, where a partial demurrer hj been allowed to a bill, appears to be, to amend the bill, either 1 striking out the part demurred to, or by making such alteration i the bill as will obviate the ground of demurrer. Thus, afterapartij demurrer, ore tenus, for want of parties, has been allowed, the may be amended by adding the necessary parties, or stating thej to be out of the jurisdiction of the Court.^ ^ . I CroKch V. Hickin, i Keen, 385, 389. . a Lowndes v. Gamett &> MoseUy Gold Mining Company, 3 J. & H. 282 : 8 Jur. N. S. 694 ; «1 Manselly. Feency, 2 J. & H. 313. , i 3 Crouch V. Hickin, ubi sup. His Lordship, however, allowed a demurrer ore tenus, tor »«i^ equity, to that part of the bill which was not covered by the plea. 4 Tomlinson v. Swinnerton, i Keen, 9, 13 ; Brailhwaite's Pr. 43. 5 Ante, 6 Ante. . », c u 11 I ' 7 Taylor v. Bailey, 3 M. & C. 677, 683 : 3 Tur. 308 ; Foster v. Fisher, 4 Law J., «. S. 237. »•■ "H Osborne v. yulUon, 3 Drew. 596, 609, the Court, on allowing a demurrer, refused leave to aw the bill. DISMISSINO '|iJT.-l'*"' (483) I '•■ -f CHAPTER XV. DISMISSING BILLS, OTHERWISE THAN AT THE HEARIN(J, AND STAYING PROCEEDINGS. Section I. — Generally. Before a defendant has answered, the plaintitt' may dismiss the bill, as against him, without costs : on an order to be obtained upon motion of course.^ Where, however, such an order was obtained in breach of faith of a compromise entered into with the doferidantj it was discharged with costs.* Our practice seems to be different, for it has been held that after service of a b'ill on a defendant the plaintiff cannot dismiss his bill on precipe against such defendant without costs, even though no answer has been filed.^ Esten, V. C, giving as a reason that the defendant may have incurred costs by instructing solicitors and counsel. After answer, and before decree, the plaintiff may, generally, ob- tain an order to dismiss the bill, but only upon payment of costs : unless the parties, against whom it is to be dismissed, consent to its being dismissed without costs.* The order may be obtained on pre- cipe; and if the defendant's consent is required, it is signified by the appearance of counsel on his behalf on the motion, or by his solicitor subscribing a consent. The application is usually made exparte. ^ HTiere, however, there has been any proceeding in the cause which has given the defendant aright against the plaintiff, the plaintiff cannot dismiss his bill as of course ; thus, where a general demurrer had been overruled on argument, Lord Cottenham was of opinion that the plaintiff could not dismiss his bill as of course : the de- I Tkmptmi V. Tluimpson, 7 Beav. 350 ; Wyatt's P. R. 60, 61 ; Braithwaite's Pr. 566. For form of order, see Seton, 1377, No. i. ' iitU V. Barton, 3 Jur. N. S. 154, V. C. W. 3 CoaU V. Macbeth, x Cham R. 200. 4 Otxm V. Parks, 1 Ves. J. 402 ; Wyatt's Pr. 61 : Braithwaite's Pr. 566. These rules also apply where the plaintiff is suing on behalf of himself and others : Hatui/ord v. Storie, 2 S. & S. 196, 198 ArmtroHgy. Storer, 9 Beav. 277, 281; ante. 5 For form of order, see Seton, 1377, Nos. I, 3. 484 DISMISSING BILLS AND STAYING PROCEEDINGS. fendant having a right to appeal against the order overruling the demurrer : which right he ought not to be deprived of, on an ea- parte application.^ Un ler Order 25, the order of course is obtained from the Clerk of Records and Writs where the bill is filed in Toronto, and under Order 35, from the Dejjuty Registrar of the County where it is filed out of Toronto. The Court will not, after motion of the jilaintiti; dismiss his bill without prejudice to his filing another.^ Where a cause has been set down for hearing, the plaintiff is not entitled, as of coui-se, to an order dismissing his bill, with leave to file another bill.' It seems once to have been the privilege of the plaintift' to dis- miss his bill, when the defendant had answered, upon payment of 208. costs ;* but that rule was altered ;° and the Statute of Anne has since enacted,® that, upon the plaintiff's dismissing tis own bill, or the defendant's dismissing the same for want of prosecution, the plaintiff in such suit shall pay to the defendant or defendants his or their full costs, to be taxed by the Master,^ It seems, formerly, to have been considered, that the Court had no power to make an order, on the application of the plaintiff, dismissing the bill without costs, except upon the defendant's consent actually given in Court. ' j It has now, however, been decided, that the Court has power to j make such an order in a proper case ; and such orders have been j made : where tKe defendant surrendered a lease, to obtain an a.'- signment of which the bill was filed, and absconded :^ where the j bill was filed under a mistake, undei- which both plaintiffs and de- fendants were at the time:^'' where the defendants had assigned theii" interests to co-defendants, after the bill was filed, and bad I Cooper V. Lewis, a Phil. 178, i8i ; and see Aitulie v. Sims, 17 Beav. 174; see also 5sequent passing of an Act of Parliament, or by the reversal of a case on the autho- rity of which the bill was filed, or by any subsequent matter i^ and where the plaintiff had been misled by the act of the Court.' The application to dismiss, in these cases, is usually made by spe- cial motion, of which notice must be bi^rved on the defendants, or such of them as are affected by the motioii, Where, however, the matters in dispute have been disposed of by an independant proceeding, but the bill has been dismissed for want of prosecution, with costs, as against some of the defendants, the plain- tiff can no longer move to dismiss it, as against the others, without costs; the Court not being able to adjudicate as to the costs, in the absence of the dismissed parties, who might be prejudiced by the other defendants being entitled to add their costs to their securities, or otherwise. In such a case, the bill can only be dismissed with costs.^ I Where the plaintiff moved to dismiss the bill with costs against some of the defendants who had disclaimed, without prejudice to the question by whom the costs should ultimately be borne, it was held by Sir James Wigram, V, C, that the order might be made without serving the other defendants, as they could not be prejudiced ;* but Sir J. L. Knight Bruce, V. C, refused to make such an order, unless the other defendants were served.' The course of proceeding to obtain the dismissal of the bill by a plaintiff who disavows the suit, has been before pointed out.' Where the suit is not disavowed, one co-plaintiff may, with the consent of the defendant, dismiss a bill with costs, so- far as concerns himself, if it will not in any way injure the other plaintiffs : otherwise, the 1 Hawkins v. Gardiner, 17 Jur. 780, V. C. S. 2 Sutton Harbour Company v. Hitchtns, 15 Beav. i6i : i De G. M. & G. 161, 169; and see ib. 16 Beav. 381; Robinson V. Rosher, i Y. & C. C. C. 7, 12: 5 Jur. 1006; but see Smxth Staffordshire Railway Company v. Hall, 16 Jur. 160, V. C. K. ; Lancashire and Yorkshire Railway Contfany v. Evans, 14 Beav. 529; Ventilation aud Sanitary lnt/»ovimcnt Company v. Edelstoft, 11 W. R. 613, V. C. b.; Elseyy. Adams, 10 Jui. N. S. 459: 12 W. R. 586, L.J. J.; Riley v Croydon, 10 Jur. N. S. lasi: 13W. R. 223, V. C. K. .,,...,, l^titery.Leather, iY)cG.k].i(,v. ijwr. U.S. iA&. "' ' . 5 rroword v. Attwood, 27 Beav. 85. ««%,^". Lambert, 5 Hare, 178 : 10 Jur. 109 ; and see CollU v. CoUu, U L. J. Ch. 66, V. C. K. B.; Styles V. Shipton, 3 Eq. Rep. 224, V. 0. W ' irwdinon V. Potewuin, 12Jur. 89. .. , . • I I I* V', % c: t ■ v. ■ J 8 into. 1/ ■' .. f, s 480 DISMISSING BILLS, AND STAYING PnOCEEDINGS. Court will refuse the order, unlcHS upon terms, ho framed ax to pro- tect the other plaintiffs in the suit from injury.^ The mere circiirc- Htance, that the rights of the plaintiff applying to he dismissed arc cocnurrent with those of the plaintiH's who remain, will not h: a suffieient reason for refusing the application : since any defect which his withdrawal may make in the record may he supplied by making him a defendant, by amendment.^ A plaintiff may, in general, obtain an order to dismiss his own bill, with costs, as a matter of course, at any time before e difimissed.-^ And when;, ujk ii the hearing of the cause, the li'ourt has nien^ly directed ah issue, the plaintiff may, before trial iif the issue, obtain an order to dismiss the bill with costs : because |tk* directing of an issue is only to satisfy the conscience of the ('(lurt, prefatory to its giving judgment. If, however, the issue has I Wn tried, and determined in favour of the defendant, the plaintiff |caniiot move to dismiss : because the defendant may have it set lidw-n on the E(|uity reserved, in order to obtain a formal dismissal of the bill, so as to enrol it as a final judgment, and thereby make I it pleadable.* After a decree has been made of sueli a kind that other persons, I besides the i)ai'ties on the record, are interested in the jtrosecution of it, neither the j)laintiff nor defendant, on the consent of the other, I can obtain an order for the dismissal of the bill. Thus, where a |ilaintiff sues on behalf of himself and all other persons of the same [class: although he acts upon his own mere motion, and retains the [absolute dominion of the suit until the decree, and may dismiss the liill at his pleasure, yet, after a decree, he cannot by his conduct [deprive other persons of the same class of the benefit of the decree, if they thiidc fit to prosecute it. " The reason of the distinction is, that, before decree, no other peraon of the class is ))ound to rely upon the diligence of him who has first instituted his suit, but may file a bill of his own ; and that, after a decree, no second suit is per- mittfid."^ Where a defendant submits to the whole demand of the plaintiff, and to pay the costs, he has a right to apply to the Court to dismiss ilie bill, or stay all further })roceedings.^' The application is usually made on motion, of which notice must be given. The Court will Dot, on such an application, go into the merits of the case ; but will 1 EmT.Devey, 11 Beav. 221; see also Laehley v Hogg, 11 Ve8 602 , Bluck v. Colnaghi, 9 Sim. 411; Bmdford V. Storie, 2 S. & S 196, 198. - Barton v. Barton, 3 K. & J. 512 : 3 Jiir N. 8. 808. " i'wn., 11 Ves. 169; Barton v. Barton, vbi mp.; and Bee post. Camngton v. Hoily, 1 Dick. 280 K P.", I ■'^^'i^' ^i*^^' 2 S. *. S. 196, 108; York v. White, 10 Jur. 168, M. R., ante; and see post. ?i« o I ^"*'*' '" '^'""'^ "■ '^^aham, 8 Beav. 699; see also Pembertort v. Topham, 1 Beav. 411) : i Jur. 1009 ; Iloldcn v. Kynastcn, 2 Beav. 204, 206; Field v. Robinson, 7 Beav. 66; Hennet Jii ?A ,' ^2 ^**^' *79; Darner v. Lord Portarlington, 2 Piiil. 30, 35: 1 C. P. Coop. t. Cott, 229, ^1 ■'S''.^?^' Vrtwton V. Roe.U Sim. 353; Paynter v. Carew, Kay, App. 36: 18 Jur. 417; Won V. Batnbngge, 22 L. J. C. H. 979 : 1 W. R. 487, M. R. I I ■J 488 DISMISSING BILLS, AND STATING PROCEEDINGS. only consider the conduct of the parties in conducting the cause, It wiU not, therefore, entertain such an application, unless the de- 1 fendant submits to pay the costs, as well as comply with all tlie plaintiff's demands :^ though it has, in some cases, determined tbe question whether particular costs, incurred in proceedings collateral to the suit, are to be paid by the defendant.^ The costs of suit which the defendants must submit to pay, include the costs of co- 1 defendants, for which the plaintiff is liable.^ Where there are several defendants, and the plaintiff claims only ] part of the relief against one defendant, that defendant may apply, by special motion, to stay all further proceedings, on satisfying the whole demand made against him, and paying the plaintiffs costfi | incurred up to the time of making the application.* proceedings u I counts or enqi Orders to s I submitted to applicatio:" I that the defer ing, for the pi such an applic I consent.^ Wh I promise out o will not deteri bearing.* c ■ ■ill— it: >ii* In a foreclosure or redemption suit, the bill may be dismissed on the special motion of a subsequent incumbrancer, as against all the defendants except himself, on his paying into Court, by a specified day, a sum sufficient to cover the mortgage debt and interest, and the costs of the plaintiff and other defendants.^ Where discovery is sought from the defendant, the plaintiff is entitled to continue his suit for that purpose ; and an application by the defendant be- fore answer to stay proceedings, upon his submission to the plain- tiff's demand and payment of the costs of the suit, is premature, and will not be entertained.*' The defendant may also, by submitting to pay the plaintiff's de- mands, ^nd his costs of the suit, obtain an order to stay the pro- ceedings, under a decree in which other peraons are interested, as well as the parties to the suit ; but, in such a case, any one of the persons so interested may subsequently, on special motion,' with notice to the parties to the cause, obtain an order that the applicant may have either the conduct of the cause, or liberty to carry on the 1 Walliii V. Wallis, 4 Drew. 458; Hennet v. Luard, ubi gup.; see, however, Ilolden v. Kyvatt'jr, tibi mp. 2 Penny v. Beavan, 7 Hare 133 : 12 Jur. 93«. 3 Pemberton v. Topham, and Paynter v. Carew, ubi sup. 4 Sawyer v. Mills, 1 M'N. * G 390, 395 : 13 Jur. 106i ; see also //olden v. Kynaston, ubi mp. 5 Jones V. Tinney, Kay. App. 46; CMlie v. Ouiynne, ib. 46 : where the forms of the "rden we given; see also Paynter v. Carew, t6 36 : 18 Jur. 417; and Paine v. Edwards, 8 Jur. N. 8. law. 1202 : 10 W. R. 709, V. C. S., where the motion was refused : the priorities being in disputf: Wainwright v. Sewell, 11 W. R. 560, V. C. S. 6 Stevens v. Brett, 12 W. R. 572, V. C. W. 7 16 & 16 Vio. c. 80, 8. 26. . GENERALLY. 489 proceedings under the decree, or the prosecution of particular ac- I counts or enquiries.^ Orders to stay proceedings, on the ground that the defendant has submitted to the plaintift"s demands, have also been made on the applicatio'^ jf the plaintiff, hostilely to the defendant ;^ but it seems that the defendant has a right to have the cause brought to a hear- ing, for the purpose of determining the question of costs ; and that such an application by the plaintiff can, therefore, only be made by consent.^ Where the question in dispute has been settled by com- I promise out of Court, without providing for the costs, the Court will not determine the question of costs, either on motion or at the I hearing.* An order will not be granted to stay proceedings or dismiss the I bill in a suit merely because the subject matter of it has gone; the plaintiff has a right to proceed to a hearing to shew himself entitled I to costs.*^ By consent, the bill may be dismissed or the proceedings stayed, n motion of course, or on special motion,^ on any terms which may I be agreed upon;^ and where an agreement to dismiss a bill was en- tered into at the trial of an action dirocted to be brought, and made a rule of the Court of Law, the Court of Chancery enforced it against the parties, on motion in the cause.^ Where any of the par- ties are not sui jiiris, or are executors or trastees, the Court must be satisfied of the propriety of the agreement.^ Where a plaintiff has made default in payment of the costs of 1 SeeSoJter v. Tidedey, 13 W R. 376, M. R. See also ante. l}\.,iol8v. Elford, 5 Jur. N. S. 264, V. C. W.; Notth v. Great Northern Railway Company, 9 Giff. 64: 6 Jur. N. S S44 ; Thamimon v. Knightu, 7 Jur. N. S. 704 : 9 W. R. 780, V. V. W.; Brooksbank v. Higginbottom 31 Beav. 36; and see Siveii v. Abraham, 8 Beav. 598; Ilennet v. iuard, 12 Beav. 479, 480. i Imghamv. Great Northern Raiiway Company, 16 Sim. 173: 12 Jur. 674; Burgess v. Hills, W Bea/. 244, 249 : 5 Jur. N. S. 233; Burgess v. llately, 26 Beav. 249; M'Navghtan v. Masker, 12 Jur. 966, V. C. K. B.; Wilde v. Wilde, 10 W. R. 603, L J.J ; Morgan v. Great Eastern Railway Conwany, 1 H. & M. 78; and see Chester v. Metropolitan Railxmy Company, 11 Jur. N. S 214, M, R, * S'^^owv. iMTd Cranley, 6 Mad. 365; Roberts v. Roberts, IS. & S. 39; Whalley v. Lord Suffield, 12 Beav. 402; Nichols v. Elford, 5 Jur. N. S. 264, V. C. W. 5 » aWooe V. Ford, 1 Cham. R. 282. "here the terms are complicated, or a fui d in Court is dealt with, the application is usually maile nn spec al motion: tee Winihropv Winthrop, 1 C. P. Coop. t. Cott. 201: Richardson v Eyton, ^Oe 0. M. & G. 79 ; Harrisvn v . Lane, 2 Sm. & O. 249 ; Dawson v. Netesome, 2 Giff. 272 : 6 J ur. ». 8. 625. 1 5?*;*^"!''* V. Gnat Western Railway Company, 2 Giff 64 ; Troward v. Attwood, 27 Beav. 85. itrntly. Potter, 4 Hare 164; see also Warwick \. Cox, 9 Hare, App 14; JDawfmi v. Neicsome, m iup,; see, however, Askew v MilHngton, 9 Hare, 65: 15 Jur. 632. (T^*^- ^'^' "** *«P." an«l see Lippiat v. Holley, 1 Beav- 423 Seton, 691; FoUvi v. Todd, 1 ■ > r 1 ■ I ; (^Ixun. R. 288.' ^ 490 DISMISSING BILLS, AND STAYING PROCEEDINGS. o-'.! S^ a former suit against the same defendant, or the person whom he re} resents, for the same purpose, the defendant may obtain an order, on motioD, with notice to the plaintiiF, staying all further proceedings until the plaintiiF has paid such costs ;^ and where, after great delay, the costs still continue unpaid, the Court will order the plaintiff to pay them within a limited time, or, in default, that the second bill stand dismissed.^ Where, however, the two suits are not for the same matter, and the second bill could not be produced by a fair amendment of the fii-st, such an order will be refused ;' nor can it be obtained, where the plaintiff sues by his next friend ;* nor, it seems, where the defendant has taken any step in the new cause, before making the application.'' Where the same object may be attained under two different modes of proceeding : if the first is adopted, and then abandoned and the second adopted, the proceedings in the second may be stayed until the costs of the first are paid.^ It would seem that the amount of the costs should be ascertained by taxation or other- wise, before the application to stay procedings is made.^ Where a plaintiff is in contempt for non-payment of costs in the suit, an order to stay proceedings until the costs have been paid 9iay be obtained on special motion;^ and where he has failed to give security for costs pursuant to an order, the defendant may o1)- tain, on motion with notice, an order that he give security within a limited time, or the bill be dismissed.® Where sc curity for costs is ordered to be perfected within a cer- tain time, or the bill be dismissed, an order to dismiss may be "^ ;:il 1 Pickett Y. Lnggan,5Ves 706; Altree v Him/ern, 5 Beav. 623 028: 7 Jur 247; Laulmrs.M combe, 10 Beav. 256; Spirex v. Sewell, 6 f-iiti. 193. Oiuje v. Trxielock. 2 Moll. 41; Long v. Stimt 13 Jur. 1091, V. C. E ; Spryc v ReymU 1 De G. M &• G. 712; Ernest v. Partridge. 8 L. T. JJ S. 762, y. C. W.; see, however. Wild v. Hobsan, 2V. & B. 105, 108. The application should not m made until the amount of the costs has been ascertained by taxation: Ernest v. Partridgi; i(6t sup. 2 Princess of Wales v. Lord Liverpool, 3 Swanst. 567; Lautour v. Ilolcombe, 11 Beav. 624; £rw*' V, Covett, 2 N. R 486, V. C. W. 3 Budge v Budge, 12 Beav. 885, 387. 4 Hind V. Whitmore, 2 K. ^ . J. 458. , 5 Onge v T%-uelock, 2 Moll. 41. ' 6 lohy V Smith, 12 Beav. 154; Davey v. Durrani, 24 Beav. 411: 4 Jur. N. S. 398. seeal'oOMwM V. Cobbett, 12 Beav. 01, 95 7 Ernest v. Partridge, 8 L T. N S. 762, V. C. W. ; and see Foleu v. Smith, 12 Beav. 154: Dat«ii.\ Lurrant, 24 Beav. 411: 4 Jur. N. S. 398; Altree v. llordern. 5 Beav. 623, 628 : 7 Jur. 247; «W'' V. Sewell, 6 Sim. 103; Long v. Storie, 18 Jur. 1091, V. C. E. , , 8 Bradbury v. ihawe, 14 Jur. 1042, V. 0. K. B. ; Wihon v. Bates, 3 M. & C. 107, 204; 9 Sim. M: . Jur. 107,310; Futroye v. Kennard, 2 Gift. 633: 7 Jur. N S. 958; and see WildwHobm,^ Mad. 49: cited 3 M. at C 202 9 Kennedy v. Edwards, 11 Jur. N. 8. 153, V. C. W. GENERALLY. 4,91 anted ex parte, on a certificate that no bond for security has been led) ' ■• ■ There are also several cases in which, where there are two suits llating to the same subject-matter, the Court will, under certain (umstances, make an order staying the proceedings in one of lem* Thus, as we have seen, where two or more suits are insti- led in the name of an infant by different persons, each acting as i next friend, the Court, on being satisfied by an in(juiry, or other- [ise, which suit is most for his benefit, will stay the proceedings in lie other suit.^ So, also, where two suits are instituted, for the ad- listration of an estate : when the decree has been obtained in ke suit, proceedings will be stayed in the other. I Where the second suit embraces an object not provided for in le decree pronounced in the first suit, the proceedings in the cond suit will not be stayed :* as for instance, where the oree is made in a creditors' suit, and a bill is filed by a atee.' But even in this case, it is often desirable to obtain transfer and amalgamation of the two suits.^ Where the ond suit pi-ayed additional relief, the Court stayed proceedings lit, on the parties to the first suit undertaking to introduce into le decree in that suit, the additional relief which might be obtained the second suit.^ In another case, the Court stayed proceed- gs iu the second suit, only 3c far as the relief sought could be ob- kiocd in the first suit f and recently, the Court, on the parties enting that an immediate decree should be made in the second lit, ordered the two suits to be consolidated, and decreed the fur- [ler relief which could be obtained in the second suit;* but iiere, after a bill had been filed by one executor against his co- ^ecutor for administration, and asking special relief, but, before tree, the latter obtained, on summons, an order against the former I *'<;«'■'*« V HcCatroll, 2 Cham. R. 380. ■ »m T Guy, 2 C. P. Coop. t. Cott. 289, 296: 2 Phil. 159; Rigby v Strangwayg, 2 Phil. 175, 177; 10 'M. 998; Underwood v. Jee. 1 M'N & G 276; 17 Sim. 119: 15 Jur. 99; andsee T tUntt 1 Seton, 889. lUndnwood v. Jee.ubi nup.; Meiiziea v. Connor, 3 M'N. *: O. 648, 652; Anson v. Towgood, 6 Mad. fl4; P\ckford V Hunter, 5 Sim. 122, 129; Ladbroke v. Sloane, 3 De O & S 291; Smith y. Gay, "'"■"■" " " ■ ■" ■ " S. 123; H'yii«t»i{jf«on V. £du'ord», 3 De G. V. Darner, 2 Phil. 262; I'lunkett v. Leteit, '^^?*|"»»Vv. Slater, 1 Y. & C. C. C. 484; Godfrey v. Maw, ib. 485; Putt v. Gallini, 1 S. & S. ■ (■ ' ^^'^S'n V. Sage, 3 M. & C. 683, 687. ri'^ry. Peterson 26 Beav. 83; Matthews y. Palnur, 11 W R. 610. V. 0. K. !H^/fHv.i.'o,tcr,6Bcav. 146. r "'"^wv. CamrbeU, 2 H. & M. 43. 379. •» m ■ •wars 492 DISMISSING BILLS, AND STAYING PROCEEDINGS. to administer the same estate, the Court refused to discharge thJ order.* Where a decree has been made in both suits, the Cou will direct the administration to proceed in that branch of tiJ Court in which the decree is in the most perfect state, notwithstandj ing that it may be posterior in point of date.^ The pendency of another suit in which the plaintiff could obt the relief he seeks in a bill was considered no answer to a motion I dismiss.^ It is the duty of the personal representative to make the applicai tion, as soon as a decree has been made in one suit;* but if hq neglects to do so, the plaintiff in the suit in which the decree ha been made,^ or any person interested,^ may obtain the order] although he is not a party to the other suit. Where two suits for the administration of the same estate, one bvl the executor, and the other by the residuary legatee, come od gether, the proceedings in the executor's suit will be stayed, aD(J the decree made in the residuary legatee's suit.^ Where such an order is made, the costs of all parties to the second suit who are parties to the first suit, up to notice of the decree, i usually made costs in that suit, and the costs of any party v not a party to the first suit, are ordered to be paid by the executorj and added to his own.^ If the executor has no assets to pajj them, liberty will be given to such party to go in and prove then in the first suit.® If the plaintiff in the second suit proceed, after notice of the de cree in the first suit, he will not be allowed the costs of such subse^ queut proceedings ; but he will not be made to pay costs.**^ When 1 Pifford V. Vanrenen, 13 W. R. 425, V. C. S ; tied qu. if the plaintiff in the summons suit was enti| tied so to sue: see 15 h 16 Vic. o. 85, s. 46. 2 Littlewood v. Collins, 11 W. it. 387, L.J.J. 3 Guthrie v. MacDonald, 3 Cham. R. 99. 4 Tlierry v. Henderson, 1 Y. & C. C. C. 481, 483: 6 Jur. 386; Stead-y. Stead, 2 C. P. Coop, t, Oott 311; Vackwood v. Maddison, 1 S. & S. 232, 234: 2 C. P. Coop. t. Cott. 312. 5 Earl of Portarlingtnn v. Damsr, 2 Phil. 202; and see Sivale v. Sioale, 22 Beav. 401. Smith V. Guy, 2 C. P. Ooop. t. Cott, 289, 297. 7 Kelky. Archer, 10 Jur. C05, M. R. ; and Miller v. Powell, V. C. K. B., 14 July, 1849, there r feiTed to. 8 Seton, 888; GoUer v. Golder, 9 Hare, 276, 279; WeU v. Swinburne, 14 Jur. 360. V. C. K. KM see Therry v. Henderson. 1 T. & Cf. 0. C. 481, 48;}: 6 Jur. 386; Frowd v. Baker, 4 Be»v. 76,1" Littlewood v. Collins, 11 W. R 387, L.J.J. ; and see form of order, Seton, 887. _ , 9 Canhain v. .Veafe, v6 Beav. 266 : 5 Jur. N. S. 52; Ladbroke v. Sloaw, 3 De G. & S. 291; ra'l Swinburne, ubi stip. ; see form of order, Seton, 887. I 10 Earl 0/ Portarlir^gton v. Darner, 2 Phil. 262; and see Seton, 888. *tf:lM GENERALLY. 493 liowever, the Court considered that the second suit was improperly nstituted, the plaintiff in it was ordered to pay the costs of the lirder of transfer, and of the motion to stay proceedings.^ The rule, that when two suits are instituted for the administra- tion of til'! same estate, that shall be prosecuted in which the earlier liecree lias been obtained, does not apj)ly when it has not been ob-' ined fairly ; and the Coui*t held this to have been the case where, U the same day on which notice had been given to an executor to Lppear to an administration summons, he appeared of his own cord at an earlier hour in Chambers of another Judge, and con- ented to an order on a summons then, and not previously, applied L, by another plaintiff.^ But the Court, by consent, made an limmediate decree in a cause not in the paper, for administration of Ithe real and personal estate of an intestate, at the suit of a creditor, lafter a summons in Chambers loi- the administration of the personal [estate had been taken out by another creditor, and which was re- Ituraable before the first day on which the cause could be heard as a Ishort cause.^ Where the suit in which the decree was made was instituted by Itffo executors against a third, the Court refused to stay the proceed- lings in a suit by a creditor whose case* depended on vouchers and Idocuments in the executor's hands, until they had put in their ans- Iwer; and directed the motion to stay proceedings to stand over until jthat had been done ; observing, that the Court would then know I who ought to have the conduct of the litigation.* When the order staying proceedings is made, if a sufficient reason for so doing appears, the Court will give the conduct of the decree to the plaintiff in the suit in which the proceedings are stayed;^ but the mere fact that the plaintiff and defendants in the suit in which the decree has been made, appear by the same solicitor, is not a sufficient reason for so doing ; and where a creditors' and a legatees' suit are- amalgamated, the Court prefers giving the conduct l&Jterv. 2Wde»/«y, 13 w. R 376, M. R. ! fc"™ ^- fi<^»^y, 1 De O. F. & J. 13 ; and see Frott v. Wood, 12 W. R. 2 5, L.J. J 8{Jiwev. Hennet, 4 DeO. &J. 125. ! J^ V. Smith, 2 K. & J. 411 ; see also Budgen v. Sage, 3 M. & C. 683, 687. » »«e «ocra« , Smith, tt&t gup. ; Jiorvall v. Patcoe, 10 W R. 338, V. C. K. ; Bawkei v. Batrett. 6 «»d. ^ . ji«Jtv. ilrcAer, 16 Jur. 606, M. R., M' Hardy v. Hitchcock, 12 Jur. 781, L. C; Smith »• tfuy, 2 PhU. 169: 2 0. P. Coop. t. Cott. 289; Wheelhoiue v. Caivert, cited Seton, 888; FroHt v. icooa, uoi tup. m 494 DISMISSING BILLS, AND STAYING PROCEEDINGS. of the cause to tKe legatee, who is interested in reducing the ex- penses as much as possible, all persons being at liberty to attend and assert their claims : considering it very important that adniin-l istration suits should be conducted in a friendly spirit.^ WherJ there are no special circumstances giving the preference to eitbeJ plaintiff, the plaintiff in the first suit in point of time will have the] conduct of the proceedings.^ ii'l jK •% M ■>•■■■• Where a decree or judgment has been obtained in a foreio country, in respect of the same matter for which a suit has l^etij commenced in the Court of Chancery, proceedings in such suit wi be stayed, if the Court is satisfied that the decree or judgment in thd foreign Court does justice, and covers the whole subject of tha suit.^ A party to a suit in the Court of Chancery, wherein a decree ha been made under which he may obtain relief, will be restramc(j from prosecuting a suit in a foreign Court for the same object^ Proceedings in a suit may also be stayed, pending a rehearing oil appeal. It may also be mentioned here, that when an oppressive numbej of bills has been filed, for infringement of the same patent, the Coun will appoint some of the infringers to represent the others, and the proceedings in the remaining suits.^ Where a suit had been compromisi d, and the proceedings therein stayed, the Court, on setting aside the compromise as against one > the plaintiffs, gave him permission to proceed with the suit, althouglj it remained stayed as against the other plaintiffs.** ^V^v,, 1 PerS. J. RomUly, M. R., in Penny v. Francis, 7 Jur. N. S. 248: 9 W. R. 9; sre also Ee&t Archher, ubi mp.; Harris v. LigUfoot, 10 W R. 31, V. C K. 2 Nonall V. Pascoe,iibi sup.; and see Salter \. Tildesley, 13 W. R. 376, MR. , 3 Ostell V. LePage, 2 De G. M & G. 892, 894; 16 Jur. 1134, V. C 8.; see also Stainton\:Canii Company (No 3), 21 Beav. 500. „ 4 Harrison v Gnmey, 2 J. & W. 563; Brnhhy v. Munday, 5 Mad. 2fl7; Beauehamp v. H^n*"' Huntley, Jac. 546; Booth v. Leycester, 1 Keen, 579; Wedderbum v. Wedderburn, 2 Bm ^^' 214: 4 Jur. 66; 4 M &. C. 585, 594, 596; Graham v. MaxweU, 1 M'N. & G. 71 : 13 Jur. 217; i laren v. Stainton, 16 Beav. 279 : overruled by H. L ., 5 H. L. Ca. 416; see aUo Stoinfon v. i^ ron Company, 21 Beav. 152, 500; 2 Jur. N. S. 49 L. C. & L. J .J. ; and upon conflict of junsdiciiM generally, see Venning v. Lloyd, 1 De O. F. & J. 193, 200 : 6 Jur. N. 8 81 ; and Seton, 881 6 Foxtnell v. Webster, 10 Jur. N. 8. 187 L. C; 2 Dr & 8. 250: 9 Jur. N. S. 1189. 6 Brooke v. Lord Mostyn, 13 W. R. 248, L J.J. FOR WANT OF PROSECUTION. 495 Section TI. — For Want of Prosecution. Order 273 provides that " A defendant may move the Court upon notice, that the bill may be dismissed with costs for want of prosecution, and the Court may order the same accordingly, in the following cases : " 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 replication, or set down the cause to be heard on bill and answer, or serve notice of motion for a decree, within one month from after the answer, or the last of the answei-s has been filed : "2. — If the plaintiff, not having 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 : "3 — If the plaintiff, not having obtained an order to enlarge the time does not set down the cause to be heard, at the next sittings of the Court at the place where the venue is laid, in case issue has been joined three weeks before the commencement of such sittings." The four weeks mentioned in this order (which is taken from an English one) expires at 12 o'clock at night on the last day.i If a bill is filed and no office copy served within the period limited for service (three months) the bill will, on application, be dismissed. ^ Id is no answer to a motion to dismiss under such circumstances that the bill was filed before 1864, when the order limiting the time was passed.3 After the twelve weeks allowed for the service of a bill of complaint, if the same has not been served, the defendant is entitled to an order to dismiss, unless the plaintiff" shows such ex- cuse for the delay in effecting service as would justify an order allowing service, notwithsanding the lapse of time.* Where the plaintiff obtains an order for leave to amend his bill, and, having obtained no order to enlarge the time,^ does not amend the bill within the time limited by the order to amend, or, IPrerfon v. Collett, 20 L. J. N. 8.,Ch. 228, and see Ponsardin v. S-, 32 Beav. 666 : 9 Jur. N.8. 886; Ernest v. Govett, 2 N. R. 486; Hart v. Rubarta, 32 Beav. 231: 7 Jur. N. S. 669. I Moon V Roseburgh, 2 Cham. R. 406. <> lOn. Iffamyv. jDoiiidjon, SCham. R.496. 5. ArUe, 1 in ^I^^ Hm •ffj!* ««ai >tt m -i* c N"," »' •i%f' •% s 496 DISMISSING BILLS, AND STAYING PROCEEDINGS. if no time be so limited, within fourteen days from the date of such order, the order to amend U void, and the cause aa to dismissal stands in the same position as if the order to amend had not been made.* Order 274 provides tliat " Where the plaintiff has amended his bill, after answer, a 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 en- large the time, does not file the replication, or set down the cause to be heard on bill and answer, or serve notice of motion for a de- cree, within the times following : , , " 1. — Within fourteen days after the amendment of the biO, where no answer has been filed, and the defendant 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 the amendment of the bill: "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 plaintift* within such fourteen days, has obtained leave to re- amend the bill." The order 275, that " In every other case, where the plaintiff is delaying the suit unnecessarily any defendant may move the Court upon notice, that the bill may be dismissed with I costs, for want of prosecution after the expiration of one month from the time of filing his answer, in case 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 replica- tion, or set down the cause to be heard on bill and answer, or I serve notice of motion for a decree within such month : and upon the hearing of the motion, the Court is to make such order for the dismissal of the bill, or for the expediting the suit, or as to costs, as under the circumstances of the case seems just." When a motion is made to dismiss the bill for want of prosecution, the party moving must show that notice of having put in an answer, has been dulyj 1 Ord. 88. This order applies to aU orders to amend, wiietiier of course or not: Armitttead ». D^f ham, 11 Bear. 428: 13 Jur. 330; Baittbrigge v. Baddeley, 12 Beav. 162: 18 Jur. 997. '\,\ III I I llfflill .^ FOR WANT OF PROSECUTION. 497 served.^ In moving to dismiss for want of prosecution, it is not suiHcient for the certificate of the Registrar to state only that no replication has been filed ; it must also state that no further pro- ceedings have been had, and it must be shown when the office copy of the answer was served.^ When a cause has been set down for hearing the })laintitl' is not entitled as of course to an order dismiss- ing his bill with leave to file another.^ Where a question aifected I the right of the Government to the land granted in a Patent, the Attorney General was held to bo a necessary party, and leave to amend was granted to enable him to be added as a party although the defendant was in a position to move and made a counter motion I to dismiss ; but the defendant was allowed costs.* The right of a defendant to move to dismiss depends, in all cases, I upon the proceedings of the plaintiff relative to the particular de- ■ ndaiit making the motion, and not to the general proceed- I ium in the cause as to other defendants. The form of order to be made upon such a motion is, however, within the discretion of the Court : which will, of course, be guided by the conduct of the cause 1 relative to all the defendants. The plaintiff", by obtaining and serving an order for leave to [amend the bill, precludes the defendant from moving to dismiss ; and the order to amend is in time, if drawn up and served before the motion to dismiss is actually made, although after notice of the I motion has been served.'' And if, after service of the notice, the files replication, it is also a complete answer to the mo- But in such cases, and in others where a defendant's title to Idismiss is intercepted by a step taken by the plaintiff between the hotice of motion and its being heard, the plaintiff has to pay the costs [of the defendant's application to dismiss the bill.^ This is the English practice, but it is modified by our order 276, hhich provides that " Where a defendant is entitled to give a notice |to dismiss, it is not to be a sufficient answer to the motion for the plaintiff, after being served with the notice, to take out and serve an 1 % V. Samon, 1 Cham. R. 71. I TAompsod V, fiucAflJian, 3 Grant, 652. - . - , ,. ••- . i««W(^»*»*<''<'-)v-*owKn»i 18 W.R. 618, L.J. J. > I ' wmAaw V. Bu,mham, 1 Cham. R. 894. • '-■■id 504 DISMISSING BILLS, AND STAYING PROCEEDINGS. it m c: The Court, however, sometimes directs the motion to stand over. in order to give the plaintiff an opportunity of taking a step in the cause, and so preventing the bill being dismissed ; and upon his doing so, makes no other order on the motion than that the plaintifi pay the costs ;^ or, if satisfied that the plaintiff has used reasonable diligence, it has refused to make any order on the motion ;^ and after replication has been filed, the Court will, in a proper case, give the plaintiff further time.^ Where it appears that a defendant who was in a position to move to dismiss was aware of the residence of a co-defendant whom the plaintiff could not (though using reasonable diligence of which the defendant moving was aware) find to sei"ve with the bill, a motion to dismiss for want of prosecution by such defendant was refused with costs.* Where one of the defendants had answered, and the time for replying had expired, a motion was then made to dismiss the bill as against him for want of prosecution : but it appearing that such defendant was President of an incorporated Company whose answer had not yet been filed, the motion was refused with costs.^ The Court will exercise a discretion in granting or refusing an order to dismiss and consider the peculiar circumstances of the case; where, therefore, the defendant has been dilatory in obey- ing the rrder to produce, and refused to go down to hearing by consent, when plaintiff being too late to go down otherwise, applied for a consent, an order to dismiss was refused, and under the same citcumstances an order to open publication and for leave to ^et down cause for the following examination and hearing term granted.* Notwithstanding the enactment that, upon the defendant's dis- missing a bill for want of prosecution the plaintiff shall pay to the defendant his costs, to be taxed by the Master,^ the Court has a discretion to make such order in respect of costs, as well as in other respects, as it thinks fit ; and though, in most cases, where the de- fendant was in a position to move to dismiss at the time the notice 1 Young V Quimy, 9 Beav. 160; Stinton v. Taylor, 4 Hare, 608, 609 : 10 Jur. 386. 2 Ingle v. Partridge, 12 W. R. 65. M. R. 3 Pollard v. Doyle, 2 W. R 509, V. C. K.; and see Forbes v. Preston, 11 Jur. N S. 198, V. C. S 4 Shaver v Allison, 1 Cham. R. 203. 6 Heel T Jaeques, 1 Grant, 352. 6 Jefs V. Orr, 2 Cham. R. 273. ,, . 7 i it 5 Ann. c. 16, s. 23, ante. A' to the form of oriier where it is by an official ma.iaifer oriiqi"; dator, see Grand Trunk Company v. lirodie, 3 De G. M. & G 146 : 17 Jur. 309 ; 9 Hsre »»• '' Jur. 206 ; Ogloiat Manager of Consols Insurance Cmnpany v. Wood, 13 W. R. 492, V. C. K.;*"" Ne Morgans Davey, 226. '•'"''^■^■■■fc- FOR WANT OF PROSECUTION. 505 was served, the Court orders the plaintiff to pay the costs, whatever order it may make in other respects, it has refused to make any order upon the motion :^ has dismissed the bill, without costs :^ and has even gone the length of dismissing the motion wath costs.' Where the plaintiff becomes bankrupt,* the rule is to dismiss the bill without costs. Where the defendant becomes bankrupt, it seems to have been formerly considered that the bill if dismissed for want of prosecution, ought to be dismissed without costs ;^ but it has since been held, that the fact of a defendant becoming a bankrupt is not of itself a sufficient reason for departtng from the ordinary nile that, a bill dismissed for want of prosecution, is dis- missed with costs.® The Court will not enter into the merits of the case, for the pur- pose of determining whether the bill shall be dismissed with or '.vithout costs ; but will, for that purpose, only consider the conduct of the parties in the prosecution of the cause.^ Where a defendant, knowing that the plaintiff has used due dili- gence and been unable to get in the answers of other defendants, moves to dismiss the bill for want of prosecution, the motion will be dismissed with costs ;^ and it is, therefore, prudent on the part of the plaintiff to give a defendant who is in a position to move to dismiss, notice that the other answers have not been got in, if such is the fact.^ Where the plaintiff undertakes to speed the cause, the order ought to go on to provide that, in default of his taking the appoint- ed step within the prescribed period, the bill shall be dismissed mth costs, without further notice.^" 1 Vent V. Pacey, 3 Sim 382; and see Ingle v. Partridge , uhi sup. ■ Pinfold y. Pinfold, 9 Ha,T6,A.\>v.U: 16 Jiir. 1081, V. C. T.; and see South Stafiordshire RaUieay Cumpamj v. Hall, 10 Jur. 160, V. C. K. ; Lancashire aiul Yorkshire Railway Company v. Evang 14 Beav. 629 ; Kcinbal v. Walduck, 1 Sm. & G. App. 27 : 18 .'ur. 69, V. C. S. J Partington v. Baillie, 5 Sim 667: Winthrop v. Murray, 7 Hare, 150 : 13 Jur. 82. ♦ Meiklam v. Elmore, 4 De O. & J.. 208 : 5 Jur. N. S. 904. 5 Bktuhardv. Drew. 10 Sim. 240; Monteith v. Taylor, 9 Ves. 615: 1 M'N. & O. 81, n.; Kembaliv. Walduck, 1 Sm. & G. App. 27 ; 18 Jur. 69; Find/ay v Lawrence, 2 De G. & S 303. 6 Blaekmore v. Smith, I M'N. & G. 80 : 13 Jur. 218; Robson v. Earl of Devon, 3 Sm. 4 G. 227 : 2 Jur. , N. S. 505; fjcvi v. Heritage, 26 Beav. 560; 8. C. norn. Lever v. Heritage, 5 Jur. N. S. 215. I '«a. 253; and see Bartlett v. Harton, 17 Boav. 479; 17 Jur. 1019; Stevens v. Praed 2 ^x, 374; Dobede v. Edwards, 11 Sim. 464. For form of order in such case, see Seton, 1278 Ko. 4. I 'I .S; 506 DISMISSING BILLS, AND STAYING PROCEEDINGS. -''\ S: 1 ; 1 ■ ■■% ^H-.. 2"*^- ZIL: ^iLi. -mntzz -f' J. '■ 1 1 T;l,? If the plaintiff makes default in taking the next step within the time limited, no further indulgence will in general be granted him.^ Where, however, the plaintiff considers he has a case enti- tling him to ask for further indulgence, he should make a special application for further time, by motion, before the expiration of the period limited ;2 or if the time has expired, the application must be to have the bill restored.^ It is not, however, the ordinary course of the Court to restore a bill which has once been dismissed ; it must be shewn that substantial justice requires that it should be done, and then, upon the particular circumstances, the Court will make the order.* The Court will not restore a bill which has been regularly dismissed, for the mere purpose of agitating the question of costs.^ After an order dismissing a biU for want of prosecution has been obtained upon notice, the plaintiff applied to discharge that order, alleging his intention of prosecuting the suit^ and that he had not received any personal notice of the motion to dismiss. The application was granted upon payment of costs, and the terms of paying into Court certain instalments claimed to be due the defen- dant.* A motion to restore a bill dismissed for want of prosecution was refused where great delay had taken place on the part of the plaintiff.^ Semhle, a bill properly dismissed for want of prosecu- tion will only be restored under strong and special circumstances . where an injunction bill had been dismissed which had been filed to restrain proceedings at law, and judgment at law had been confessed on obtaining the injunction, and afterwards on the dismissal of the bill, money paid under the pressure of the judgment which it was now alleged was in excess of any due, a motion to restore the bill and take accounts between the parties was refused.^ Where a plaintiff swears to a good case, on the merits, the Court will, in its discretion, give him an opportunity to hear his case on the merits; even after an order to dismiss has been properly granted.® 1 LaUert v. Stanhope, 6 De G. & S. 247; Stephenson v. Mackay, ubi sup.; WUlianu v. Page, H Beav. 490; Bartlett v. Uarton, vbi *up. 2 LaMert v. Stanhope, vbi tup. 3 Bartlett v. Barton. 17 Beav. 479: 17 Jur. 1019; Jackson v. Pumeli, 16 Ves. 204; the appllcatld', in this case, should be made by motion, 4 See Southampton Steam Boat Company v. Hflwlins, 11 Jur. N. S. 280: 13 W. R. 512, L.J.J., wliere the delay had been occaaioned by a mistake. 6 Hannam v. South London Water iVorkt Company, 2 Mer. 63, 64. 6 Campbell v. Ferris, 1 Cham. R. 50. 7 Davy v. Davy. 2 Cham. R. 26. 5 Hodgson y PMcton, 2 Chaxa, R. 308. ,. -r .,,. . -■;; 9 Baesr. Attomey-Oeneral, 2 Cham. R 800. .:::'"■, • : ^- FOR WANT OF PROSECUTION. 507 It has been held, that it is no answer to a motion to dismiss that ^he plaintiff has not been able to get in the answers of other defen- dauts;^ or that the delay of the plaintiff was occasioned by diffi- culties in drawing up an order allowing a demurrer by other defen- dants, with leave to amend ;^ or that the plaintiff has applied for Ithe production of documents, unless the application was made with- lout delay f or that proceedings had been stayed, against other defendants, till the plaintiff should pay them certain costs ; * or that [the plaintiff had offered to dismiss the bill without costs : the deci- Ision on which it had been fi^ed having been overruled ; ^ or that the {defendant has become bankrupt.^ Where, however, in consequence of negotiations with the princi- Ipal defendant, the plaintiff did not get in the answers of the other {defendant J, and the principal defendant, during the absence of the plaintiff abroad, moved" to dismiss for want of prosecution. Lord (ottenham gave the plaintiff (on the 7th of July,) tiU the first day of the ensuing Michaelmas term, to file replication/ On a motion I dismiss the bill of a raanied woman the Court refused to count ainst her time which had been lost in consequence of an order obtained by the defendant requiring her to name a new next friend, ^ he omission on the part of the defendant to give notice of the filing of his answer," does not affect his right to move to dismiss khe bill for want of prosecution : though, of course, it may materially affect the order which the Court will make upon the motion.^® A defendant is not prevented from moving to dismiss by the suit {having abated, through the death of another defendant.^^ In bills to perpetuate testimony, it does not seem that the defen- dant has hitherto had, under any circumstances, a right to have the liMterv. 4 rcMaJe, 9 Beav. 156; Earl of Momington v. Smith, ib. 261; Baldmn v. Darner 11 I Jur, 723, V C. E.; SthUon v. Taylor, 4 Hare, 608,609: lo Jur. 386: Adair v. Barrimtton s'w R. 361; 2 E(j. Rep 408, V C. W.; Brigg» v. Beale, 12 W. R. 934, V. C. W.; but see ante. ' I Jm» V. Morgan, i2 Jur. 388, V. C. E; see also Drioli v. Sedgwick, 15 Jur. 284, V. C. Ld. C 3 Vraneo v. Meyer, 2 H. & M. 42. « lAtour V. Holcomhe, 10 Beav. 256. .Jf"***'"* ""<' Yorkthire Railway Company v. Evans, 14 Beav. 529 ; the bill was, however, in this case, afterwards dismissed without costs ; South Staffordshire Railway Company v Hall I Jur. 160, V. C. K. . " f n »«, * 'T/' ^^^o^e, 2't Beav. 560, and cases there cited ; 8. C. nam. Lever v. Heritage. 5 Jur. N. S. ; Uariy V. Hariy, 1 C. P Coop t Cott. 16. I 1^,1 ^'*«'*- 2 Cham. B. 476. Ord. III. 9 : see ante. . ,: I ,i°!lff*"^<>»'i'. 1 Jur. N. S. 863: 3W R. 688, V. C. 8 ' " '; ' •, ■ " IfWHMM v. i'offe, 24 Beav. 490. * ■I "P'l w if 608 DISMISSING BILLS, AND STAYING PROCEEDINGS. m i" iMMli cr: bill dismissed for want of prosecution. In Beavan v Carpenter^ ' a cause of this kind, a motion to dismiss before replication, was refused ; but Sir Lancelot Shadwell, V.C, made an order, that the plaintiff should file a replication forthwith, and proceed to the examination of his witnesses, as prayed by his bill, and procure such examination to be completed on or before a certain day ; and that, in default thereof, he should pay to the defendant his costs of the suit. And a similar order was made, on a like motion after replica- tion.^ So, in the case of a biU for discovery, the defendant should not move to dismiss for want of prosecution, but should obtain, on motior • '^f course, an order for his payment of the costs by the plaii^t .' .d in a suit for a receiver, pendente lite, the motion should be for the pa^'ment of costs, to stay proceedings, and, if nece^aiy, to discharge ihe receiver.* After a decree, or even a decretal order, has been made, a bill can- not be dismissed for want of prosecution ; thus, in the case of Blmlc V. Golnaghi,^ which was a suit for winding up the affairs of the partnership between the plaintiff and defendant, and in which an order had been made, by consent on motion, for taking the accounts of the partnership, but had not been drawn up. Sir Lancelot Shad- well, V.C., said, that the order which had been pronounced was a decretal order ; and though it had not been drawn up, yet, either party was at liberty to draw it up ; and that an order in the nature of a decree having been made in the cause, the bill could not be dismissed. But after a decree merely directing accounts and enqui- ries, to enable the Court to determine what is to be done, a bill can always be dismissed.^ An order to dismiss a bill for want of prosecution will not be granted after decree made in the cause.' A bill cannot be dismissed even by consent after a decree has been made in the cause.** ■■■',. . ■ ■ . ,. • - * 1 llSlm. 22. • 2 Wright v. Tatham, 2 81m. 469; and Bariiam v. Longman, ib 460 : see also Brigetoeke v. Boeh, 7 Jur. N. S. 63, V. C. S. 3 Woodcock ^. King, 1 Atk. 286; Attorney-General v. Burch, 4 Mad. 178 ; Rhodes v. ffayn«, 9 Jur. 175, V. C. K. B. ; South-Eastem Railway Cmnpai^y v. Submarine Telegraph Company, 18 Beav 429 ; 17 Jur. 1044 ; Fitzgerald v. Butt, 9 Hare, App. 66. _ . 4 Edwards v. Edwards T J jr 826, V. C. W. ; Anderson v. Qiiichard, 9 Hare, 276 ; Barton t. Ro« (No. 2), 22 Beav, 376 ; but see Williams v. Attomey-Ocneral, Seton, 1003. 6 9 Sim, 411 ; Egg v. Devey, 11 Beav. 221 ; and Collins v. Oreaves, 5 Hare, 596 ; Gregory v. Spttuer, 11 Beav. 143. 6 Anon., 11 Ves. 169 ; Barton v Carton, 3 K. .*; J. 512 : 3 Jur. N. 8. 808 ; and see ante. 7 Groves v. Ryvei 1 Cham R. 272. 8 Ontario Bank v. Campbell, 1 Cham. R. 468. .aa FOR WANT OF PROSECUTION. 609 It has been before stated, that an order to dismiss a bill for want of prosecution cannot be pleaded in bar to a new bill for the same matter.^ Where, however, after a bill has been so dismissed, the plaintiff' files another bill for the same purpose, the Court will suspend the proceedings on such new bill till the costs of the former suit have been paid ; and where the defendant, in the suit which had been dismissed, died before he had received his costs, and the plaintiff" filed a new bill against his executor for the same object, Sir Lancelot Shadwell, V.C, ordered the proceedings on the new bill to be stayed, until the plaintiff had paid the executor the costs of the dismissed suit.^ This rule does not apply, where the plaintiff sues by a next friend.' A motion to dismiss for want of prosecution had been refused with costs. Held, that another motion to dismiss could not be made till the costs of the prior one were paid, though it appeared that the plaintiff's solicitor had not taken out his certificate.* An order to dismiss a bill for want of prosecution, effectually puts an end to every proceeding in the suit which has been dismissed, and no subsequent step can be taken in it, except such as may be necessary for carrying into effect the order of dismissal.^ Therefore, where a defendant obtains an order to dismiss a bill for want of prosecution, without the plaintiff's having made a motion of which he has given notice, the defendant cannot afterwards obtain the costs of the motion, as an abandoned motion. i t Where a bill is dismissed with costs, they may be taxed without any order referring them for taxation, unless the Court prohibits the taxation; and they will be recoverable by Jifa, in the usual manner. Where the dismissal takes place before the hearing, only those costs which are costs in the cause are included f therefore, when the costs of a motion or other application in the cause are reserved, they should be made costs in the cause, or reserved " until tl>e hearing or further order," and not simply " until the hearing." ^ Unt«. . ' . ' ^v Storie, 18 Jur. 1091 V. C. E. ; and see ante. ' Bmd V. Whitmore, 2 K. & J. 458. I °«'wy V. Ferguson, 1 Cham. R 218. J^iorinwrv. Larimer, 1 J. & W. 2?4; Bartlett v. Harton, 17 Jur. 1019, M. R. " «««n» V. Keating, 1 M'N & G. 659, 663 : 14 Jur. 157. ' ^witioW Y. Forteath, 4 Jur. N. S. 608, V. C. W. ^:r 610 DISMISSING BILLS, AND STAYING PROCEEDINGS. li Where a bill was dismissed for want of prosecution, in a suit inl which the official manager of a company under process of winding up had, after institution of the suit, been substituted as plaintiff, tli" order provided that the defendants should be at liberty to prove for their costs in the winding up.^ The order dismissing a bill for want of prosecution, may be en- rolled, although the only object in doing so be to prevent an aj Section III. — Where the Suit has abated, or become othm\i!\ Defective. Where a suit abates by the death of a sole plaintiff, the Court,! upon motion of any defendant, made on notice served on the leg representative of the deceased plaintiff, may order that such leg representative do revive the suit within a limited time, or that the! bill be dismissed.^ We have no order similar to this English one, but it is embodiment merely of the old practice established in the time oi Lord Eldon, and is, therefore, the practice in this Province. TliJ practitioner may safely follow the English decisions on this onlen The words legal representative mean heir, or devisee, or execul tor, or administrator, according as the suit relates to real or personaj estate.* Where the sole plaintiff died after decree, and after an injunctioi to restrain waste. Lord Langdale, M, R., made an order, that further proceedings should be stayed, and the injunction dissolve unless the suit were revived within a limited time f but Sir R. Kindersley, V.C., declined to follow this case,* on the ground thaj 1 Ceddwell v. Ernest, (No. 2), 27 Beav. 42 : 5 Jur. N. 8. 667. 2 Williams v. Page, 1 De G. & J. 561. , ._^^ 8 Ord. XXXn. 4. This rule is only applicable to an abatement or defect occurring before decree. to proceedings in the suit, after an abatement, but in ignorance of it, see Smithy, ^'"'v"'''! Beav. 381 ; Houston v. Briseoe, 7 W. R. 394, V. C. K. For form of order under r. 4,8ee .«" 1278. No. 6. 4 See Prioe v. Berrituiton, 11 Beav. 90. 6 Ibid. 6 Jra^ T. Dudgeon, 1 W. R. 614, V. C. K. TW^ w \ T WHERE SUIT HAS ABATED, OR BECOME DEFECTIVE. 511 the defendant could hiin self revive.^ And where an injunct'^n had been obtained, restraining an action at law, and the sole plaintiff died, Sir John Romilly, M. R., said he had no jurisdiction to make an order that the suit be revived by the plaintiff's representatives^ or the bill be dismissed.^ If the bill is dismissed, it will be dismissed without costs.' A suit does not abate by the death of a sole plaintiff, who is the public officer of a joint-stock company :* in such a case, therefore, the defendant should apply to dismiss the bill in the usual form, and not that it may be revived within a limited time or dismissed.* Where a suit abates by the death of one of several co-plaintiffs the defendant may, on motion, obtain an order that the surviving plaintiffs do revive within a limited time, or, in default, that the bill stand dismissed with costs ;® and it is no answer to such an ap- plication that there is no personal representative of the deceased plaintiff.'^ No order will be made as to the costs of the motion.® Where a suit abates by the marriage of a female sole plaintiff, a similar order may be obtained against her husband ;* and it seems that the order will be made with costs.^** Where the abatement is caused by the death of a defendant, his representatives may move that the plaintiff do revive the suit within a limited time, or, in default, that the bill may be dismissed as against them; and the order is, it seems, for the dismissal without costs." Where a suit is partially abated by the death of one of the defen- dants, the other defendant cannot move to dismiss the bill for want of prosecution, the proper course is to move that the plaintiff do re- 1 See Devaynes v. Morrit, 1 M. & C. 213, 226. 2 Odfteld V. Cobbett, 20 Beav. 663. 3 Chomek v Dimes, 3 Beav. 290, 492, n. ; and cases In i*. 294, n. ; HUl v. Qount, 7 Jur. N. P. 42 : 9 W. R. 68, N. C. W. 4 See 7 Geo IV. c 46, 8. 9. 5 MmesUr v. Yon Stem, 28 Beav. 82. 8 Adanuon v. HcUi, T. A.- R. 268, overruling 8. C. 1 S. & S. 249 ; Chichester v. Hunter, 3 Beav. 491 ; Lwd Uuntingtotoerv. Sherbom, 5 Bea.v. 380; Uolcmnbe v Trotter, 1 Coll. 664; Norton v. White, 2DcO. M. & O. 678 : PoteeU v. Powell, tb. n ; Pudge v. Pitt, 9 W. R. 100, V. C. S. ; Pearoe v. Vnghton, 24 Beav. 253 ; Hinde v. Morton, 13 W. R. 401, V. C. W. 7 Mner v. Deaven, 16 Beav. 80. 8 mnde v. Morton, u6t sup. 9 Jmton V. Horlock, 3 Beav. 294, n. , WUkison v. Charlesworth, ib. 297, n. « ''oAnwm V. Horlock, uhi imp. ; see however, WUkison v. Charletworth, ubi sup., eantra. 11 BV!nell\ DxUce of WeMtMton, 6 Sim. 461 ; Norton v. White, 2 De O. M. & G. 678 ; Powell v. rweJl, ib. n. ; Ctoss v. CrossM W. R. 797, V. C. 8. ; Reeves v. Baker, 13 Bear. 116, isinoor< wctly reported: see 2 DeO. M. & O. 679, n. (6). i ! 1 % f^ l".wfr- 512 DISMISSING BILLS, AND STAYING PROCEEDINGS. , 5: .9 ti '.r^: vive within a limited timo.^ This case must not now be considered I as governing the practice of the Court, for it has since been dt'cided i that one of the surviving defendants may properly move to dislnl.^^, though the suit has become abated by the deatli of another defen- dant,2 Where a suit becomes defective by the bankruptcy 0^' a solf plaintiff, the defendant may obtain, on special motion,^ an order that the assignee do within a limited time (usually three weeks), take I proper supplemental proceedings for the purpose of prosecuting ih suit against the defendant, or, in default, that the bill be dismissid, I without costs.* And where one of several co-plaintiffs becomes | bankrupt, a similar order may be obtained against the other co- plaintiffs ;^ but in this case, the dismissal will be with costs.'' If the plaintiff becomes bankrupt after decree, the Court will, 011 1 the motion of the defendant, order that the assignees elect within a | limited time, whether they will prosecute the suit, and, in default, that all further proceedings be stayed.' And a similar order has been made, with respect to a trustee under the act to facihtate ar- rangements with creditors.^ The order to dismiss on occasion of abatement, or of the suit be- coming defective must not be confounded with an ordinary order! to dismiss for want of prosecution. The two orders differ from one I another materially, both in the circumstances in which they may I be obtained and the forai of the order when it is made. After al suit has abated, or after it has become defective by the bankruptcy I of the plaintiff, it is irregular to move for the ordinary order to dis-j miss the bill for want of prosecution f and such an order, if madcj will be discharged for irregularity.^** , , • 1 B. U. C. V. Nichol, 1 Cham. R. 294 ; and see Ruie v. Oeorge, 2 Cham. R. 74. 2 KeUey v. MackUm, 2 Cham. R. 132. . . , . 8 Ab to serving notice of the motion on the bankrupt, as weU as on the assignees, see kw™ • i Hooper, 8 Sim. 570. _ „ , . . T/it I 4 Ante : Sharpe v. Hullett, 2 S. & S. 496 ; Wheeler v. Maiins, 4 Mad 171 ; fo'^'J-iy! fi Mad. 80 ; Lord Huntingtnwer v. Sherbom, ubi sup. ; Robinson v. Norton, i" Fisher v. Fisher, 6 Hare, 028 ; 2 Phil. 236; Meiklam v. Elmore, 4 DeG & J. 208: 904 : Jackson v. Riga Railway, 28 Beav. 75; Boucieault v. Delafield, 10 Jur. N.S. i--^ , . . 1026, V. C. W. ; 10 Jur. N. 8. 1063 : 13 W. R. 64, L. JJ. ; where the banliruptoy has occurjw '»■ a foreign country, see Sourbaud v. Bourbaud, 12 W. R. 1024. V. C. W. As to the eHeci w i trust deed by the plaintiff, under 24 & 25 Vic. c. 134, sec s. 197. For form of order, see !k< 1278, No. 6. . „ ,, 1 n.« 6 Ward v. ITorrf.S Beav. 897: U Bear. 159 : 12 Jur, 692; KUtmnsUr v. PratA, 1 Hare, however, Caddick v. Masson, 1 Sim. 501. 6 Ward v. Ward, and KUminster v. Pratt, ubi sup. 7 Whitmore v. Oxbmrrow, 1 CoU. 91 ; Clarke v. Tipping, 16 Beav. 12. . 8 Hardy v. Dartnell, 4 De. G. & 8. 568; see 7 & 8 Vlc. o. 70; 24 & 25 Vic. c. 134, «. 1»7. .- Robinson v. Morton, 10 Beav. 484. 10 Boddy v. Kent, X Mer. 861, 865; Sellers v. Dawson, 2 Dick, 738, 2 Anst 468,a it sfi^il Where a si it, he ma^ i)btaiQ the usi nth costs;* hat granted ( Where the p jtime, for the i At the plaint quity, or witl wmpel a plaim lerformance of of the sai :in Equit lebt Thecas( quently said t any rate, he bd or covenai Smrk,'^ how Kception to a ''^uponaboi ne was suing MeRum. The principle ie suit in this icourtofcoi I,„""oo«t«. I *?•'&:' CASES OF ELECTION. 513 Where a suit becomes defective by the bankruptcy of a defen- at, he may, as we have seen, notwithstanding his bankruptcy, Obtain the usual order to dismiss the bill for want of prosecution, ith coats ;^ but he cannot obtain an order of a similar kind to Ithat granted on the bankruptcy of a plaintiff.' i' 1 T I if Section IV. — Caaea of Election. Where the plaintiff is suing both at Law and Equity, at the same ae, for the same matter, the defendant is entitled to an order at the plaintiff do elect whether he will proceed with the suit in quity, or with the action at Law,^ Thus, the Court will generally ompel a plaintiff to elect between a suit in Equity for the specific «rformance of an agreement, and an action at Law brought in res- of the same agreement.* So also, as a general rule, a party : in Equity will not be allowed to sue at Law for the same pebt The case of a mortgagee is an exception to this rule : it is quently said, that he may pursue all his remedies concurrently t any rate, he can proceed on his mortgage in Equity, and on his ond or covenant at Law at the same time.^ In the case of Barker Smirk,^ however Lord Langdale, M. R., refused to extend the iception to a case of a vendor, who had commenced an action at «w upon a bond for his unpaid purchase-money, and at the same ne was suing in Equity to establish a lien upon the estate for the aesum. I The principle of election has also been applied where there was isuit in this country, and another for the same matter in a for- i court of competent jurisdiction.' I, wtcort*. Hum- Dukt S. 802. If ti ^ I' '"^ V. nmpton, O. Coop. 294. 9 1>, ;;fl"^" JtOBPf .<^''f ■■fl I •m 5-14 DISrrflSSING lilhLH, AND STAYING- PROCKEDINOS. The plaintiff, in an interpleader issue at law, having filed his bill for relief in this Court while the interpleader i,s pondiiKr, is not bound ti> elect. ^ A defendant is not entitled to an order callin? upon the pUintiff to elect wliether he will proceed in this Court nr at law, until after he has answered the bill ; and a demurrer is not such a proceeding as will entitle the defendant to the orde ^o. fendants, sued at law and in this Court for the same matters, are entitled, on filing their answer, to obtain an order against the plain- tiff to elect on precipe ; and it is not necessary that all the defend- ants should apply for such order. The motion to discharge sucli order should be made in Chambers ; if made in Court it will be re- fused or referred to Chambers, and the costs of the day given to the defendants. The Court in its discretion, will allow both suits to I proceed only when the proceedings at lav/ arr^ ancillary to those in equity. It is not necessary that such an order should be obtained | by all the defendants.^ It seems that, in a particular case, the plaintiff may be )wed to proceed partially in Equity, and partially at Law, and ^ledl to enter into a special election.* t v The ordet" must be served on the plaintiff or his solicitor, and attorney at Law; and within eight days after such service, the I plaintiff must make his election in which Court he will proceed J and if he elect to proceed in this Court, then his proceedings at Law! are thereby stayed by injunction ; but if he elect to proceed at Law,! or in default of his making his election within the specified time, then his bill from thenceforth stands dismissed out of this Court,| with costs to be taxed by the Taxing Master, without further order: such costs to be paid by the plaintiff to the defendant. It is notl the practice to issue an injunction : the service of the order beingj sufficient.^ . , . ., , I : . . J • r • Jl.l '•' fori When the defendant has obtained such an order, the plaintil may move, on notice to the defendant, to discharge it, either irregularity or upon the merits confessed in the answer, or proved by affidavit. If, upon such a motion, there should be any doubt Mj 1 MffLmn v. Beatu, 1 Cham. R. 84k 2 G. W. R. Co. V. Desjardint Canal Co., 1 Oham. K. 39. 3 Winter v. Hamburgh, 1 Cham R. DS; and see Witodaidey. T>ickey, 1 Cham. R. 170. 4 Barker V. thimaretqtte, 2 Atk. 11»: Seton, 949; Atwn.,! Vern. 104: 3 Atk. 129; Tn.vUetloii^l Kemmk, LI. & Ooold 29; mils v. Fry. G. Coop. 107: 19 Ves. 277. 6 Braiihwaite's Pr. 229 ; aee Funningtt v. Humphrey, 4 Beav. 1, 7, %>; 6 Jur. 455. CASES OF ELKCTION. f 516 .11 'Trimtato'^ ' to whether the suit in Equity, and tlic action at Law, are for the same matter, it \h the usual course to iliroet an onipiiry into that fact.^ In the event of sueli an omiuiry being directed, it seenis that all the proceedings in both Coui'is are .st;fyod in the moan tiiiie,'^ unless the plaintiff can show that justice will be better done liv permitting proceedings to some extent : in which case, .s})ecial leave will be given him to proceed.' . If the common order cannot, un-' . the circumstances, be ob- tained, it soems that the Court ^vill, if necessary, make a special order, and grant an injunction in the meantime.* The election must be in writing, and signed by the plaintiff or his solicitor, and be ^led ; and notice thereof must be given to the defendant's solicitor : who thereupon obtains an office copy.* The dismissal of the bill, in consequence of an election by the plaintiff to proceed at Law, cannot be pleaded in bar to another suit for the same matter.^ .y i ,, If the plaintiff requires further time to make his election, he must apply to the Court by motion, on notice, to have the time en- larged.' After decree, it is not the practice to make an order to elect ; but the plaintiff wiU be restrained, on the motion of the defendant, from I proceeding in another Court, in respect of the same matter : even j though such proceedings are merely auxiliary to the proceedings in jEquity.8 If the plaintiff elect to proceed in Equity, the defendant will either be allowed to recover the costs of the action in the Court of [ Law,* or the plaintiff will be directed by the Court of Chancery to \Mmley v. Basmtt, 1 V. & B. 382, n. ; and for form of order for Inquiry, see Seton, 948, No. 3. I MiiU V. Fry, 3 Ves & B. 9 : Anon , 2 Mad. 395. . 3 imory v Brodrick, Jac. 530, 533; Carwick v Young, 2 Swanst. 239, 243; Mousiey v. Bamett, ubi tup.; see, however. Fenninga v. Humphery, 4 Beav. 1, 8 : 5 Jur. 456. ' oojue V. Curtu, IJ. & W. 449. 5 We have no order similar to tills, but it is presumed that tlie Court will adopt the practice. ; pi 5 CwnteM of Plymouth v. Bladon, 2 Vern. 32 I wrform of order enlarging: the time, see Seton, 948, No. 2. » ituwbV. Wetherherd, 2 Mer. 406, 408 ; Frank v Bagnett, 2 M. & K. 618, 620; Weddertium t. Wedderbum, 2 Beav 208, 213 : 4 Jur. 66 ; 4 M. & C. 686, 696 ; Phelps v. Prothero, 7 De O. M. & 0. 722 : 2 Jur. N. S. 173. Going in under an administration decree to prove a debt, is not such l^'leetion to proceed in Equity, as prevents an action at law : Sexton v. Smith.S De O. ft 8. 694, » Simwon V. Sadd, 3 W. R. 191, L. C; see also, S. C. 16 C. B. 26; 1 Jur. N. 8. 736; and MorHmore v.Soorc«,6Jnr.N. 8.574, Q.B. ■^ 1 'm ■,'f* Sfc; <: •I* 516 DISMISSING BILLS, AND STAYING PROCEEDINGS. pay them ;^ and if he elect to proceed at Law, the bill is as we have seen, by the order dismissed with costs.^ . i .. Our order 465 provides that " Where a mortgagee has proceeded at Law upon his security, he shall not be entitled to his costs both at Law and in Equity, unless the Court sees fit to order otherwise." It has been held under this order that where a mortgagee proceeds at Law and in Equity, he cannot, in the absence of special circum- stances to justify the proceedings, elect to take the Chancery costs in- stead of those at law, if the defendant objects thereto.^ And where it was shewn that a mortgagee had for the honajtde purpose of pre- serving the mortgage premises from destruction or delapidation, in- stituted proceedings at Law to obtain possession of the property, he was not deprived of his costs in Equity.* A defendant having allowed the- plaintiff to proceed with his suit in this Court as well as at Law for the sarae object, afterwards applied for an order on the plaintiff to elect in which Court he would proceed. The Court granted the order, bu£ directed the defendant to pav «o much of the costs at Law as had been incurred after the defen t became aware that the relief sought in both suits was the same.^ CHAPTER XVI. MOTION FOR A DECREE. Our Order 270 provides that : " The plaintiff, at any time after the period allowed for answering has expired, but before replication, may move the Court for such order as he thinks himself entitled to, in the three following classes of cases : I. Where there is no evidence. ' v, . II. Where the evidence consists only of documents, and such affidavits as are necessary to prove their execution or identity, with- out the necessity of any cross-examination. 1 See Carwiok v. Young, 9 Swanst. 239, 242. 3 Weir r. Taylor, 1 Cham. R. 371. 4 Dallas V. Oow, 1 Cham. R. 65. 5 Aiwnan t. Montgomery, 6 Orant, 176. 2 Ante. '^^.^'-V'wy:>■-^', -; >- M i 1 ; MOTION FOR A DECREE. 517 III. Whei-e infants are concerned, and evidence is necessary only so far as they are concerned, for the purpose of proving facts which are not disputed. • -i. ^ ' ' ,. , • . ■ ' - . • ■ This order is not to apply to cases in which the Court gives leave to serve short notice of motion for decree." This order is taken from the Imp. Sta. 15 and 16 Vic, c. 86, s. 15 and it has been held in England under the Act, that if the plaintiff moves for a decree, replication need not afterwards be filed.* On a motion for a decree, the plaintiff was assumed, for the purposes of the motion to admit all the" statements of the answer, of which proof will be receivable at a hearing in term." Where ^t the hearing, a cause was ordered to stand over for the purpose of K,dding parties by amendment, the cause was allowed to be heard on motion for decree against the new defendants : though replication had been filed against the original defendants.' An order of course to amend the bill may be obtained after notice of motion for a decree has been served, but before it has been set down : although the defendant has filed affidavits in opposition.* The form of notice of motion for decree commonly adopted is to the effect, that the Court will be moved for a decree, " according to the prayer of the plaintiffs bill ;" and where this form is used, the plaintiff is entitled to have the same relief as he might have had if the cause had been brought to a hearing, in the ordinary way. ^ The plaintiff and defendant respectively are at liberty to file affi- davits in support of, and in opposition to the motion ; and to use the same on the hearing thereof The evidence in chief on such motion is ordinarily taken upon affidavit ; and where the motion is made after answer filed, the answer is, for the purposes of the mo- tion, to be treated as an affidavit ; and the plaintiff has been allowed to cross-examine the defendant Ihereon.® 1 ^fUld V. Stuff es, 9 Hare, App. 87 ; Blake v. Cox, 1 W. R. 124, V. C. W. , . » Jfifeon V. CoMey, 14 Grant, 80. 3 Cwnu V. Givj>o», i K. & J. an. • 4 Gtlly Rayner, i K. & J. 395, 5 ^'r*f V. Steinkopf, Kay, « 6 Wxghtman v. Wheelton, 23 Beav. 397 : 3 V. Hart, 9 Jur. N. S. la : 11 W. K. 53.' V. C. S , ib. App. 10. leav. 397 : 3 Jur. N. S. 134 1 Rehden v. JVeslty, a6 Beav. 43a; Brumfit w vu b ,-, V r" c » » I :i i 518 MOTION FOR A DECREE. m i= njg' •■••'flBJJ' Order 271 provides that " Where it is made to appear to the Court that it would be conducive to the ends of justice to permit a notice of motion for decree to be served before the time for answering has ex- pired, the plaintiff may apply to the Court or a Judge, exparte for that purpose, at any time after the bill has been filed, and the Court, if it thinks fit, may order the same accordingly, and when such per- mission is granted, the Court is to give directions, as to the service of the notice of motion and filing of the affidavit, as it deems expe- dient," This order is taken from Order 17 of the Orders of June 1853, under which it has been held that a plaintiff is not entitled, as of course to a decree before the time for answering the bill has ex- pired : some special ground must be shewn to induce the Court to grant it.^ A plaintiff after giving notice of motion for a decree cannot abandon such proceeding, and set the cause down for hear- ing in the usual way : — if he desires to do so, he must apply to the Court for leave.^ Motions for decree may be set down at any time before the Court enters on the paper.^ Where a defendant by his answer sets up a stated account, the plaintiff does not admit the de- fence by bringing on the cause by way of motion for decree : and the proper decree in such a case is a reference as to such alleged ac- count.* ' If, after the times allowed for filing affidavits have elapsed, it is desirable to file an afiidavit, or a further affidavit, an order for leave to do so will be necessary. Such order may be obtained on a spe- cial application, supported by an affidavit showing a case for the indulgence ; and the applicant will usually have to pay the costs of the application. If the defendant desires to read his own, or a co-defendant's answer, in support of his case, he must give notice thereof to the plaintiff;^ but if the plaintiff reads part of a defendant's answer against him, without notice, the defendant may read the w^hole of his answer, without notice.® ■ •• ' 1 David»on v McKUlop, 4 Grant, 14-'\ "^^ 8 Rogers v. Hooper, 2 Drew, 97, ' i ■ f REPLICATION. 523 Llftintiff filed replication against such defendant alone, the other defendant not having appeared, the Court refused the motion, on the plaintiff undertaking to dismiss the bill against the defendant who had not appeared, but ordered the plaintiff to pay the costs of the Qotion. 1 • Upon filing the replication, the .cause is deemed to bci completely |at issue ; and each defendant may, without any rule or order, proceed to verify his case by evidence ; and the plaintiff may, in like Danner, procee'd to verify his case by evidence : so soon as notice of Ithe replication being filed has been duly served on all the defen- Idants who have filed an answer. i The form of the replication in the General Orders assumes a case [where the plaintiff desires to join issue as to one of the defendants ; I hear the cause on bill and answer as to another ; and to take the Ibill as confessed as against a third.^ Where, however, the plaintiflf Idoes not desire to join issue with any defendant, no replication can lie filed.' The full title of the cause, as it stands at the time the [replication is filed, must be set forth in the heading of the replication, jbut only the names of such of the defendants as have appeared [should be inserted or referred to in the body.* If a defendants name 1 been misspelt by the plaintiff, and such defendant has corrected [the same by his answer, but the plaintiff has not afterwards amended jliis bill with respect to such name, the correction should be shown jin the title of the replication ;^ in the body of the replication, how- lever, the correct name only should be inserted. Where any defen- dant has died since the bill was filed, the words " since deceased" should follow his name in the title, but his name should be omitted lin the body of the replication. If the plaintiff joins issue with aU jtlie defendants, their names need not be repeated in the body : it is cient, in such case, to designate them as " all the defendants" • Ibutif he does not join issue with all, the names of the defendants must be set out in the body. The names of those defendants who are stated in the bill to be out of the jurisdiction, and who have ijot I answered, must be inserted .in the title, but not in the body ; and 1 Bm^ey y. Abraham, 6 Hare, 214. As to when a second or further replication may be filed, with- , out special leave, see Braithwaite's Pr. 73. ; H™ "?; , , 3 Braithwaite's Pr. 72. 4 But see Order 597. » mm ;" John Jones (in the bill called William Jones)." >. or" I It* m ^11 .:■: \ . 524 REPLICATION. the names of such formal defendants as have been served with copy of the bill must be inserted in the title of the replication, bu only such of them as have answered should be named in the body.j Our order 150 provides that "A plaintiff is to admit in his replil cation such facts alleged by the answer as are to the knowledge o| the plaintiff tnie : or as he can readily ascertain to be true, or as hj has reason to believe and doth believe to be true ; and it shall ' sufficient if such admissions are expressed to be only for the purposj of the suit in which the same are made." Our wder 151, tha| " Admissions are in all cases where it is practicable to be by refer] ence to the numbers of the paragraphs in the answers to which thejj relate, with such qualifications as may be necessary or proper foi protecting the interests of the party making the admissions; audi shall not be necessary or proper to allege ignorance of any fact stated in the answer, or any other reason for not admitting any fact thereiij alleged." The replication is prepared by the solicitor of the plaintiff; i| must be written on paper of the same description and size as that on which bills are printed, and be underwritten with the name ana place of business of the plaintiff's solicitor, and of his agent, if any! or with the name and place of residence of the plaintiff where h| acts in person, and, in either case, with the address for service, i any ; and the replication must then be filed at the Deput]i Registrar or Record and Writ Clerk's office. It does not require th«j signature of counsel. Our Order 153 provides that : "Where the plaintiff amends hia| bill, and no answer is put in thereto, and no notice of an application for further time is served within seven days after service of thd bill as amended, the plaintiff, after the expiration of such seven! days, but within fourteen days from the time of the service of the^ bill, is either to file his replication, or set down the cause to heard upon bill and answer, or serve notice of motion for a decree. 1 Our Order 154 that " Where the plaintiff amends his bill afterf answer, and a defendant, within seven days after the service of the! bill as amended, serves notice of an application for further time toj 1 Bralthwaite's Pr. 76. REPLICATION. 525 swer the amendments, but such application is refused, the plaintiff within fourteen days after such refusal, either to file his replica- tion, or set down the cause to be heard on bill and answer, or erye notice of motion for a decree." Any error in the replication, except the omission of the names lof any defendants, may be corrected by amendment ; but an order amend is necessary. The order may be obtained on special notion at Chambers, or, by consent. Against the defendants whose les have been omitted, another replication must be filed, or leave [obtained to withdraw the existing replication and file another ; and 1 order for leave so to do, in either case, must be obtained in like anner, or upon special motion with notice.^ The solicitor must give notice of the filing of the replication to lie solicitor of the adverse party, or to the adverse party himself if he acts in person, on the same day on which it is filed.^ If he neglects to do so, the opposite party should move that the time for lim to take the next step may be extended :^ not that the replica- [tion may be taken off the file. Where a replication was filed several jearsafterthe filing of the answer by a different solicitor from the one Iwho had filed the bill, but no order changing the solicitor had Ikn taken out and no notice of filing replication given, the replication was ordered to be taken off the files and the bill Idismissed.* The notice must be served before four o'clock in the evening, lexcept on Saturday, when it must be served before two o'clock in jthe afternoon. If served after these hours, the service will be jconsidered to have been made on the following day, or Monday, as |tlie case may be.^ • In giving notice of the filing of replication, the most convenient jcourse is to serve a copy of the replication ; but it is not essential Ito do so ; and if not done, the notice must show the purport of the pplication.^ The time for closing the evidence is computed from the py on which the replication is filed. 1 Stuiton V. Tayl»* •«*■: # ■'5'M, ■■■'.' 528 ADMISSIONS. AdniissioiiH are either : — 1. Upon the Record ; or, II. By Agree- ment between the Parties.^ .• I, Admissions on the Record may be : Constructive, namely, those which are the necessary consequence of the form of pleading adopted ; or, Actual, namely, those which are positively contained in the pleading. Actual admissions on the record are those which appear, either in the bill, or in the answer. The facts alleged in a bill, where they are alleged positively, are admissions, in favour of the defendants, of the facts so alleged ; and. therefore, need noo be proved by other evidence : for whether they are true or not, the plaintiff, by introducing them into his bill, and making them part of the record, precludes himself from afterwards disputing their truth. The, plaintiff, of course, cannot read any part of his own bill as evidence in support of his case, unless where it is corroborated by the answer; as, where the bill states a deed, or a will, and the defendant, .in his answer, admits the deed, or will to have been properly executed, and to be to the tenor and effect set forth in the bill : in such case, the plaintiff', having read the admission from the answer, may read his bill, to show the extent of the admission made by the defendant. In strictness, however, this can hardly be called reading the bill on the part of the plaintiff : since the reading is only allowed because the defendant, by admitting the statement to be true as set forth in the bill, has to that extent, mado that portion of the bill a part of his answer. In general, where a defendant refers to a dc .^nt for grea^ certainty, he has a right to insist upon the docu. nmt it ^If being read ;^ but the plaintiff need not, on that ground, n >\y to the answer, but may set the cause down for hearing on bill and answer, and obtain an order to prove the document viva voce or by affidavit at the hearing.* 1 As to admissions generally, see the following worlcs on evidence : Taylor, s. 653, et seq.; Bert, a 543, 632; Gresley, Pt. I. Chaps. 1, 2; Powell, 161. 2 Cozy. Alliiigham,Jao. 337, 339; Lett v. Morris, i Sim. 607, 811. 8 Pieldt V. Cage, cited Wyatt's P. R. 219; our order 176. '■*. .'*■-. kl ADMTBSTONS. 529 With respect to the right of a defendant to make use of the plaintitfs bill as an admission of the facts therein stated, it is to be observed, that, at Common Law, the general rule is, that a bill in Chancery will notbeevidence except to show that such a bill did exist ^ and that certain facts were in issue between the parties, in order to introduce the answer, or the depositions of witnesses ; and that it cannot be admitted as evidence to prove any facts, either alleged or denied in the bill.* In Courts of Equity, however, a differentk rule prevails, and the bill may be read as evidence, for the defendant, of any of the matters there positively averred.* But although a defendant has a right to read the plaintiffs bill as evidence against him, such right is confined to the bill as it stands on the record. If the bill has been amended, the amended bill is the only one upon the record, and the defendant has no right, in that case, to read the original bill in evidence.' It seems, however, that where the consequence of the amendment has been to alter the ef- fect of the answer to the original bill, or to render it obscure, the defendant has a right to read the original bill, for the purpose of explaining the answer ;* and in a cause in the Court of Chancery in Ireland, Sir Anthony Hart, L. C, in deciding upon the question of costs, read from the defendant's office-copy certain charges in the original bill which had been expunged by amendment, for the pur- of ascertaining quo animo the bill had been filed. * A bill may also be read in evidence against a plaintiff, although I filed by him in another suit. In such case, however, it will be ne- cessary to prove that it was exhibited by the direction, or with the j privity, of the party plaintiff in it : " for any person may file a bill in another person's name."' Although a plaintiff, by his replication, denies the truth of the whole of the defendant's answer, he does not thereby preclude him- I self from reading whatever portion of it he thinks will support his le : exf'ept the answer be that of an infant, which, as we have I seen, q&h never be read to establish a fact which it is against the I infant's interest to admit.' The answer of the person under whom 1 menu V Rvtlin, 2 Exch. R. 666 ; 2 Phil, on Evld. 87, 88; Taylor on Bvld. b . T86. iaale, Pom/ret, Dan Ul. 4 Ibid. «»«««tT.A*«tf,.ich. j W. R. 398, V. C. K. ; see also Bird v. Lake, 1 H. i M. 111. 6 Ante. 2 Soh. * "«• * ADMISSIONS. 531 (ruardian in another cause, was read against the mother in her own capacity. And it seems, that where a defendant, being an infant, answers by guardian, and, at full age, neitlier amends nor makes a new answer, as he may do, but prays a hearing of the cause de novo, his answer is evidence against him.^ The iTiswer of an idiot or lunatic, put in by his committee, may be read against him ; and it has been held, that the answer of a j person of weak intellect, put in by his guardian, could also be read against him ;^ but it is doubtful if this decision would now be fol- I lowed.* For the rules of practice with regard to reading the answer of [married persons, the reader is referred to a former portio.i of this Treatise.* Cases have occurred, in which a defendant, has by the form of I his answer, made the answer of a co-defendant evidence against [himself; as, where a defendant stated in his answer that he was much in yeais, and could not remember the matter charged in the bill, but that /. S. was his attorney and transacted the matter, whereupon /. 8. was made a defendant, the answer was allowed to be read against the original defendant: Lord Cowper being of opinion, that the words in the first answer amounted to a reference to the I co-defendant's answer.^ Interpleader suits form an exception to this rule ; and the answer I of one defendant may be read against a co-defenda,nt, to show that I adverse claims are made.^ It is to be observed that, where .n answer has been replied to gen- lerally.it cannot (except by consent,) be read as e i^idence on the part I of the defendant himself In disposing of the question of costs^ however, the Court will permit the defendant's answer to be read in his own behalf;^ and it has been held that a peer's answer upon protestation of honour may also be read on the question of costs, on behalf of the defendant who has put it in.^ Moreover, the Court itself 1 Biode, 422. I Uving V. Caverley, Free In Ch. 227. ,-ii ^io'tlethwaifn v Atkinson, 1 Coll. 178; Peroival v. Camy, 4 De O. t S. 610: 14 Jur. 1066, I'fi; S. C. nmn. Stanton v. Peroival, 3 W. R. 391 : 24 L. J. Ch 869, H. L. .^^- 5 Anon,\V Wins. 301. \!mmMn V. Price, 1 0. P. Coop. t. Cott. 383; Chertxt v. Jote», ib.: 6 Mad. 267, onereadcfendan' has filed an answer, and it has been replied to, it is now a common practice to lie a short affidavit by him, verifyini^ the statements of his answer, in order to nialav 4 . 1 \ 1'r t \ \-^ I t' 532 EVIDENCE. will look at the answer: not as evidence but as what may regulate its discretion with respect to the further investigation of particular facts.! Although a defendant cannot read his own answer as evidence for himself, as to any other point than that of costs, he is entitled to have the benefit of his answer, so far as it amounts to a denial of the plaintiffs case, unless the denial by the answer is contradicted by the evidence of more than one witness: the rule of Courts of Equity being, that where the defendant, in express terms, negatives the allegations in the bill, and the evidence is that of only one person affirming what has been so negatived, the Court will not make a decree.' The denial, however, by the answer, must in such cases be positive : otherwise, the rule will not apply ; as where a defendant, by his answer, denies a fact as to his belief only;' or where it is a mere constructive denial, by the filing of a traversing [ note.* The reason for the adoption of this rule, by the Courts, was: because, there being a single deposition only, against the oath of the defendant in his answer, the denial of facts by the answer was equally | strong with the affirmation of them by the deposition.^ Where, therefore, there were any corroborative circumstances in favour of I the plaintiff's case, which gave a preponderance in his favour, the! Court departed from the rule, and either made a decree, or directed an issue.' Thus, where a bill was filed for the specific performance | of an agreement, which the defendant denied by his ans'^er, but an agreement was proved by one witness, and there w^salso evidence to prove the defendant's confession of it, besidet other corroborative circumstances, a decree was made.^ So, where a defendant had denied notice of a previous mortgage, which, however,! was proved by a single witness, and it was also proved, by other! evidence, that upon an application being made to the defendant onf 1 Miller v. Oow, 1 Y. & C. C. C. 66, 69. . «. ,„ w.tw.n, I 2 Pemberv. Matherg, I Bro. 0. 0. 62 ; see also Kingdot.^ v. Boakes, Prec. InCh. W;f «*«'»»■ I Walthal,2Ch. Ca. 8; Alamv. Jourdan,! Vern. 161; Chriifi Coll. Cam. v. 5*uI!L'^,!M Vera. 283 ; Hime v. Dodd, 2 At"r 276 ; Olynn v. Bam ' " • • - " ° »- • •'"«♦..>■'"■ Orehard, 2 Ves. J. 243 ; Lord Crarutown v. Johruton, . V. Bank of England, 2 Ve». 8. 88 ; Miirtxmef^l ihnston,3 Ves. 170: Cooth v. ^a«*«>«^* VV^.I Evans v. Bicknell, «. i74, 183 : Cooke v. Clquworth, 18 Vo«. 12 , Holdemetu v. ««»«»«,»: -J*" I F. k J. 258, 272 ; 6 Jur. N. S. 903 ; and see Williami v. Williami, 10 Jur. N. 8. 808 i « "■ "^1 6«3, V. 0. i. S Amot V. BUcoe, 1 Vea S. 9\ 97 ; Hughea v. Cfamer, 2 T. ft C, Ex. 888, 886. 4 See ante. 5 Walton V. Bobhi, 2 Atk. 19 „ „ ».w ,iA. miInI « Pember v. Matherg Walton r. Hobbg, Him r. Dodd, and Jamon v. Ainy, 2 Att. 1». "•""I R§ Barfe TrrtH, 4 K. & J. »9. 7 Only V. WtMter, % Alk. 407, 408. ^> ADMISSIONS. 533 behalf of the previous mortgagee for an account, he observed : " You have no right, for your mortgage is not registered," Lord Redesdale held, that the testimony of the witness, who proved the notice I directly, was confirmed h} that observation, which showed that the defendant had investigated the subject, and relied on the neglect to I register the mortgage.* Upon the same principle, where a parol agreement, with part performance, is insisted upon in a bill, and the agreement is denied by the answer, yet, if it is proved by one witness, and supported by circumstances of part performance, such as delivery of possession, the specific performance of the agreement has been decreed.^ In such cases, however, if the defendant, by his answer, denies the agreement set up by the bill, and his denial is confirmed by circum- stances, the Court will not decree a specific performance, although the case made by the bill is corroborated by one witness,' And where a particular agreement by prjol, namely, an agreement to a lease for three lives, was stated in the bill, and proved by Tiritness, and confirmed by acts of part performance, but the iwer admitted an agreement for one life only, and was supported y the testimony of one witness, the Court refused to decree for the ilaintiff: the evidence of part performance being equally applicable either agreement.^ Sometimes, the Court gave the defendant an opportunity of trying Itiie case at Law, when the plaintiflfs case was supported by the [evidence of only one witness and corroborating circumstances ;^ and ometimes the Court directed the answer of the defendant to be read 1 evidence.^ As the practice of directing an issue, in a case of this description, was intended solely for the satisfaction of the defendant, t was by no means compulsory upon the defendant to take one ; and defendant declined an issue, the Court itself was bound to pve judgment upon the question whether the circumstances utweighed the effect of the rule, so as to authorise a decree against I denial in the answer. I , y-T'^ ▼• St. John, 3 Boh. & Lef . 688. I St*" ' •'<»»«*, 1 SwMirt. 178, 188, < 'Miw T. ArmUati; 12 Ves. 78, 70 ; Money v. Jordan, 8 Do a. M. & O. 818 : S, 0. nam. Jordan . '/<««V,6irt. Ca.186. I i ii1?W ^V*"*. 2 Sch. & Lef. 1, 7. » '«*« Conwany v. Donald, 9 Ves. 276, 863, 884 ; IbbotUon ▼. Rhodet, 1 Eq. Ca. Ab. 399, nl i iSlr ^*"^ ^ i Pmnber v, Mathert, 1 Bro. 0. 0. 63 : Savage r. Brooksopp, IB V «. 336—337. I "wtUMn T. JModM uM imi. 1 TV>? -K'l ■'"'it' 11 m w ^mm f . /'A .534 . EVIDENCE. II. Admissions by agreement between the parties are those which, for the sake of saving expense or preventing delay, the parties, or i their solicitors, agree upon between themselves. .r ,i With respect to admissions of this description, as they must depend entirely upon the circumstances of each case, little can now be said respecting them, beyond drawing to the practitioner's notice the necessity there exists that they should be clear and distinct. In general, they ought to be in writing, and signed either by tiie parties or their solicitors ; and the signature of the solicitor employed by the party is considered sufficient to bind his principal : the Court | inferring that he had authority for that purpose.^ It does not, however, appear to be necessary ^at an agreement to admit a I particular fact should be in writing; and where, at Law, the plaintiff's attorney swore that he had proposed that the defendant should acknowledge a warrant of attorney, so as to enable the deponent, if it should become necessary, to enter up judgment thereon, and that the defendant had accepted his oflfer, it was con- sidered well proved that the defendant had agreed to acknowledge! the instrument for all purposes, and that the plaintiff was at liberty to act upon the instrument without the necessity of producing the] subscribing witness.* It is to be remarked, that although the Courts are disposed to give every encouragement to the practice of parties or their solicitors! agreeing upon admissions among themselves, they will not sanction! an agreement for an admission by which any of the known principles! of the Law are evaded ; and, therefore, where a husband was willingj that his wife should be examined as a witness in an action againsti him for a malicious prosecution. Lord Hardwicke refused to allowj her examination : because it was against the policy of the Law toj allow a woman to be a witness, either for or against her husband f Upon the same principle, where the Law requires an instrument toj be stamped, the Court will not give effect to an agreement betweenj the solicitors to waive the objection arising from its not being stamped.* * 1 Young v. Wright, 1 Camp. N. P. 139 : Oainiford v. Oammer, S i6. 9; Laxng v. Kaim, i B<» P. 86. - V— ^ . 2 Marshall v. Clif, 4 Cainp. N P. 133. 3 Barker v. Dixie, Rep. t. Hardwicke, 264. ,„ .^, Vil 4 Owen v. Thomas 3 M. & K. 3fi3, 357 ; Bee, however, Orange v. Piekiford,KniThompt''■ ,!• N I ' -, m , Section II. — The Onus Prohandi. iaiiM, « »** Having ascertained what matters are to be considered as admitted between the parties, either by the pleadings or by agreement, the next step is to consider what proofs are to be adduced in support of those points which are not so admitted. In considering the question of : what matters are to be proved in a cause, the first point to be ascertained is, upon whom the burthen of the proof lies ? And here it may be laid down, as a general proposition, that the point in issue is to be proved by the party who asserts the affirmative, according to the maxim of the Civil Law : " £i mctimblt pi^obatio qui dicit, non qui negat'"^ This rule is common, as well to Courts of Equity as to Courts of Law ; and, accordingly, when a defendant insists upon a purchase for a valuable consideration, without notice, the tact of the defendant, or those under whom he claims, having had notice of the plaintiff's I title, must be proved by the plaintiff.^ So, where a /erne covert, having a separate property, had joined with her husband in a security [for money which it was the object of the bill to recover from her, j (her husband being dead,) and the defendant, by her answer, ad- |mitted that she had signed the security, but alleged that she i done so, not of her own free will, but under the influence I of her husband. Sir John Leach, M. R., held, that it lay upon the Iwife to repel the effect of her signature, by evidence of undue 1 influence, and not upon the plaintiff to prove a negative.* In general, it may be taken for granted, that wherever &2>rima facie nghtis proved, or admitted by the pleadings, the onus prohaTidi is 1 SL*!?.'' ^''- *• 27, g. 7 ; see our Order 168. JUntUs subject, see the foUowing works on evidence : 1 Phillips, 662 : Taylor, a. S87, et tea.; Best, »• »7l i Oresley, 888 ; SUrkie, 686 ; Powell, 180. ! ^J ^' j?o<^ "s '\ Section III. — Gonjined to Matters in Issue. It is a fundamental maxim, both in this Court and in Courts of Law, that no proof can be admitted of any matter which is not no- ticed in the pleadings.^ This maxim has been adopted, in order to obviate the great inconvenience to which parties would be exposed, if they were liable to be affected by evidence at the hearing, of the intention to produce of which they had received no notice. In a for- mer part of this Treatise, the operation of this rule, in requiring the introduction into a bill of every fact which the plaintiff intends to prove, has been pointed out.^ It has also been shown, that the same I file applies to answers, and that a defendant who has put in an 1 Wkitt v.WUion, IS Vm. 87, 88 ; and see The Attonuiy-General t. Pamther, 3 Bro. 0. C. 441, , _*« ; /S?*** V. Riehardt, 18 Beav. 300 : 18 Jur. 527. I ™«T- JFamn, 9 Ves. 605, 611. ' Cooke 7. Lamotte, 15 Beav, 234. "^Ww V. HogkUm, ib. 278 ; Nottidge v. PHmse, 2 Olff. 246 ; 6 Jur. N. S. 1066 ; Walker t. SmiOt, 29 Beav. 894. ' ^^M "• Norton, 1 Vera. 484 ; Gordon v. Gordon 3 Swanst. 472 ; Clarke v. Turton, 11 Ves. 240 ; »^t«iam» V. LUmllyn, 2 Y. & J. 68 ; Hall v. Maltbu, 6 Pri. 240, 269 ; Powys v. Mantfieid, 6 01111.660 ; and see the following works on evidence : Taylor b. 239, etaeq.; Best, s. 258, et tea.; Oresiey, 230; Powell, 220. . n - . . ii . I into. llF ■ \M- i i i f 5d8 BVIDENCfi. iz: p\ uaower, cannot in strictness avail himself of any matter in his de- fence which is not stated in his answer, although it appears in his] evidence.^ In certain cases, however, evidence of particular fa. . may be given under general allegations, and, in such cases, there- fore, it is not necessary that the particular facts intended to be proved should be stated in the pleadings. The cases in which this excep- tion to the general rule is principally applicable, are those where the character of an individual, or his general behaviour, or quality of mind comes in question : as where, for example, it is alleged that a man is non comi)08, particular acts of madness may be given in evi- dence, and not general evidence only that he is insane.^ So, also, where it is alleged that a man is addicted to drinking, and liable to be imposed upon, the evidence should not be confined to his being a drunkard, but particular instances may be given.' In like manner, where the charge in a bill was, that the defendant was a lewd woman, evidence of particular acts of incontinence was allowed to be read* In cases of this nature, however, it is necessary, in order to entitle the party to read evidence of particular facts, that they should point directly to the charge ; and therefore it has been held, that an alle- gation in a bill, that a wife had misbehaved herself, did not imply that she was an adulteress, and that a deposition to prove her one ought not to be read.^ And so, the mere saying that a wife did not behave herself as a virtuous woman, will not entitle her hus- band to prove that she has committed adultery, unless there is an express charge of the kind :® for the virtue of a woman does not con- sist merely in her chastity.^ The question, how far particular acts of misconduct can be given in evidence under a general charge of misbehaviour, appears to have been much discussed before Lord Talbot, in Wheeler v. Trotter : * I which was the case of a bill filed for the specific performance of an agreement to grant a deputation of the office of Registrar of the Consistory Court ; and, amongst other defences set up by the de- 1 AnU : Smith v. Clarke, 12 Vos. 477, 480. From the case of The LotwUm and Birminghmn M- way Company v. WinUr, C. & P. 57, 62. it seems, that a (act brought to the attention of tne Court by the evidence, but not stated upon the answer, will under some circumstances, mow ground for inquiry, before a final decree. 2 CMrke v. Periam, 2 Atk. 333, 340. 3 Ibid. .' 4 Clarke v. Periam, ubi tup., and the caws there cited. 6 Ibid. : Sidney v. Sidney, 3 P. Wms. 269, 276 ; 1 C. P. Coop. t. Cott. 614, n. 6 Lord Donerail v. Lady Donerail, cited 2 Atk. 338. 7 Per Lord Hardwicke, in 2 Atk. 339. , 8 8 Swanst. 174, a. ' ^, CONFINED TO MATTERS IN ISSUE. 539 Ifendant's answer, it was alleged that the plaintiff was not entitled jtothe assistance of the Court, because he had not accounted for divers fees which he had received under a deputation authorizing him to execute the office, and had taken several fees which wert not due, and concealed several instruments and writings belonging to the office. Upon the defendant's attempting to read proofs as to the misbehaviour alleged in such general terms by his answer, it was objected on the part of the plaintiff, that the charges were too neral, as the plaintiff could not tell wliat proof to make against [them, unless he examined every particular fee he had received, and" also every instrument that had come to his hands ; and that the defendant should have pointed out the particular facts in his ingwer, so that the plaintiff might be enabled to know how to clear 1 himself by his proof : and the case was assimilated to that of an action at Common Law for a breach of covenant to repair, where if the defendant pleads that he left the premises in repair, the plaintiff must, in his replication, show particularly what part is out of repair ; and to an indictment for barratry, which may be gene- ral, yet the prosecutor is always obliged to give the defendant a list, upon oath, of the particular matters that are intended to be proved : but the Lord Chancellor held, that although the matters intended to be proved might have been more precisely put in issue, by enu- merating the pai-tiqular facts, yet as they were not intended to charge the plaintiff with any particular sums received more than were accounted for, but to show a general misbehaviour of the plaintiff in his office, so that a Court of Equity should not help him, he thought that, for this purpose, they were sufficiently put in issue. ..... M itiP- ill*' it 'I I lit 4. « ii t The cases in which evidence of particular facts may be given under a general allegation or charge, are not confined to cases in which the character, or quality of mind, or general behaviour of a party comes in issue. The same thing may be done, where the ijuestion of notice is raised in the pleadings by a general allegation or charge. Thus, where the defence was a purchase for a valuable consideration, without notice of a particular deed, but, in order to meet that case by anticipation, the bill had suggested that the de- fendant pretended that she was a purchaser for a valuable conside- ration, without notice, and simply charged the contrary : the depo- ^40 EVIDENCE. ■'■■i' -'Ml sr. ?;=:: iiitiiou of a witness, who proved a conversation to have taken place between himself and a third person, who was the solicitor of the defendant, ar.d the consequent production of the deed, was allowed to be read as evidence of notice.* In such a case, the question whether the party has notice or not, is a fact, which should be put in issue, but the mode in which it is to be proved need not be put upon the recoid : for the rule that no evidence will be admitted, in support of any facts but those which are mentioned in the plead- ings, requires that the facts only intended to be proved shoold be put in issue, and not the materials of which the proof of those facts is to consist.^ Thus, in a case of pedigree, if Robert Stiles is alleged to be the son of John Stiles, that fact may be proved in any mode which the rules of evidence will allow, and it is not necessary to state that mode upon the record. It is upon this principle that documentary evidence, or letters themselves, are not specifically put in issue.' Indeed, a party may prove his case by written or parol evidence, indifferently, and is under no more restrictions in one case than in another. It is not necessary to put every written document in issue;* thus, where a bill charges an agreement for the purpose of establishing a lien, the general rule has been laid down that whatever would be evidence of the agreement at Law is evidence in Equity ; subject to this : that if one party should keep back evidence which the other might explain, and thereby take him by surprise, the Court will give no effect to such evidence, without first giving the party to be affected by it an opportunity of controverting it.^ Although letters and writings in the hands of a party may be proved and used as evidence of facts, yet, if they are intended to be used as admissions or confessions of facts by the opposite party, they ought to bo mentioned in the pleadings,® in order that the party against whom they are intended to be read, may have an opportunity to meet them by evidence or explanation.^ In M'Mahon v. Bwrchell,^ however. Lord Cottenham allowed certain 1 SiiffAM V. 9am;•*<»'%. 6 Pri. 240 ; Mulholland v. Hendrick, 1 Moll. 869. '«"•<«▼ , 1 Moll. 363; arUahon v. Burehell, 2 Phil. H7 : 1 C. P. Coop. t. Cott. 476 ; Langley » p*' M *"■> * ^«»v. 90, 101 ; Graham v. Oliver, 3 B«»v. 124, 129. sli\u ^; 5*- '2'*' ^i Graham v. Oliver, ubi $up. B ,;'*'*°**"» worki on •vldenoe: Taylor, b 173, etteq.; Bast, s. 980, et teq.; Oresley, 289; "wwl, 187, et leq. ''i ■ i- l,..;l. m . 'k 542 EVIDRNr-E. ■:'i m. wr «.A.sa ever, it is sufficient to prove so much only of the allegations i» the bill as are necessary to entitle him to a decree.^ Thus, where the suit is for an account, all the evidence necessary to be read at the hearing is that which proves the defendant to be an accountiug party, and then the decree to account follows of course; an-1 any evidence as to the particular items of an account, however useful they may be in a subsequent stage of the cause, would be irrelevant at the original hearing. For this reason, where the suit is against an administrator, or an executor, all that is necessary to prove, on I the part of the plaintiff, is, that the defendant fills and has acted in that character. This point was much discussed before Lord Gifford M. R., in Laiu v. Hunter^ There the defendant, who had principally acted as executor of the testator, admitted that he had received I personal estate of the testator to the amount of from 35,0001. to 45,000/. ; and the plaintiff, having gone into very voluminou^i evidence to show how much of the personal estate of the testator had come into the defendant's hands, in order to prove that he had received assets to a much larger amount than that admitted by the answer, proposed to enter such evidence as read ; but the Master of the Rolls would not permit it to be done, as the only tendency of 'such evidence was to show the state of the account, which the Court itself could not inquire into, but must refer to the Master, as the proper person for taking the account. The same principle was afterwards acted upon, by the same learned Judge, in Walker v. Woodward,^ where, upon a bill for an account, the liability to account having been admitted by the defendant, he had entered into evidence to prove items of his discharge, but was not suffered to read them at the hearing. Where, however, through inadvertence or negligence, the plaintiff has omitted to prove some particular fact which is necessary to sup- port his case, the Court sometimes will permit him to supply the defect, by giving him leave to prove the fact omitted.* This is fre- quently done in the case of wills disposing of real estates,^ wliere either the plaintiff has relied upon an admission of the will by answer, 1 See, however, Edney v. Jewell, 6 Mad. 165, where an unnecessary statement was required tob« proved. 2 1 KUSS. 100, 102. .. V . .H»nl 3 X Riiss. 107, 110 ; Smith v. Chambers, 2 Phil 221. 226 ; 11 Jur. 369 ; see, however, the obMrvMioni of Sir J. Wiifrain, V. C, in TomJin v. Tumlin, 1 Hare, 241, 245; and see xb. 241, n.; »«e»w Fon^yth v. Ellice, 2 M'N. & G. 2u9, 214. 4 See Soton, 1118. „^ 5 Lechmere v. Brasier, 2 J. 4 W. 288 ; Chichetter, r. Chichester, 24 Be»T. 289. r' CONFINED TO MATTERS IN I8SUE. 543 the Court thinks not sufficiently full/ or where the absence Lrd^ath of one of the witnesses to the will,* or the testator'n sanity," not been proved. The practice of the Court, in this respect, is Inot confined to cases of wills : a cause has been ordered to stand ver, for the purpose of allowing proof of the due execution of a deed, or the death of a party,* or the fact of trading f and we have «fore seen,'' that where the plaintiff has omitted to give due proof Ltthe hearing of the fact of a defendant being out of the jurisdic- Ition, he has been allowed to prove it. So, where the plaintiff had Irelied upon the admission of facts by the answers, and it was held Ithat, some of the defendants being married women, the admissions lin their answers would not bind them, th' 0)urt of Exchequer Uowed the cause to stand over, with liberty to the plaintiff to sup- Iply the requisite proofs And where the evidence read at the hear- ling, to prove the loss of a deed, was held not sufficiently strong to lentitle the party to read secondary evidence of its contents, Sir jThomas Plumer, M.R., gave the plaintiff leave to prove the loss of |the deed more strictly.** In general, orders of this nature are made upon a simple appli- Ication by counsel at the hearing of the cause ; the application may jhowever, be made before the hearing :® in which case it may be made Iby motion,^" in Chambers. • Formerly, when the evidence in causes Iwas taken on interrogatories, the plaintiff was permitted to exhibit Ian interrogatory to prove the fact desired ; now, he is permitted to jprove it, either viva voce, or by affidavit. In Edney v. Jewell}^ the Court, instead of directing an interroga- jtory to be exhibited to prove the fact omitted, directed an inquiry jinto the fact ; and it seems that, in some cases, the deficiency of jproof against infants may be supplied in the same manner,^*^ It is |not, however, the practice to direct inquiries as to any facts which 1 ?mr V. Potttr, 1 Yes. S. 274 ; Belt's Sup. 147 ; and see Hood v. Pimm, 4 Sim. 101, 110. 2»oo(Jt S«on«,8Pri. 613. 3 iJratM V. Winshup. 1 Russ. 526 ; Wallis v. Hodgson, ib. 627, n.; 2 Atk. 56. » Mom T. De Bemales 1 Rubs. 301. 5 ieckmere ▼. Brasier, ubi sup. 8 in(e; Uvghes y. Eades, 1 Hare, 486, 488 ; 6 Jur. 466. ' I uwJffion V. JKerert, 9 Pri. 563. . -- jUrv ^KfTwftom, Jac. 837, 341, .345. ; uJWa*'. /rcA6«tt, 23Beav. 293. ' . , ■• , , 11 6 Mad. 105. 12 See (iuantock ?. Bidlen, 6 Mad. 81, 82 ; Oaicoyne v. Lamb, 11 Jur. 902, V. C. K. B. . ,, ; >. 544 EVroENCE. are the foundation of the relief : such as the execution of a m\\, ( the fact of trading.^ The course, in such cases, is to order the caus to stand over, and direct the proofs to be supplied : in which easel the cause must be again set Jown.^ In Milltr v. Priddon, ^ how- ever, where the plaintiffs claimed to be the children of a certainl marriage, but did not prove that they weie so, an inquiiy wasi directed. i:: 3 :,*^^ jmt^f^Hn^itn ii-V' ri In some cases, the Court, instead of ordering the cause to Ahal over for the purpose of supplying the deficient evidence, will makel a decree a3 to all that part of the case which is in a situation to bel decided upon, and give liberty to prove the rest. This has hml frequently done in the case of a will, where, although it was not! sufficiently proved to effect the real estate, the Court has decreed an! account of the personal estate, with liberty to supply the deficiency I of proof* In Marten v. Whichelo,^ Lord Cottenham, in reference tol cases on this subject, said: "It is impossible to reconcile the cases,] or to extract any principle upon which any fixed rule can oe found- ed. The Court has exercised a wide discretion in giving or refusing J leave to supply the defect of evidence : in doing which, the merits [ of the case, upon the plaintiff's own showing, ought to have a le« ing influence." The last-meriiioned c?ivse was a creditor's suit, where] the plaintiff had taken d. bill pro confesso against one of the defen- dants, who was the executor, but had adduced no evidence of his I debt as against the other defendants, who were the devisees of the I testatorV real estate, and who did not sufficiently admit the debt; and his Lordship refused to allow the plaintiff an opportunity of I going into new evidence again-^t the devisees, and dismissed the bill j with costs against them : as the plaintiff, on her own statement,! appeared to be a simple contract debtr'*, suing the devisees of the real estate more than six years after the debt accnied : although the personal representative had received ample assets, and a judgment de bonis testator is, et, si non, de bonis propriis, had been obtained against him. In Dn.vis v. Davies,^ Sir J. L, Knight Bruce, VC, 1 Lechmere v. Brasier, 2 J. & W. 289 ; Uolden v. Hearn, 1 Beav. 445, 456 : Chapman v. Cdajwwn. 13 Beav. 308 2 Leohmeri> v. Braaier, wdi sup. , 1 M'N. & O. 687 ; and see observations of Lord Truro in Fowler y. ReynaU, 2 M'N. &0.,oW,ii"' 15 Jur 1019, 1021. 4 L'Chmere v. Brasier, 2 J. ft W. 289 ; Rosnter r. Pitt,^ Mad. 166. _ ^^ 6 C. * P. 257, 281 ; see also Simmons v. Simmons, 6 Hare, 360 : 12 Jur. 8, 11 ; IFiKttWMv. if^m 5 Beav, 273, 276. 6 3 De O. ft S. 698. CONFINED TO MATTERS TN ISSUE. 545 lillowed evidence of the due execution of a will to be supplied ; but Ithought that the defendants were entitled to have the evidence sup- plied in whatever manner they might elect ; and, in accordance with heir desire, directed the plaintiffs to bring an action of ejectment.^ ■k^^ Im Section IV. — Of the Ej^ect of a Variance. It is not only necessaiy that the substance of the case made by ch party should be proved, but it must be substantially the same ise as that which he has stated upon the record : for the Court ifill not allow a party to be taken by surprise, by the other side broving a case different from that set up in the pleadings.^ Thus, m specific performance of an agreement, to grant a lease for three lives, cannot be decreed upon what amounts to evidence of an 'agree- nent to grant cnly for one life.^ The principles which guide the ourt, in matters of this description, are clearly stated by Lord edesdale, in his judgment in Deniston v. Little *, wheie his Lord- Up observes, that the general practice of the Court is to compel ties, who come for the oxecution of agreements, to state them as hey ought to be stated, and no^ to set up titles which, when the ause comes to a hearing, they cannot support. We have seen, in a former part of this Treatise, thpt, in bills ffhere the rights asserted are founded on prescription, a considerable pegree of certainty is required in setting out the - laintiff 's case^ ; to fhich may be added, that, in general, the proof must correspond in «rtainty with the case so set out. Thus, the Court of Exchequer, 'deciding upon tithe questions, was in the habit of requiring that he proof of a modus should correspond with the modus as laid in ne bill.* And so, in other cases, where particular customs are pre- nbed for, the evidence is, in genera), required to be in"' conformity 1 1 Sm Seton. 1117, where the cases on the subject of Bupplying defective evidence arc collected. I Alto vtriance generally, tee the following works on evidence: 1 Phillips, 569, et m-q ; Taylor, x. I, ,."'."««?•; Best, 8. 287 : OreKley, 242 ; Powell, 193. I Ht^K [■ ^'^*> 2 Sch. & Lef. 1 ; see also Mortimer v. Orchard, 2 VeH. J. 243 ; Legh v Haver- I Aew, 6 Ves. 463, 457 ; Woollam v Ueani, 7 Yen 211; Denkton v. Little, 2 Soh. ,: Lof. 11, 11.; Ha^'^';^; ^'"'■'■'''A 2 Ball & B. 461 ; DanielH v. Davison, 16 Voh. 249, 250 I'iBBch. &Lef. 11, n. |«SiW«T.ftnwjflfc,8Basrle* Y. 1318; Uhthoff \. Lord Huntingjield;2 ih. «40; cited 1 Pri. 237; irn '■*«»««. 3 Eagle & Y. 706 : 1 Pri. 236 ; Blake v. l^eysic, 3 Dow, 189 : 2 Ea^le & Y. 690 ; *i««rv. Jnefrwn,lY^J. 66 U # ■ ■w 546 EVIDENCE. 5:: W: M !"-«•.• ^'t'^^ i>«m3B with the atateiuent iu the pleadiugs. In The Bean and Chapter of Ely V. Warren ^ however, Lord Hardwicke said, that the Court of Chancery would not put persons to set forth a custom with so much exactness as is rec^uisite at Law, or with so much nicety as the Court of Exchequer expects. We have seen before that, in some cases, where a plaiutitt' has alleged a different agreement, in his bill, from that which ha.s been admitted by the answer, the Court has permitted the plaintiti' to amend his bill, by abandoning the first agreement and insisting upon that stated upon the answer^ ; and when the defendant s( t- up a parol variation from the written contract, it will d \mr the particular circumstances of each case whether that is to defeat the plaintiff's title to specific performance, or whether the Coun will perform the contract : taking care that tlie subject-matter of i this parol agreement or understanding is carried into effect, so that all parties may have the benefit of what they contracted for.^ When, however, there it a mate ial variance in a written agreement, it ' the ordinary practice to dismiss the bill with costs, without prej dice to the plaintiff's bringing a new bill.* In Mortimer v. Orch- ard,^ however, where the plaintiff had prayed the specific peribrm- ance of an agreement stated in the bill, but proved a parol agree- ment which was quite different. Lord Rosslyn, although he thought | the bill ought to be dismissed, yet, as there had been a partial exe- cution of some agreement between the parties, by the building ot a I house, directed a reference to the blaster, to settL; a lease pursuant j to the agreement confessed in the answer. The rules which have just been discusned, relate to the general aim or tendency of the proof to be adduced. There are other rule? [ relating to the medium of proof, independently of its tendency which might properly be introduced in this place, such as the Tfffl- eral Rules : that the best evidence which the nature of tiie case ad mits, ought \o be produced, and that hearsay of a fact is not admis sible ; but a discussion of these rules would extend this Treati*^! beyond all reasonable limits. The reader is, therefore, referred wj 1 2 Atk 190. 2 Ante. 3 London a7id Hirmingham Railway Compan]/ v. Winter, C. k P. 62 : and see Bm»tnn r Wtof* I hur\i Canal Company, 1 C". P. Coop. t. Cott. a.iO : C. P. Coop. 42. 4 Lindsay v. LijmIi, 2 Soli. & I.ef 1 ; Wonllam v. fleam, 7 VeH. 211, 222 : DeniMon v. t(tt/f,2Sc« & Let. 11, n 6 2 Vos. J. 243. the Treai that whal be the rul ble to cas( Seci Having matters w the next t are t Document EFFECT OF A VARIANCE. 647 the Treatises on the Law of Evidence^ ; and it is to be observed, that what he will find to be laid down in any of those Treatises to be the rule of evidence in Ooui-ts of Law, will generally be applica- ble to cases in Courts of Equity .* W" Section V. — Documentary Evidence which jiroves itself. Having endeavoured to direct tlie }>ractitioner's attention to the matters which it will be necessary for him to prove in the cause, the next thing to be considered is the evidence by which such mat- f^^ are to be substantiated. This evidence may be either : — I. Documentary ; or, II. The testimony of witnesses. Documentary evidence consists of all those matters which are vibmitted to the Court in the shape of wiitten documents. It is not. «>f course intended to include in this definition the depositions of witnesses examined in the cause : for althoujjh, by the practice of Courts of Equity in England, the evidence to be derived from the parol examination of witnesses is set down in writing, and brought before the Court in that form, yet this does not vary the nature of the evidence itself : which, being spoken by the witness viva voce to the person by whom he was examined, does not, from tiie circum- stances of its being committed to writmg, for more convenient use before the Judge, lose its parol character. Neither is it intonded to include evidence by affidavit. Such evidence is, in fact, i simple and easier mode by which the parol evidence of witnesses is com- municated to the Court. Some descriptions of documentary evidence are admitted by the Court, without the necessity of any proof being gone into to estab- lish their vaUdity ; whilst others require the support ol parol testi- mony, before they caji he received. It in proposed, in this section, tf* consider documentary evidence of the first description ; and, in the next section, to treat of docu nents which require parol proof 1 Ai to BE«T BViDWOT sRB 1 Phillips, Chap. IX . Taylor, -sn. 363, 397 ; Best ss. 87, 107 ; Greilej-, 247.' An 10 HEAMAT : mt I Phillips. r.i»p. VIM ; Tavlor m. .W, 542 Best, s. I'tT ; Hubhack, 648. 711. ^ Orcley. 304. 325 ; {'owell, 84, d3. - .«oimnij; 1 r^chnicre, 1 Atk. 4i3; Glynn v. Bank of England, t Ves. S 41. .«*■ ^ mn n :?;(< 548 EVIDENCE. All copies of public or private Acts of Parliament, purporting to be printed by the Queen's printer, are admitted as evidence there- of.i Exemplified copies of records in other Courts of Justice, and of the superior Courts of Justice, and of the Courts established here by Acts of Parliament, are admitted in evidence, without extrinsic proof of their genuineness.^ It maybe obsers'^ed here, that questions of Foreign law are questions of fact, which must be determined, in each case, on the evidence adduced in it ; and for this purpose, a decision on a former case, or the evidence then made use of, is not available.^ All Courts, Judges, and other judicial officers, are bound to take judicial notice of the signature of any of the Equity or Common Law Judges of the Superior Circuits or County Courts in Upper or Lower Canada where such signature is attached or appended to any decree, order, certificate, or other judicial or official document.' Amongst the records of other Courts of Justice, copies of which the Court of Chancery is in the habit of receiving as evidence, may be ranked the depositions of witnesses, and proceedings taken in causes in other Courts of Equity of concurrent jurisdiction. The rules by which the Court is governed, in receiving evidence of this description, are the same as those adopted by it in cases where depositions taken in the Court of Chancery in one cause are offered to be read in another.^ - It has been before stated, that the Court of Chancery pays atten- tion to its own proceedings, although they are not actually recorded.'* in illustration of which it may be stated, that all the proceedings of the Court, in the cause, which are required as evidence, may be used as such, without further testimony to establish them than the 1 Con. Stat, of Canada, C. 5, S. 6; Taylor on Evld. ss. 1868, 1371, 1372 ; 2 Phil, on Evid. 186, IM. 2 2 Phil, on Evid. 197 ; Taylor, ss. 409, 1378 ; and see Con. Stat, of Canada, Ch. 80. , 3 Earl A'elson v. Lord Bridport, 8 /Jeav. 627, 654 ; M'Cormick v. Garnett, 6 De 0. M. 40. ^"'JS? see Sussex Peerage Cane, U CI. & F. 85 ; Di Sora v. Phillips, 10 H. L. Ca. 624 ; Taylor 88. 1^, 1281, 1370. Eufflish Courts may now ascertain wliat the foreign law is, by sending cases WMw opinion of foreign courts ; but, unl.ss they are in countries under ihe government of ™^^'r°^ a convention must first be entered into willi the foreign government: 22 & 23 Vic. c. 63 ; « 4 * Vic 0. 11. It is believed th"*. no such convention has yet been made. 4 Con. Stat, of Canada, C. 80, S. ^. 6 See post. 6 Antv. . ' DOCUMENTARY EVIDENCE WHICH PROVES ITSELF. 549 production of th*: proceeding itself, or of an office-copy of it, signed by the officer in whose custody such p^ oceeding properly is, accord- ing to the practice of the Court. According to the former practice of the Court, it was necessary, when any proceedings in one cause were to be given in evidence in another, that the foundation for the production of them should be laid, by proving the bill and answer in the cause in which they were taken. Gradually, however, this rule has been relaxed, and, Our Order 175 provides, that " A part7 shall be entitled upon notice without order, to use depositions takti in another suit, in cases T^here under the former practice he was e^ititled, upon obtain- ing the common order for that purpose to use such depositions." A decree or order of the Court of Chancery, determining a matter of right, is good evidence as to that right, not only against the party against whom the decree was made, but against all those claiming under him.^ But although a decree between other parties cannot be read as evidence, yet it may be read as a precedent.^ And it is not in any case necessary, in order that it should be admissible as evi- dence, that the parties to it should have filled the relative situations of plaintiff and defendant : if the present plaintiff and defendant were co-defendants in the former cause, the decree in that cause may be read, though not as conclusive evidence.^ "It frequently hap- pens," observes Lord Hardwicke, " that there are several defendants, all claiming against the plaintiff, and having also different rights and claims among one another : the Court then makes a decree, settling the rights of all the parties ; but a declaration for that pur- pose could not be made, if this objection (viz., to receiving the decree as evidence, because made between co-defendants,; holds : which would be very fatal, as it would occasion the splitting one cause into several."* ;;3^ M ■ i The depositions of witnesses, which have been taken in another cause, may, as well as other proceedings, be read at the hearing, under an order to be obtained for that purpose, if the two suits are 1 ^rough v. Whichcot' , 3 Bro. P. C ed. Toml. 595.« i AuiiUn V. Suihulap 7 i6 9. 1 il^^" '■ ^ouUerc-s' Company. 2 Yes. S. 89 ; Bolt's Sup 209. ♦ "w,; see also, CAomt«y v. Lord Dunsany, 2 Sch. & Lef. 710, n. L, Rum. 45, 03. I'arqxihrMa v. Seton, ,'. 4 550 EVIDENCE. 'Is »s c2 c:: * between the same parties or their privies, and the issue is the same ;' and such depositions are admissible in evidence in the former cause* Thus, evidence which has been taken in a cross cause may be read at the hearing of the original cause,' and vice versa, provided the point in issue is the same in each case. Where the matter in issue is not the same, the depositions taken in one cause cannot be read in the other ;* and even where two suits related substantially to the same mattei-s, one suit being instituted by the first tenant for life in remainder, and the other bv the first tenant in tail in remainder, Sir J. L. Knight-Bruce, V.C., . ...assd to allow the evidence, taken in one suit, to be used in the other.'' Where the person, against whom the evidence is offered, was neither a party to such other cause, nor privy to a person who was a party, the depositions taken in that caae cannot be read ; thus, where a father is tenant for life only, deposi- tions taken in a cause to which he was a party, cannot be read against his son who claims as tenant in tail.* The rule with regard to reading depositions in another suit, appears to be the same as that with respect to reading verdicts at Common Law, namely, "that no body can take a benefit by it, who had not been prejudiced by it had it gone contrary."^ Thus, it has been held, that if A. prefers his bill against B., and B. exhibits his bill against A. and C, in relation to the same matter, and a trial at Law is directed, C. cannot give in evidence the depositions in the cause between A. and B., but the trial must be entirely as of a new cause.* This rule appears to be somewhat at variance with what is stated in OoJce v. Fountain^ to be a common one, namely, that where one legatee has brought his bill against an executor, and proved assets, and afterwards another it goatee brings his bill, that the last-named legatee should have the bcTiefit of the depositions in the former suit, though he was not a party to it ; but it is to be observed, that the case of the legaifise is different from the case of a plaintiff inordinary 1 Mackvorth v. Penrose, 1 Wck. 60 ; Lade v. Lingood. 1 Att 203 ; Humphreyg v. Petuam, 1 !*■ i C. 580, 58«: Hope\. Liddell (No. 2), 21 Beav. 180; Wmiams v. Wiiliann,, 10 Jm. N. S. W' 12 W. R. 663 V C. K 2 WiUiams v. Williamn, 10 Jur N S. ai>8 : 12 W. R. 6«S. V. C. K. ^ $ Lubiere v. Genou, 2 Ves. S. 5V9, nr whKh caso the criMi Ml had been dismissed. For fonn ol uraer * see Seton, 1275, No. 2. 4 ChrUtian v, Wrenn, Bunb. 321. ,..>„„, o ._ in/i 5 Blagrave v. Blagrave, 1 De G. & S. 2S2, 2.59 : U Jur 744 ; and see Hope v. Luidell, 21 nen. iw 6 Peterborough v. Noffolk, Prec in Ch. 212 ; Coke v. Fountain, 1 Vera. 413. 7 Gilb. on Evid. 28 ; Buller, N. P. 229 ; 2 Phil, on Evid 8. ,. . . .^H.n« 8 Rushworth V. Countess of Pembroke, Hardrea, 472 For the reason, why a verdict w not «viaen« for or against a person who was not a party to it, see 2 Phil, on Kvid. 8. 9 Uhiaup. DOCUMENTARY EVIDENCE WHICH PROVES ITSELF. 551 Lircumstances ; for although the legatee was not actually a party to Iheorififinal suit, yet'he was so virtually : his interest in the first Lit having been represented by the executor. In fact, in the case if the legatee, the suit is in pari materia ; and, with respect to the ubject in dispute, the plaintiff in the second suit stands in the same Situation, with regard to the defendant as the plaintiff in the first The same principle appears to have been acted upon in other ises, besides those of legatees. Thus, in Terwit v. OreshaTn,^ depositions tak(in in- an old cause, where the same matters were Lder examination and in issue, were permitted to be read, although [he plaintiff and those under whom he claimed were not parties to Ihe former cause : inj smueh as the teri^e tenants of the same ands were then parties ; and so even at Law, in the case of tithes, b answer to a bill filed in the Court of Exchequer, in a suit Instituted by a vicar against the rector and others, owners of the lands, iras evidence iu an action for tithes, by a succeeding rector, against [he owners and occupiers of the same lands.^ In like manner, in a se before Sir Anthony Hart, in Ireland,^ depositions which had been aken in a suit by one tenant in c jmmon against another were ad- Qitted ill evidence, in a suit by another tenant in common, against [he same defendant, in such cases, however, it must be proved, [hat the depositions are touching the same land or tithe.* It seems not to be important what character the individual, [gainst whom the depositions in the former suit are offered, filled in [hat suit, whether that of plaintiff or defendant, provided he had,, in luch character, an opportunity of cross-examining the witness. If he was a party to the first suit as a co-defendant, and becomes a [laintiff in the second suit, making his co-defendant in the first suit \ Jetendant, he may, if such co-defendant sets up the same defence hat he did in the original suit, read the evidence taken in that suit Igainst such co-defendant. Thus, where the ci'editors of a testator [led their bill against the residuary legatees, and also against a [urchaser froin the testator, praying to have tfieir debts paid,, and he conveyances, alleged to liave been executed by the testator to J 1 ' 'iia. Ca. 73. Vidiij Dartmouth V. Roberts, 19 Kasi, 334 ; see also Travis v. Challcnor, 3 Owni. 1237; Ashby v. 1 1 »"'**'■• I?- '-39 ; Benson v. Olive, 2 GwiU. 701 ; &>»•/ of Sussex v. Temple, 1 Lord Raym. 310. jBVriKv. Frere, 2 Moll. 167 ; and see Bighm of Lincoln v, F.Ui.<, lUmb. 110. • wwon V. Ohw, Bunb. 284 i- ••li i .**■ il i !- ■ f 552 EVIDENCE. 4 tit Ips^ l»- 8 the purchaser, 8et aside for fraud, and obtained a degree accordinglvj and afterwards the residuary legatees filed another bill against tlj purchaser, praying for an account of the residue, and to set asidej the conveyances : upon the cjuestion arising, whether the deposition taken in the former cause, as to the fraud in obtaining the con-l veyances, could be read in the second cause, for the legatees againsJ the purchasers, who were co-defendants in the former cause; it was! held, that as there was the same question and the same defence in| both the causes, the depositions ought to be read.^ Where a cause had been set down for hearing on motion for decree, the Court allowed the plaintiff to use the examination oil the defendant, taken in another cause ; but gave leave to thel defendant to file affidavits in explanation, subject to the right off cross-examination.^ It may be stated here, that where the depositions of witnesses inl another suit are offered to be read at the hearing, against persons! who were parties to such other suit, or those claiming under thcmJ it does not appear to be necessary that the witnesses, whose! depositions were offered to be read, should be proved to be dead. This] appears to have been the effect of the determination of the House ofl Lords in the City of London v. Perkins,^ and of Sir John Leach, V.C., in Williams v. Broadhead.^ In the subsequent case ofCarrim ton V. Cornock,^ however. Sir Lancelot Shadwell, V. C, seems toj have entertained a different opinion from that expressed by Sir! John Leach, in Willianis v. Broadhead ; and it is to be remarkedj that at Law, the depositions of a witness, taken in a suit inl Chancery, cannot, without special order, be read, if the witness isj alive, even though he is unable to attend by reason of sickness.* Some doubt seems to have been, at one time, entertained whether] the depositions of witnesses, taken in a cause where the bill 1 been subsequently dismissed, could be read at the hearing of] another cause ; and the rule appears to have been laid down, thatj if the dismissal was upon merits, evidence of the facts which have! l?een proved in the cause may be used as evidence of the same facts! 1 Nevil V. Johnson, 2 Vem. 447 ; and see AakeiP v. Poulterers^ Company, 2 Ves. S. 89, 90. 2 Watson v. Cleaver, 20 Beav 137. 3 3 Bro. P. 0. ed. Toml. 602. 4 1 Sim. 151. „ ,, ,. 5 2 Sim. 567 ; and see Blagrave ▼. Blagrave, 1 De O. & S. 252 : 11 Jur. 744 ; Lamenee v. .Wflu«.'I Drew. 472, 480. 6 a Phil, on Evid. 124 : Taylor, s. 446. ^ ' 1 DOCUMENTARY EVIDENCE WHICH PROVES ITSELF. 55^ in another cause between the Name ])artie8^ ; but where a cause has been dismissed, not upon merits, but upon the ground of irregularity, (as, for instance, because it comes on by revivor, where it ought to have come on by original bill,) so that regularly there was no cause in Court, and consequently no proofs properly taken, such proofs cannot be used.^ If, however, upon a bill to perpetuate testimony, the cause should be set down for hearing, and the bill dismissed be- cause it ought not to have been set down, the plaintiff may, not- withstanding the dismissal, have the benefit of the depositions.* When proceedings or depositions in another cause, in the Court of Chancery, are to be read as evidence at the hearing, it will be suffi- cient to produce the copies of them. Such copies, however, must be signed by the proper officer : otherwise, they cannot be read ; and if, at the hearing of a cause, it is found that the copy of a pro- ceeding, which one party relied upon as evidence, has not been properly signed, the Court will allow the cause to stand over for the purpose of procuring the proper signature.* Where a record or other document, in the custody of the Record and Writ Clerks, is required to be produced out of the Court of Chan- cery or its offices, an order authorising such production must be obtained, on motion of course, supported by an affidavit to the effect that such production is necessary as evidence ;^ but, as a rule, no such order will be made for the production of original documents, if certified or examined copies will answer the purpose.^ No suh- pam need be issued ; but the officer will attend on the order, and a memorandum bespeaking his attendance, being left with him, and on the office fees, and his reasonable expenses (if any) being paid.^ With respect to the production of proceedings in Chancery, upon tnais in Common Law Courts, it may here be observed, that there 19 a difference between criminal and civil cases : in the former, it is necessary that the original record should be procured ; in the latter, a copy signed and certified by "the officer to whose custody the ori- 1 Lubitre v. Oenou 2 Ves. S 579 ; M'Intngh -'■ Great Western Railway Company, 7 De G. M. & 0. 737. ': 'I'^f'^i*' V, Middleton, 1 Cha. Ca. 173, 175 ; 3 Cha. Rep. 22. am V. Hoddegdon, 2 P. Wms. 162 , .see also Vaughan v. Fitzgerald, 1 Soh. & Let. 316. J ittwney-Oeneral v, Milwaxl. ubi mp. 6 Brwlhwaite's Pr. 6U ; Gresley. 192. » Br»ithwaite'g Pr. 514 ; Attorneg-Qeneral v. Ray, 6 Beav 335 : Anon, 13 Beav. 420 ; Biddulph v. Lord Camoys, 19 Beav. 467. ' Braithwaite's Pr. 513, 514 ,1*. i II 'A TTf, 554 EVIDENCE. * ■ ,1 >*«• ti* s. ^nal M entrusted,* or proved by the perHon putting it in to have been examined with the original record, is Huflicieut- ; and for this reason, an application for production of the oiiginal depositions, at the trial of a civil action, was refused.^ The documents which have been before enumerated as requiring no evidence to prove them, are all, either in a greater or less degree, public documents. Private documents which are thirty years old from the time of their date, also prove themselves.* This rule ap- plies, generally, to deeds concerning lands, and to bonds, receipts, letters, and all other writings : the execution of which need not be proved, provided they have been so acted upon, or brought from such a place, as to afford a reasonable presumption that they were honestly and fairly obtained and preserved for use, and are free from suspicion of dishonesty.^ Lord Chief Baron Gilbert, however, upon this point, says, that " if possession hath not gone along with a deed, some account ought to be given of the deed ; because the presumption fails where there is no possession"^; and he adds a caution, that " if there is any blemish in an ancient deed, it ouglit to be regularly proved ; or where it imports a fraud : as, where a man conveys a reversion to one, and afterwards conveys it to another."'^ The rule of computing the thirty years from the date of a deed, is equally applicable to a will.^ Some doubt appears formerly to have been entertained on this point, on the ground that deeds take effect from their execution, but wills from the death of the testator.' In Rancliff v. Parkirts}^ Lord Eldon observes, that, in a Court of Law, " a will thirty years old, if the possession has gone under it, and sometimes without the possession, but always with possession) if the signing is sufficiently recorded, proves itself. But if the sign- ing is not sufficiently recorded, it would be a question whether the age proves its validity ; and then, possession under the will, and 1 14 & 16 Vic. c. 99, 8. 14 ; Reeve v. Hodson, 10 Hare, App. 19 : ante. « 2 2 Phil, on Evid. 208,209 ; Taylor, ss. 1379, 1382—1384. 3 A ttorney-General v. Bay, 6 Beav. 336 ; see 3 Hare, 335. 4 2 Phil, on Evid. 245 ; Taylor ss. 74, 75. „, „ 5 2 Phil, on Evid. 246 ; Taylor, s. 75 ; see also, aa to letters, Fenwick v. Reed, 6 Mad 7, 8 ; Attnm)!- General v Stephen*, 6 De G. M. & O. Ill : 2 Jur. N. S. 51 6 Oilb. on Evid. 89 ; and see Taylor, ss. 74, 699. 600. 7 GUb. on Evid. 89 ; and see Tayl r, s. 74. _ .„ 8 Man v. Rieketta, 7 Beav. 93, 101 ; Orange v Piek/ord, 4 Jur. N 8. 649, V. C. K. : Doe v..Bvr^js^ '"> IMAGE EVALUATION TEST TARGET (MT-3) :/. .> ^ 1.0 1.1 ■50 ^^ 2.2 ■u U ■ «0 11:25 i 1.4 — 6" 1 2.0 m 1.6 t Hiotographic .Sciences Corporation m ^ JV <^ 33 WBT MAIN STRUT WIBSTIR.N.Y. USM (716) •72-4S03 0^ '^ ST :V W "\ 956 DOCUMENTARY EVIDENCE. ¥: '•*''" M M tS This rule, although general, admits of necessary exceptions, tad perhaps does not apply where the will is not whoUy, but only par- tially, in question.^ The rule also does not apply, in cases where one of the witnesses is dead, or is abroad* : in which cases, proof of his hia,ndwriting has been held sufficient.' It seems, however, that in such a case, the more regular course is not to declare the will proved, but to enter the evidence of the witnesses as read, and then to direct the trusts of the will to be carried into execution.* Where a witness has become insane,^ or has not been heard of for many years, and caimot be found, his evidence has been dispensed with.' It is also necessary, in Equity, where the object of the suit is to e<:^L'lish a will against the heir, to prove the sanity of the testator.' We have seen before,^ that in some cases, where the proof of a willl ia ''^elective, leave will be given to supply the defect at the hearing f [ ja»d we have also seen, that it is the common practice of the Courtl to caiTy the trusts of a will into execution, without declaring thel will well proved.^** Where the heir admits the will, the Court willj establish it, without declaring it well proved ;*^ but the admission ot'j a will in the separate answer of a married woman, who was thel heiress at law, has been held insufficient to enable the Court to| declare the will established.^* The Court of Chancery will establish a will made and proved inl the colonies, on the production of a duly authenticated copy of it:j provided the due execution and attestation of the original are proved! by the attesting witnesses.^' The rule that, where a will is to be established against an heir, in must be proved by all the witnesses, or by producing evidence ofl 1 Per Lord Eldon, in Bootle v. Blundell, iibi tup. ' ' " ' ' 1 S Ibid. S Lord Carringten v. Payne, 6 Yen. 404, 411 : ae« alio Bitting r. BrookOfank, cited 19 Vri. 505 ; raj Herbert v. FiUherbert, 4 Bro. C. 0. 281 ; tud Orayton r. Atkifuon, 2 Vee. S. 454, wlwrelt r held, thftt a commiwion ahould have been sent to examine the wItneM abroad ; but tne nil< ib / Carrington v. Payne geema to be the one now acted upon : 8«t*n, 227. 4 Hare v Hare, 6 Beav. 62S 880 : 7 Jur. SS8. 5 Bemett v. Taylor 9 Yes. 381. A Jamet v. PameU, T A R. 417 ; ITKenire v. Fra' r, 9 Vee. 6. 7 Harrit t. Ingledew, 8 P. Wms. 98 -.WaUie v. Hodgeton, 2 Atk. 66 ; Seton 228. 8 AnU. „ 9 Chieheiter v. Chieheiter, 24 Beav. 289, where the will waa allowed to be proved vtM tctiUti hearing ; see however Seton, 228 ; and Smith v. Blaekman, ante. 10 See Ante: Ord. Vll. 1. Seton, 228; Binjfield v Landtert, 1 DickliS7; Bird t. B^dUr^ n. ; FUtherbertv. FiUherbert, 4 Bro. C. C. 281 ; Wood v. Stane, 8 PrI. 618 ; Bovuv, *»<»^^, Kay,71: 8De O. M. &a. 817: 18Jur 206:8. C.nom CoMmghy. Boyie,9a.h. Oh.\.li*^ V, 8 878. 11 Seton, Of. For form of decree in such eaae, aoo ib. S84, No. S. 12 Bnym t. Hayvard, 1 Hare, 482 ; ante. M Band ▼. Maeniahon, 12 Sim. 663 ; 6 Jur. 460. WHICH DOES NOT PROVE ITSELI' 667 ^eir death and handwriting, does not apply when proof of the will required for other purposes : iu such cases, one witness to provo it I sufficient.^ The rule, that all the witnesses must be examined, extends also to he trial of an issue devisavit vel non before a jury.* In Tatham v. fright,' however, where the bill was not filed by the devisee to stablish the will, but by the heii to set it aside, the defendant called Le witness, and produced the other two, offering them to the plain- [iff to call and examine them, which he declined, not wishing to oake them his own witnesses : upon a motion for a new trial, the ause was held to have been suiHciently tried. Formerly, whenever the heir at law was a pa,rty to the suit, he iras entitled, as a general rule, to an issue devisavit vel non ,** but under the present practice, the Coui-t of Chancery has power,* to determine the question itself, either with or without a jury, as it aay think fit : though it may direct the question to be tried at the Where an original will is required to be produced in the Court of Chancery, the attendance with it of the proper officer, in whose bstody it is deposited,* may be procured, as in the other cases fhere the production of an original record, or instrument in the ature of a record, is required. There are several cases in which a Court of Elquity has established i will, without the production of the original, where the fact of the I having been proved and retained abroad, or other circumstances,' »ve rendered it impossible to bring the original before the Court ; lit it seems that, in such cases, strict proof of the execution and station must be given, unless they are admitted, or unless the is old enough to prove itself^ The contents of the will must I proved to the satisfaction of the Court ; and, in the absence of original, there are various means of secondary evidence appli- 1 CwMnnon v. Cruiie, t Moll. 832. fW«r(m r. PmbtrtM, 11 Ves. 68 : BootU t. Bl%mdBU, IB Vaa. M» : O. Ooop. 187. I >»B.»M.1,17. ; M« JTm t. RieketU, 7 Bmt. 08, 102 : 8 Jur. 169 , S C. nam. RieketU r. Turquhand 1 H.L. Ca. 47S. I Ccn. 8tot U. C. ch»p. 13. I A wvima duoei teeuK wUl be inued for thii purpoM : Wigan r. Ruwland, 10 Hmv, Ap. 1% !• ; I Alu T. MediiooU, dtod 4 Bmt. lU. *'m't. JficmoAoii, 19 Sim. S83, 806 : 6 Jur. 4fi0. 1 i iM JS"t It';' 558 DOCUMENTARY EVIDENCE. •-'■'.'•tg sis ai« m ''•'3 cable for this purpose. In Pullan v. Rawlins} sufficient second evidence was given, by means of a copy admitted to probate in thu country, certified by the Registrar of the place where the orig was deposited. Secondary evidence of the contents of written documents admitted, both at Law and in Equity, when the party has not th«| means of producing them, because they are either lost or destroye or in the possession or power of the adverse party. At Law, whe it is not known till the time of trial what evidence will be offer on either side, a party, in order to entitle himself to give second evidence of the contents of a written document, on the ground of iti being in the possession of his adversary, ought to give him notio to produce it : for otherwise, iion constat, that the best evidence] might not be had. But even at Law, when, from the nature of th«j proceeding, the party must know that the contents of a writti instrument in his possession will come into question, it is not ne sary to give any notice for its production ; and, therefore, in an action of trover for a deed,^ or upon an indictment for stealing a bill oil exchange,^ it has been held, that, without previous notice, parol evidence may be given of the contents of the instrument which is the foundation of the proceeding.* The same exception to the general rule appears to be equally applicable in the Couits of Equity : for there it is lield, that whenj either from the pleadings or depositions, a party is apprized that is the intention of the opposite party to make use of seconds evidence of the contents of a document in his possession, sue secondary evidence may be used at the hearing, without serving thd party in whose possession it is with notice to produce it Thi^ point was much considered by Sir William Grant, M. R., in Fo V. StricMand,^ where a witness, who had been examined on the of the defendant, deposed to the contents of a certain letter whic had been written by the plaintiff to the witness, which the witne stated that he had himself subsequently returned to the plaintiffJ who immediately threw it into the fire and destroyed it. At the hearing, an objection was taken, on the part of the plaintiff, to thej 1 4 Bmt. 119. where the oMea nw collected. 2 tfouT HaU, 14 Eut. 274. S AUMte CMe, 1 Leuh, 294. 4 SeeT«yloronEvid. as. 378:870. ^,p • 2 Mer. 401,485: wd see Lyna v. Loelwood, 2 MoU. 821 : itavixmr. AoMm. 8 W. R. tn. i* «" . 1 I 1 559 WHICH DOES NOT PBOVE ITSELF. uimissibility of this uvidence, on the ground that there was no proof of the letter being lost or destroyed, nor of any notice given to the plaintiff to produce it ; but the objection was overruled by the Master of the Rolls, on the ground that the plaintiff must have seen, by the depositions, that the evidence of the case, set up as a defence to the bill, consisted of certain written communications which had taken place on the subject of the suit, and that it was impossible, therefore, that he could have been taken by surprise, or could not be prepared to produce any letter that might be in his possession It is right, however, to state, that, in Hawksivorth v. dewsiuip} Sir Lancelot Shadwell, V.C, came to a decision which was contrary to that in Wood v. Strickland^ ; and that, in Stulz v. Mz? he referred with approbation to his own decision in Hawkea- wwih V. Dewsnap : though he expressed himself willing to have the point again argued, in order that the practice might be settled. The point, however, was not argued, the objection having been waived. It may be mentioned, with reference to this subject, that, in Parkhurst v. Lowten,* Lord Eldon appears to have thought, that when a defendant admitted a deed to be in his possession, but de- clined to produce it, on the ground that it might convict him of simony, or any othe criminal offence, secondary evidence of its con- tents might be received. Where written documents are not admitted, and do not prove themselves, they must be proved by the same evidence as at law^ : the evidence, however, being taken according to the practice of the Court of Chancery. Where an instrument, to the validity of which attestation is not tetjuisite, has been attested, such instrument may be proved by ad- mission, or otherwise, as if there had been no attesting witness thereto" ; and it is not requisite to prove it by the attesting witness, except in the case of ex parte applications : on which the evidence of the attesting witness will still be required,' unless it can be shown that there is a difficulty in procuring it.® ICIMtSiiiLMO. Hi-ia.4«0. iSwante. S i Mer. m. i 2 Swuist. SIS. A Com. Law Procedure Act, h. 212. 1 5* 5?""' ^ •'"'• N- 8- 222 ; 8 W. R. 312, V. C. K. ; Pedder y. Pedder, cited Seton, 16. I B "{J"i^° •'"'• ^ S. 673 : 12 W. R. 078, V. C W. ; Jearrard v. Traemj, 11 W. R. 97. V. C. K. IB nt HaU, 9 W. R. 77B, v. 0. K., whore no solemnities were required for the execution of a power. » fund wm directed to be paid out of Court, witliout the evidence of the attesting witnMi; "Xi lei Taylor, s. 16W. -• . w 560 CVIDENCB. lit. Order 156 provides that " After replication in filed, any party ma? call on the other by notice to admit any document, saving all just exceptions ; and in case of refusal or neglect to admit, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the hearing the Judge certifies that the neglect or refusal to admit wu reasonable ; and no costs of proving any document are to be allowed, unless such notice is given, except in cases where the omission to give the notice was in the opinion of the taxing officer a saving d! expense." Our order 157 that " The notice may be in the form set forth in schedule I. hereunder written, and is to be served not leaf) than two clear days before the day appointed for inspection."* These orders are taken from the Imp. Stat. 21 & 22 Vic. c. 27, s. 7, which however is limited to cases " in which all parties to the suit are competent to make admissions.' Admissions cannot be made on the part of an infart, unless perhars where the admissions are for his benefit* ; but assignees in b; Kruptcy, and a married woman whose husband was a co-defendant, were held to be competent under the corresponding section of the English Act.^ The order has been held to apply to all documents the party intends to adduce in evidence, and is not confined to such only as are in his custody or control* ; including foreign judgments^ ; and documents the validity of which is directly in issue." 1 For hedul« I. iM Orders 2 Daniell's Pr. 167. 8 ChureUiil v. Collier, 1 N. R. 82. 4 RrUUrv. Chapman, 8 M. & W. 388. 6 Smith T. Bird, 3 Dowl. 641. 6 Spencer v. Bororngh, M. & W. 425. "» w PROVING EXHIBITS AT THE HEARI^O, UNDER AN ORDER 661 giCTioN Vll.— Proving Eochihita at the Hearing, under an Order. Written documenta, essential to the justice of the cause, may in certain cases be proved at the hearing as exhibits, viva voce, or by affidavit* This course may be adopted, where the cause is heard on bill and answer,'* or where the documents have not been proved be- fore the evidence in the cause is closed. In this manner may be proved, as exhibits, oiRce-copies of records^ from any of the Superior Courts, or of grants or enrolments from the rolls or other records dei)osited in the Public Record Offices, or of records or proceedings from Courts of inferior jurisdiction. Deeds, bonds, promissory notes, bills of exchange, letters, or receipts, of which proof must be made of the handwriting of the peraons writing or executing the same, are all considered as exhibits* and may be proved at the hearing.* With the exception of documents coming out of the custody of a public officer having the care of such documents (which are proved by the mere e:ft,mination of the officer to that fact,) no exhibit can thus be proved that requires more than the proof of the execution, or of handwriting to substantiate it : if it be anything that admits of crass-examinati(^n, or that requires any evidence besides that of handwriting, it cannot be received.^ This rule is strictly adhered to ; 1 in many cases, where an instrument which, iwimq, facie, appears >jbean exhibit, requires more .formal proof, it cannot be received I as one. Thus, in Earl Pomfert v. Lord Wiridsor,^ Lord Hardwicke 1 The practice of proTini; such documents by afltdavit was introduced by the 4Srd Order of Augast, 1S41: Saiiil. Ord. 880: S Beav. xxv., which directed that, " In cases in which any exhibit may, by the present practice of the Court, be proved viva voce at the hearing; of a cause, the same may be proved bv tlie affidavit of the witnuHs who would l>c uuni))etent (o prove the Hame viva voce at the ntaring. Th s order ig not included in the Coiisolidated Orders ; but the Prel. Ord. r. 5, which prescrt-es any estabiished pra4|ice originated in, or Hanctioned by, the Orders thereby abrogated, would, it is conceived, autnorisc the adoption of the practice, where necessary : see Seton, 14. A iimilar practice prevailed in England when tliu English nnicticc was established in thLs Province, ud it is presumed, is still in force. See Killaly v. Qranam, 2 Grant, 281, to this effeot ! Anlt : Rowland t. Sturgit, 2 Hare, 620 : Chalk y. Raine, 7 Hare, 893 : 13 Jur. 081 ; NtvUU T. FiUgtraid, 2 Dr. & War. 530 ; Wyatt's P. R. 219 ; eontra, Jonei v. Oriffith, 14 Sim. S62: 8 Jur. 788. S The ulflce-copies here mentioned are the copi App. 14. 6 Maher v. Hohhs, 1 Y. & C. Ex. 585, 686 7 Attomey-Qeneral v Pearson, 7 Sim. 309, - U > ■ ''^ PROVING EXHIBITS AT THE HEARING, UNDER AN ORDER. 663 pri!\ciple, in the case of Rowland v. S^urgis} the plaintiff, in a fore- closure suit, was allowed to prove by affidavit the mortgage deed under which he claimed, where it was neither admitted nor denied by the defendant. Order 176 provides, that " At the hisaring of any cause, or of any further directions therein, affidavits oi" particular witnesses, or affi- davits as to particular facts and circumstances, may be used by con- sent, or by leave of the Court ; and such consent may be given on behalf of persons under disability, with the approbation of the Court." It is however, necessary, in order to authorise the proving of an exhibit at the hearing of a cause, that t le party intending to make use of the exhibit should previously obtain an order for that pur- pose* This order is never made on the application of the adverse party, but may be. obtained, by the party requiring it, on motion of course,* and it may be granted during the hearing of the cause .•* in which case, the cause will either be ordered to stand over for the purpose of enabling the order to be served and acted upon, or, if the witne&s is in Coui-t, it may be acted upon immediately. The order, when drawn up, must describe minutely, the exhibits to be proved ;^ and it is always made, as of course, " saving all just exceptions."^ " » The order being drawn up, passed, and entered, a copy thereof must be served, in the usual manner, upon the adver se solicitor two days previous to the hearing of the cause.^ When the cause is called on, the original order, the exhibit described therein, and the witness to prove the same, must be produced in Court ; and the Registrar then administers the usual oath and ex- ammes the witness f or, if proved by affidavit, the order and exhibit, must be produced with the affidavit.* 1 1 Hue, 620 ; contra, Janet v. Griffith, 14 Am. 262 ; 8 Jur. 783 ; and see ChaVt v. Raine, 1 Ban, »9S;13Jur. 981. i Hinde, 370 ; Clare v. Wood, 1 Hare, 314. The order may be obtained after the affidavit, in proof of the exhibits, is made : S. C. 3 Sep (Tntou v. Budgei, 1 Atii. 444. For form of order, see Suton, 1287, No. 8. i Bank v. Parquet, Amb. 146. i At, if I deed, the date and parties' names ; if a letter, the date, and the names of the puties by whom it was written, and to whom it was addressed ; Oresley, 188. « Hinde, 870. ' iWd.; Oresley, 188 ; Ord. III. 1. 8 Hinde, s71 ; Bowser v Colby, 1 Hare, 132 n. (a.) A witness may be examined to proTO exhibiti, uough examined before in the cause: Neep v. Abbot, C. P. Coop. 191. > Tlie order should be entered as read ia the decree : Seton, 14 ; ib. 24, No. 9. The RcKiitiw wiU uxiorM each exhibit produced in evidence ; for a form, see Seton, 20. 1 'Ar-i:^ Vi 564 EVIDENCE. . I C*^ ^*^i* :3»t I3 r No documents but those mentioned or described in the order, can be thus proved at the hearing •} and as the order saves just excep- tions, all objections which can be taken to the admissibility of the document as evidence, may then be urged bj' the opposing party. The attendance of an unwilling witness, to prove an exhibit at the hearing, may be enforced by suhpoena,^ and unless an order to prove viva voce at the hearing has been obtained, an order for leave to issue the auhpcBna appears to be necessary, and may be obtained on motion of course.^ The subjjc&ena is prepared and issued in the manner hereafter explained ;* and is made returnable at the time and place specified in it ; being usually the day on which the cause will be in the pape^ for hearing, and the Court of the Judge who is to hear it.^ The order to prove viva voce, or to issue the 8uhp Bopkin T. Hopkin, 10 Hare, App. 2 ; and see cases collected, 2 C. P. JCoop. t. Cott. 1(4, n. ,vi 5 PerTarner, L. J in Foster v. Harvey, <« N. R. 38 : affirming 8. C. 11 W. R. 899, V. 0. W. ; diss. Knight-Bruce, L. J. -o . 8 1 Dick. 150 : DAA nlan I *' .:i 3 *! wuj, u Menu, appoint a special examiner, and the evidence must be taken aa a depoaition': Dre- »n r.Drevon, 12 W. E. O^, V. 0. K. As to the mode of taking evidenoejlbefore an «xaminer I f ^^ iff 570 AFFIDAVITS AND EX-PARTE EXAMINATIONS ff= :ai'* cirj *5f the seal or signature of a notary public or other person authoria to administer an oath,^ it will require some evidence that the pereoii whose seal or signature is affixed, actually fills the character bj assumes. This may be effected, either by the production of affidavit by some person resident in this country who can depose tol the fact of his filling that character, or by the certificate of somJ British minister or consular agent, or of some public officer of the! country in which the transaction took place, competent to givel such certificate ; and in the latter case, the certificate must be veril fied by the certificate of some British minister or consular agent,! or by the affidavit of some impartial person, cognizant of the fact| that such public officer is what he assumes to be.^ Where it appeared that no commissioner jinder the statute fori taking affidavits in Lower Canada to be used in Upper Canadal resided nearer than 210 miles from a place in Lower Canada where! an affidavit of service was to be made, an order was made directing the affidavit to be sworn before one of the" ordinary commissioners! for taking affidavits in Lower Canada.^ This Statute (26 Vic. C. 41. S. 1.) provides that the Govemormay| appoint persons to receive affidavits in Great Britain and Ireland, or in any colony or dependency thereof, to be used in any of the I Courts of Canada, Sec. 3 provides ; 1. That oaths administered out of Canada before any commissioner authorised by the Lord Chancellor to administer oaths in Chancery in England : or, 2. That oaths administered before a Notary Public or Mayor, or chief Mag- istrate of any City, Borough, or Town Corporate in Great Britain or Ireland, or in any colony of Her Majesty, or in any foreign country, and certified under the Common Seal of such City, Borough, or Town Corporate, or before a judge of any Court of superior juris- diction in any colony, belonging to the Crown of Great Britain, or any dependency thereof, or before any Consul, Vice-Consul, Acting- 1 Huteheon v. Mannington, 6 Ves. 828. „ 3 Haggett v. Iniff, 5 De O. M. 4 O. 910 : 1 Jur. N. S. 40 ; Re EarVs Truit, 4 K. & J. 300 ; Seton t Thus, in Purkia v. Date, M. R. in Chambers, 6 May, 1864, an affidavit was received and BW, which had been sworn before H., the cleric ot the Circuit Court of Burton County, in the SUtto Indiana, America ; who had subscribed his name to the Jurat, and affixed thereto the seal of thit • Court ; to which was appended a rertlflcate under the hand of A., as Secretary of that StatM|>o the seal thereof, that H. was such clerk, and was auth irised to administer oaths ; and acertm- oate, under the hand and seal of office of the British acting Consul at Chicago, that A. '^^ Secretanr, and that hib signature aad the State seal were genuine. In Mayne v. Buttir, 13 w. & 128, V. C. K., the verification of the sivnature of a foreign notary was dispensed with: the ruou being small, and the solicitor personally undertaking to apply it. See 36 vie. c. 41. , Qxmld T. avtehinion, 1 Chun. R. 188. BEFORE AN EXAMINER. 671 bnsul, Pro-Consul, or Consular agent of Her Majesty exercising 1 functions in any foreign place, shall be as valid as if taken lefore a commissioner in this Province. Sec. 4. provides that no of of the signature or seal of any such officer, or the seal of the orporation need be given. And Sec. 6. provides that no informal- ly in the hearing or other formal requisites to such an affidavit be any objection to its reception in evidence, if the Court or ludge thinks proper to receive it.^ An affidavit must be correctly intituled in the cause or matter in (rhich it is made ; it will, however, be sufficient if it was correctly otitled when it was sworn, although the title of the cause may ive been subsequently altered by amendment.^ Where a mistake curred in the title of affidavits, by omitting the name of one of He defendants, they were received on its being shown by affidavit at there was no other suit pending to which they could relate ;' nd where the names of the plaintiffs and defendants were reversed, he Court allowed the affidavits to be taken off the tile and re-sworn, Qd then filed without affixing fresh stamps.* In another case,* he affidavits were allowed to be made exhibits to an affidavit pro- erly intituled. Affidavits need not in their entitling distinguish the parties by original and amended bill, — it is sufficient to describe them as the jnew parties to the suit.^ An affidavit made in one cause or matter cannot be used, to obtain liQ order in another cause or matter. The Court will, however, in Isome cases, specially direct this to be done : thus, where affidavits [have been filed in a cause proving a pedigree, they were allowed to e used on the hearing of a petition under the Trustee Act, 1850.^ In all affidavits, the true place of residence, description, and addition of every person swearing the same must be inserted.^ This rule, however, will not apply to affidavits by parties in the cause : 1 Qrakam v. Maepherton, > Cham. R. 85, is opposed to tht8 Statute, but so far as can be gathered (rom the Vol. ol Reports it was decided in 1869— some years before this Statute was passmi. j Hawu v. Bamford, 9 Sim. 653. J Fuhtr^. Coffey, 1 Jur. N. 8. 966, V. C. W. ; and see Re HarrU, 8 Jur. N. S. 166, V. C. K. J funm V. racoa, 10 Hare, App. 86. ; «« VarttgChapa, 18 Hare, App. 37. 5 SmmaU T. Ktrr, 2 Chamb. R. 154. 7 « PiMtiM, 10 Hare, App. 86 ; Jonei v. Tunibvll, In re Turr^lnM, 17 Jur. 861, V. C. W. : which u apparently the same case, under a different name. >Hlnde,461;Wy»tfsP.E.9. m ^ Ell? 572 AFFIDAVITS, AND EX-PARTE EXAMINATIONS :r KT. «z:r> f m ■ who may describe themselves, in the affidavit, as the above-n plaintiff, or defendant, without specifying any residence, or additi or other description ; and even where a plaintiff so described self in an affidavit, and it appeared, upon inspecting the office i of the bill, that no addition had been given to him in the bill, affidavit was considered sufficient.^ In that case, also, there wd several plaintiffs, and the plaintiff making the affidavit describ himself as "the above-named plaintiff:" whereas, it was obje ed, that he ought to have called himself " one of the above-na plaintiffs ;" but the objection was oven-uled. Our Order 258 provides that " All affidavits are to be taken i expressed in the first person of the deponent, and his name at commencement of the affidavit is to be written in full, and n| designated by any initial letter merely ; and the juratmay beint form or to the effect set forth in the schedule M hereunder writt No costs are to be allowed in respect of an affidavit, which been drawn in conformity with this order." And Order 259 th " Each statement in an affidavit, which is to be used as evidence! any proceeding before the Court or before a Judge, or before officer of the Court, is to shew the means of knowledge of the pa son making the statement."^ The affidavit must commence by stating, that the party " mm oath and says: " for even though the jurat express that the pari was sworn, it will not be sufficient, unless the affidavit also sta^ that the party makes oath.^ An affidavit must be pertinent and material. Scandalous irrelevant matter should be carefully avoided, and, if any is insert* the affidavit may be ordered to be taken off the file ;* or if tli affidavit is intended to be used before the Court, the scandaloij matter may be expunged, by the same process as scandal in a other pleading ;'' or if it is intended to be used in Chambers, a motiol may he made to have the matter examined and expunged.* 1 Crockett v. BitMon, 2 Mad. 446 a See Woodhatch v. Freeland, 11 W. R. 398 ; and see Orders 68, 69,70. .. : 8 Phillips T. Prentice, 2 Hare, 642 ; Re Ifewton, 2 De O. F. & J. 3. In the case of m tmrmV the words "do solemnly, sincerely, and truly affirm and declare," are usually subrtitnM'l " make oath and say." 4 Ooddard v. Parr, 24 L. J. Ch. 783 : 3 W. R. 633, V. 0. K. ; Kemiek v. Kemiok, 1« W. R. l V. 0. W. 5 See ante. « Ord. 69, 70. BEFORE AN EXAMINER. 573 an affidavit contain impertinent matter, or be of improper th the Court may at once disallow the costs of the improper or may disallow the costs of the pail which the Taxing Master distinguish as being improper.^ be application for the costs of impertinent matter in an affidavit |)uld be made when the affidavit is used.^ The Court generally es it to the Taxing Master to determine what part of the affi- dt is unnecessary : merely expressing an opinion that it is of [proper length.^ lAffidavits ought to be fairly written upon foolscap paper book- ); but the Clerks of Records and Writs may receive and file lidavits written otherwise, if in their opinion it is, imder the cir- stanees, desirable or necessary."* The Clerks of Records and 1 may refuse to file any affidavit in which there is any knife isure, or which is blotted so as to obliterate any word, or which is irly written, or so altered as to cause any material disfigure- Korin which there is any interlineation: unless the person lore whom it is sworn authenticate such interlineation with his Itials, so as to show that it was made before the affidavit was \m, and to mark the extent of the interlineation. An affidavit in which there are interlineations or alterations, not marked, may, however, be filed with the consent of the solicitors all parties against whom it is intended to be used : such consent endorsed on the affidavit and signed by the solicitors.^ And lere two affidavits, by A. and B., were written on the same paper there were unauthenticated alterations in the affidavit of A., document was allowed to be filed as the affidavit of B. : that of being rejected.* - - 'atesard sums may be written, either in words or in figures;' every quotation should be placed between inverted commas. W 71 ; as to this order, see Moore v. Smith, U Beav. 393, 396 ; Mayor of Berwick v. Murray, 7 DeO M. 4 0. 497, 614, 515 ; 3 Jur. N. S. 1, 6 ; Scottish Union Itmirance Company v. SteeU, 9 I T. N. 8. 677, V. 0. W. For form of order, see Seton, 89. No. 17. Iflorwrv. Wheelwright, 'i Jur. N. S. 367, V. C. S. \twty.SmUh,ubimp.; .ffe ^odcU/e, Seton, 89, No. 17: Re Skidmore't Trust», 1 Jur. N. 8. w, V c. S. ; Hamlip, v. Kitton, 8 Jur. N. S. 836, 481, V. C. S. ; on appeal, ib. 1113 ; Scottish 11*011 Inmrance Company v. Steele, uM mp. I ftiilh»'»lte's Oaths in Chan. 42. I??!**?.**'' P""' ***• But an irregularity In the jurat cannot be waived, see post. |MlT,Ga6ard,9Hare,App.l6. n» present practice In the Record and Writ Clerk's Office o( allowing: affidavits to be filed, notwith- wndingthat dates and sums are written therein In figures. Instead of in words, was adopted with jM swictlun of Lord ChanceUor Campbell . A previous usage In the office to the contrary waa fMOftaised in Crook v. Crook, 1 Jur. N. 8. 664, V. 0. 8, ; Bralthwalte's Pr. 340. ,v. 1.. i 574 AFFIDAVITS, AND EX-PARTE EXAMINATIONS Schedules referred to in an affidavit as "hereunder writtal should be placed after the jurat ; and the commissioner, or other peri son before whom the affidavit is sworn, must sign his name at tl» end of each schedule. If a schedule is placed before the jurat, J should not be referred to as " hereunder written," but as ' schedule (or, first, &;c., schedule) set forth in this my affidavit." schedules may also be embodied in the affidavit.^ Alterations in schedules, or in accounts made exhibits to davits, should be authenticated in the same manner as in the bodi of the affidavits.^ icr: aitt m •» :> ^■l*"":^ —*•*-• .1;- I . A document may be referred to in an affidavit, either as exhibit, thus : " produced and shown to me at the time of swearinJ this my affidavit, and marked with the letter A ," or as, " hereunti annexed." If " produced and shown," the document is uot fileij with the affidavit ; if " hereunto annexe ^.," the affidavit canno properly be filed without it ; and it is thei jfore generally more con] venient not to refer to it as " hereunto annexed."^ Any document referred to, must be distinguished by some markj placed upon it, and signed by the person before whom the is sworn.* ' It is the usual practice, in all cases, to write the short title of tha cause or matter on the exhibit ; and this must be done in the of documents made exhibits, and intended to be used in Chamber Where a document is referred to as being produced and sho^ to the deponent, the person before whom the nf . i: '\i< sworn musi inquire whether the deponent has seen the doC* ...;>ii, and isawarq of the contents thereof; but this need not .•■ done where th«j document is referred to as hereunto annexed : the document beii annexed at the time the affidavit is swora* '■ • : Where one party has proved written documents in a cause, thd other side has no right, upon that ground, and in the absence ol 1 Braithwalte's Pr. 341. 2 See Regul. 8 Aug. 1867, r. 10. 8 Braithwaite's Pr. 341. 4 Heteetaon v. TodhunUr, 9 Sm. & Gift. App. 2. 6 Braithwalte's Pr. 341. f BEFORE AN EXAMINER. 675 ial circumstances,* to require them to be produced before the «aring ; unless, perhaps, where the affidavit proving them sets hem out verbatim :^ for a party can have no right to see the strength his adversary's case, or the evidence of his title before the hear- Dg.' The documents may, however, be ordered to be produced, in Irder that the other side may cross-examine upon them.* The jurat should be written at the end of the affidavit, and is ually placed at the right-hand corner ; it may, however, be writ- |en on either side of the page, or, if necessary, in the margin ; but lot on a page upon which no part of the statements in the affidavit ppears.* It must also correei'.ly express the time when, and the where, the affidavit is sworn, including the name of the city, prough, or county." 1 The deponent must sign his name, or make his mark, at the side of te jurat: not underneath it.'^ The person before whom the affidavit sworn must sign his name at the foot of the jurat : to which must added his official character as Commissioner, not necessarily, lowever, in his own handwriting.^ If the deponent be a marksman or blind, the affidavit must be truly, distinctly, and audibly read over to him : either by the krson before whom the affidavit is sworn, or by some other person. I the first case, it must be expressed in the jurat that the affi- [vit was 80 read over, or that the mark or signature was affixed in I presence of the person taking the affidavit ; in the second case, |ch other person must attest the mark or signature, and must be 1 swom that he has so read over the affidavit, and that the mark I signature was made in his presence, and this must be expressed the jurat.* lyir. CUvin, 2 Drew. 206 : 6 De O. M. & O. 47 ; 18 Jur. 253 ; see also Forrester v.,Helm«, M'Clel. I K8, Iflodionv. Earl of Warrington, 3 P. Wins. 34. |*«r»v. /)otier», 2 P. Wms. 410: Hodgonv. Earl of Warrington, ubi sup. ; Wiley v. Piitor, I . „ • *^1 ' ftneott V. Clarke, 6 Sim 8 : Lord v. Colvin, ub% sup. ; Gre ley, 192 : ante. XHy. Jokmmi, IJ & H. 682. Imithwate's Pr. 342. I'W butseeffotejv. 5«c*tend, 13W. R. 67,V. C. S- i' . i ■ ■ - 5n ' liiKlenim V. Slather, Jur. 1086, V. C. K. B. |Wthw»ite'8 Pr. 342 ; but see OaUs v. Buekland, 13 W. R. 67, V. C. 8. The words ' before me " most precede the commUsioner's signature ; see Graham y. Ingleby, cited Braithwaite's Oaths in iliin. 48, I ftilf*^"''" should be written near the jurat : Wilton v. Clifton, 2 Hare, 536 : 7 Jur. 216 • SS '?''*'' ^'■- ^^- Where a marksman signed an affidavit with his name at lengrth, his hand' »m been guided on the oooasion, It was ordered to b« talten off the file : v. Christophtr. *i ouO. 409, ,,..,.- ' 1 ( mm, m 1 ■ '■■* 676 AFFIDAVITS, AND EX-PARTE EXAMINATIONS If the deponent be a foreigner, the contents of the affidavit mm be interpreted to '.im ; and the interpreter must be sworn thathel has truly, distinctly, and audibly done so, and that he will truiyi interpret the oath about to be administered, and then the H(?porientl may be sworn; and that these formalities have been compliedl with, must be expressed in the jurat.^ Formalities of a similar kind, by which it may appear that the! deponent has fully understood the contents of his affidavit, beforel he is sworn, must be adopted, in the case of a deaf, or deaf and dumb| person, or in other similar cases.'^ The oath should be administered in a reverent manner ; and, i not administered in the usual form, the authority for administeringj it should appear in the jurat.' , Quakers, Moravians, and Separatists give their evidence on thelrl solemn affirmation ; and any person who objects, from conscientious! motives, to be sworn, may now give his evidence upon his soleD affirmation ; but the person qualified to make affirmation, must bej satisfied of the sincerity of the objection, and this must appear m| the affirmat. • ' It is an universal principle in all Courts, that jurats and affidavitaj when contrary to practice, are open to objection in any stage of i cause. This does not depend upon any objection which the partieaj in a particular cause may waive, but upon the general rule that thd document itself shall not be brought forward at all if in any respectj objectionable with reference to the rule of the Court. WhereJ therefore, there was an irregularity in the jurat of an answer, motion by the plaintiff to take it off the file, on the ground of such irregularity, was allowed, notwithstanding that he had taken an office-copy of the answer.* Where, however, in the case of affidavit sworn abroad, before a notary, the place where it wa sworn was omitted in the jurat, it was ordered to be filed : tha Vice-Chancellor observing, that he thought the Court must assuma 1 Braithwaite'a Oaths in Chan. 85. 2 JUynolda v. Joneii, Trin. Term, 1818 ; Braithwaite's Pr. 888, 3 See Braithwaite's Pr. 383, 384. 4 PUkington v. Himsworth, 1 T. & C. Ex 612, 616 ; but see Braithwaite's Pr. 48, and mU. BEFORE AN EXAMINER. 577 I that the uotary was acting in pursuance of his duty, and that he would not peiform a notarial act out of the jurisdiction in which t alone he had authority.* Order 260 provides that : " Affidavits, either in support of, or in opposition to, any Sjecial motion or petition, are to be filed, with the Clerk of Records and Writs. This order is not to be taken to warrant the taxation of the costs oi obtaining office ' The most usual instances of viva voce examinations are where! they are lieanl before a Judge on Circuit preparatory to the hearin of the cause : an Examiner, either special or otherwise/ and Master on references brought into his office. In the first easel the examination is taken- as at nlsijn'ius, with this difterence that the depositions are taken down by the Judge, or the Registrar, or Deputy Registrar under his directions in open Court, and are read over to the witness and signed by him ; in the second case the I depositions are usually taken to be used on some interlocutors! application : or the examination is the cross examination of a party I to the suit which may be used at the hearing or not at the option I of the party at whose instance it is taken : and in the third, it is the usual practice in the Masters' Office to take all evidence vim \ voce ; and in fact it can be taken in no other way except by consent. The details of the practice in these cases will be found under! other more appropriate heads, but there are some points common to all which it will be convenient to notice here. Where it is intended to examine witnesses before an Examiner, an appointment must be obtained from him, and notice thereof given to the witness ; and where there is reason to suppose a witness will not voluntarily attend to be examined, recourse must be had to the compulsory process of a writ of sitbpoenu ad testificandum : which commands the witness to whom it is directed to appear before the | examiner, to testify on behalf of the party requiring his testimony.' In case the witness is required to bring with him any written I document in his possession, then the writ must be a subpcena dum | tecum.^ Every siihpcena, or suhpcena duces tecum may contain any number of names, and the party suing out the same is at liberty to sue out a 9ubj)Oina for each person, if it is deemed necessary or de- j sirable to do so. In a subpoena a husband and his wife are con- sidered as two distinct persons, and h3r christian and surname must | be inserted accordingly,* 1 It may here be mentioned, that aU Masters are Examiners by their commission— but tlww w | in Toronto two " Soecial Examniers." 9 Hiude, 328. ^««; I 3 As to the degree o( particularity with which the documents must 1)e described, see JtfofiwjM'*"*'* V. WiUon, 9 Sim. 526. 4 Hinde, 827 : Braithwaite's Pr. 264, n. VIVA VOCE EVIDENCE. «79 The mbpcena mu«t be eiuloi-Hed with the name or firm, and place of business of the solicitor issuing the same, anfl of his agent, if any, or with the name and place of residence of the party issuing the same, when he acts in person ; and, in either case, with the address for service, if any.^ On obtaining a subpcena, a precipe, in the usual form, must be filed at the Record and Writ Clerks' or Deputy Registrar's Office. The service of tliis sahpama must, in all cases, be personal ;* and is effected by delivering a copy of th*^ writ and of the indorsement thereon to the witness, and at the same time producing the original writ. At the time he is served r^ith the writ, the witness should be served with a notice in writing, specifying the purpose for which he is to attend the Examiner in pursuance of it.' No witness is not bound to attend, unless his reasonable I expenses are paid or tendered to him ; nor, if he appears, is he I bound to give evidence until such charges are actually paid him ; * j and the rule is the same, where the witness is a party to the cause.* A public officer who has charge of documents for which he is responsible, and attends as a witness iu his public capacity and in relation to matters connected with his office, will be allowed profes- I lioDal witness fees of $4 per day.* A witness, or a party is not liged to attend and give evidence or submit to cross-examination, I except he be duly notified or subpcenaed, even if he happens to be present when the proceedings are going on. Where therefore a party to a suit who had made an affidavit was present in the Masters' Office, and the solicitor for the opposite party proposed to cross-examine him on his affidavit and he refused to answer, a motion |«!^rfe to compel him to attend and be examined was refused.^ If the witness whose attendance is required is a married woman, the 8it&/)CB7ia should be served upon her personally, and the tender I of the expenses made to her, and not to her husband.® . , . - i 1 Ord. 40, 44, 46. I ^Mr V Damon, 22 Beav. 282. kf^ ^^^ examination is adjourned, the witness is bound to attend the adjournment, without Ming served with a new gubpcBiM ; but he should be served with notice of Uie adjourned time; , "<" "w Lamon v. Stoddart, 10 Jur. N. S. 33 ; 12 W. R. 28«. V. C. K. ™»niount payable is according to the scale fixed by the Common Law Judges : Taylor on Evid. s. JIM, n. : Chitty's Arch. 1765 ; see also Clark v Oill, 1 K. & J. 19 ; Noket v. Oibbon, 3 Jur. N. H. 2J> \ £• K. : Broeas v. Lloyd, 23 Beav. 129 : 2 Jur. N. S. 656 ; Turner v. Turner, 6 Jur. N. 8. 8M: 7 w. R. 673^ V. C. K. ; Morgan ft Davey, 29. « ftfy 7- ^'■'■ant. 24 Beav. 493 : 4 Jur. N. 8. 230, a case of cross-examination on affidavit. !*'J'«'wn,2 0ham. R. 262. ' «»mi V Carson, 2 Cham. R. 343 ; and see Waddle v. MeGi7Uu, 2 Cham. R. 242. As to pririlege I » S.n ^ f? refusing to attend and answer, see Qrainqo v. Latham, 2 Cham. R. 818. , » « PhU on Bvld. 428 : ftylor on Bvid s. 1129. ' " ' I'* 580 EVIDENCE. r> '•Mi- If the witness, upon being duly served with the 8uh2mna and notice, neglects or refuses tu attend to be examined, a curtiticate •>( his non-attendauoe may be procured from the examiner and tiled in the Record and Writ Clerks' Office ;^ and an application made t(j the Court, that the witness may be ordered to attend and be awom and examined, at such time and place as the examiner may appoint- This application is made by motion, which may be made either a parte, or on notice to the witness.^ The application nmst be sup- ported by an affidavit of due service of the aubjxxna and notice and by production of the examiner's certificate of non-attendance.* « When the order is made ex parte it contains a clause tliat in default of attendance the witness do stand committed, and shall nut direct him to pay the costs of the application.^ Where a plaintitl though duly served with a suhixjina, and the Examiner's appoint- ment, does not appear to be examined, the defendant's motion that he do attend or stand committed is made ex parte, unless the Court sees fit to direct notice to be given.* But in a subsequent case it was decided that an application for an order that a pai'ty to a suit do submit to be examined at his own expense, or in default be com- mitted will not be granted ex parte, — notice must be served. The right to examine a party to the cause ip not affected by No. 2 of the orders of 10th January 1863.^ An application for an order for the de- fendant to attend at his own expense, and be examined, on his answer may be made ex parte} To compel the attendance of a witness, or a party whom it is sought t*^ sxamine, he must be duly suhpixnaed, or served with an appointment eight days previous to an examination A further appointment must next be obtained from the examiner, and notice thereof, and a copy of the order, duly served on the wit- ness.® If the witness stiU neglect or refuse to attend, a further certificate of non-attendance must be obtained from the examiner and filed, as before explained. An attachment may then, if the 1 Seton, 1234 ; but see Cait v. Poyser, 3 Sm. & O. 360, where an attachment was held regular, though the oertiflcate had not been filed. 8 Braithwaite's Pr. 144. For forms of orders nisi and absolute, see Seton, 1283, 1234. 8 H'iiden v. Wisden, Hare, 649, 660. 4 Seton, 1284. 6 Seton. 1284 ; Soku v. OtMon, 8 Jur. N. S. 282; Brook v. Biddall, 2 Eq. Rep. 687, 2 W. R. W- 6 Fowler v. BotUton, 12 Grant, 437. 7 Weir y. Matheson, 1 Cham. R. 224. This Order is similar to Order 166 of the Con. 0. Orden. 8 Harriton v. Qreer, 2 Cham R. 438. j i ti i 8 The copy of the order must be indorsed according to the provisions of Ord. 208, and Mnred m we same manner as in other cases. VIVA VOOK KVIDKNC'K. S8l order has l)eoii made on notice, he issiuul against him on production to the Record and Writ Clerk of an affidavit of »lue service of the order and notice, and of non-attendance.* Our Order 14'4 provides that " A i)erHon refusing or neglecting to attend at the time and place appointed for his examination, or refusing or neglecting to obey an order for production of documents, may he punished as for a contempt : and the party who desires the examination, or production, in addition to any other remedy to which he may he entitled, may apply to the Court, upon motion, either to ha"o the hill taken pro confeaso, or to have it dismissed, according to circumstances." And Order 145, that " The Court upon such application may, if it think fit, order either that the bill be taken p'o confeft80, or that it be dismissed, as the case may be : or inalce such order as seems just." After the witness has been examined, he will, upon his motion, and production of the Examiner's certificate of his examination being complete, be ordered to be discharged by the Court, on paying or tendering the costs of his contempt ; or he may be discharged by the party at whose instance he was committed, if the goaler can lie prevailed upon to take such discharge.^ The method is, mulatia mutandis, the same, where a witness, having attended in obedience to the suhpcena, refuses to be sworn, or to wait till his examination can be taken.' % If a witness, attending upon a subpoena duces tecum, refuse, with- out sufficient cause, to produce the document mentioned in the writ, when required, he may be ordered, upon special motion, to attend again and produce it, and to pay the plaintiff* all the costs occasioned by his refusal.* If a witness is in prison, under a common law process, lyj may be brought up under a writ of habeas corpus ad testificandum.^ The 1 Ord. 288 ; Seton, 1234, JiMd. S30; Seton, 1237. . ... . ]HenMgalv.Evance,nyea.20l. - 4 Sndthau) v Bradshaw, 1 R. & M. 358 ; Hope v. Liddell, 20 Bear. 438 : 7 De O. U ka.MSl.Rt Camr •- 9 CoIboHM V. 7AOTna«, 4 Grant, 169. •' 3 Glib. For. Rom. 118, 119 ; Uinde, 305, ,..u,» EXAMINATION OF WITNESSES DE BENE ESSE. 585 ourt of Chancery ; and the practice in regard to it will be con- fcidered when we treat of suits instituted for the purpose of perpe- iuating the testimony of witnesses. The common examination in >mtuar)i rei Ttiemor'^iam has likewise been adopted by Courts of luitv, in their practice of examining witnesses de bene esse :^ fhich forms the subject of the present section. The examination of a witness de bene esse ordinarily takes place : Iwhere there is danger of losing the testimony of an important wit- Iness from death, by reason of age (as where the witness is seventy yeai-s old and upwards f ) or dangerous illness ;^'or where he is about to go abroad ;* or where he is the only witness to an important fact.^ In such cases, the Court, to prevent the party from being deprived of the benefit of his evidence, will permit his depositions to be taken before the cause is at issue, in order that, if the witness die, or be not forthcoming to be examined after issue joined, the depositions so I taken may be used at the hearing.* An order to examine a witness ae bene esse on the ground of ill- I ness, will not be granted ex parte, unless the illness is dangerous : if there is no immediate danger notice should be given.^ An appli- cation was made by the plaintiff on notice, supported by his own affidavit, to examine a witness de bene esse, who was about to go abroad : — the case had been heard but no judgment pronounced, and the plaintiff presuming the decree would be in his favor proposed to examine the witiiess with a view of using his evidence in the Master's office in taking the accounts. The affidavit shewed that the witness was going abroad, — 'that the plaintiff could not prevent him, and that he was the only person within the jurisdl'ition who could give testimony in regard to the matters in which it was pro- posed to examine him, and also stated the grounds for the plaintiff so considering him. The motion was unopposed. Esten V.C, made the order on the ground that although such orders are only granted i i 'n -, 13 Ve«. 261 ; Forbes v. Forbes, 9 Hare, 401, where the witness was a party to the 1 Hinde, 368. I Rovie V. — cause. 3 Bellamy v. Jonei,, 8 Ves. 31. 4 Bom V. Chad, 3 Sim. 457 ; Grove v. Toting, 3 De O. & S. 397 : 13 ,Tur. 847 ; M'Tntosh v. Great Weittem RaUuay Company, 1 Hare, 328. 5 Shir/ey v Earl Ferrers, 3 P. Wins. 77 ; Pearson v. Ward, 2 Diclc. 648 ; Flankin v. Middlediteh !Bro. C. C. 641 : Brydges v. Hatch, 1 Cox, 423. In Earl of Cholmondely v. Earl of Orford, i Bro. C. C. 157, two witnesses were ordered to be examiniid de bene esse : being the only persons who Itnew the material facts. « HInde, 868 ; Gilb. For. Rom. 140. 7 Andtnin v. Anderson, I Cham. B. 291. 1^ i 586 EVIDENCE. ai«M ***«•••*■ SE' where it is shown that the evidence is to be used for some definite purpose, yet that the Court will make such an order where it con- siders that justice requires it.^ An application was made for an I order to examine a witness de bene esse, on account of ill health. The order was granted ex parte} But an application to examine a witness de bene esse on the ground that he is about to leave the jurisdiction will not be granted ex parte : — notice must be served,' On applying for an order to examine a witness de bene esse, it should be clearly shown that the witness is the only witness as to the fact sought to be proved by him. An application, supported by an affidavit of the Solicitor as to his belief was refused.* The examination of a witness de bene esse may be incidental to every suit ; whereas the examination for the purpose of n^'i-petua- ting the testimony, is the fruit of a suit instituted for that particular purpose. It may even be incidental to a suit to perpetuate testi- mony, where there is danger of the evidence of the witnesses, whose testimony is intended to be perpetuated, being lost before the suit for perpetuating is ripe for a regular examination.^ In general, the Court will not allow the examination of a witness debene esse after the closing of the evidence ; and, therefore, where^ upon a hearing, an issue had been directed, and an order made that the depositions of the plaintiff'.s witnesses might be read at the trial, in case such witnesses, or either of them, should be dead, and an application was afterwards made that the trial should be postponed, and that the plaintiff should be at liberty to examine another wit- ness de bene esse : Lord Eldon, after consulting with Sir William Grant, M. R., said, that the motion was one which could^not be made with effect, without laying before the Court very strong circum- stances to induce it to permit the examination ; and, although he would not say that it could not be granted in any case, he refused it in the one before him.^ It seems, however, that where a witness, who has not been before examined in this Court, has been produced at a trial at Lav\-, and another trial of the same matter is to be had, the Court will entertain a motion for the examination of such wit- 1 Whitehead v. B. A L. H. Railway Co , 5 U. C L. J 232. „ , „„ „ „ ^ , ■>-., S Oliver v. Dickey, 2 Cham. R. 87, citingr Tomkim v. Ilarnnon, 6 Mad 316 ; Hope v. ^opM w»'. 817 ; MeKiniwn v. Everitt, 2 Beav. 188 ; Bellamy v. Jonei, 8 Ves. 31. Ayckboume s Prw m. 5 Early r. MeOitl,! Cham. B.. 257. > . 4 Jaineton v. Jones, 3Cham. R. 98. *" ..;« ;. ) d^ 6 Frere v. Green, 19 Ves. 319. ,, . ' ''' 9 Palmer y. Lord AyUibury, 15 \eB. 209, • ...-,• , , ..'i ,» ' EXAMINATION OF WITNESSES DE BENE ESSE. 587 Less de bene ease, with view to such second tiial.^ And so, after the trial of an issue in the cause, an application, on the part of the plaintiff, for liberty to examine a witness, who was above seventy K'ears old, de bene esse, for the purpose of securing Iiis testimony in of his death, upon the ground that it was intended to move for mew trial, was granted.^ Sometimes it is I'equired to examine a witness de bene esse, either iin support of, or in defence to, an action at Law : in such case, it was foiTOerly necessary that a bill should be filed in this Court, with the proper affidavit annexed to it, praying specificallj'^ that Itlie witness might be examined de bene esse f and this may still be done, although the Courts of law have now power themselves to take such evidence.* It is to be observed, that an order of this Dature, in aid of a proceeding at Law, cannot be obtained upon a hill filed for any other purpose ; and that where a bill was filed for a commission to examiu*^ witnesses abroad in aid of a trial at Law and a commission had been sent out accordingly, but, before it reached its destination, one of the witnesses returned to England, whereupon an application was made for leave to examine him de kne case., upon the ground that he was about to leave the countiy again before the trial could be had. Sir John Leach, V. C, refused the motion : observing, that this was a difierent relief, and that the I hill must be amended.^ The cases in which the Court will make an order for the exami- nation of witnesses de bane esse are not confined to those of age or sickness, or in which the witness is the only person who can speak to the fact intended to be proved. The Court will give permission for such an examination of witnesses in other cases which come within the same principle ; indeed it will do so, wherever the justice of the case appears to require it. Thus, where an application was made to examine the surviving witness to a will, de bene esse, on the ground that the parties concerned all lived in America, and that the surviving witness was greatly afflicted with the gravel, the order was made, although the witness was only stated to be more than 1 itwn., cited by Lord Eldon, 15 Ves. 800. i iiurn., Ves. 573. S Ld. Red. 160 ; Phillipn v. Carew, 1 P. Wms 116 ; Andremv. Palmer, 1 V. & B. 21, 23 ; 1 Newl J B^' ""'*• P"**' ^*''* '" Perpetuate Testimony. * SeeTavlor, s. 472, et seq. ; Chitty's Arch. 829, et tea. 5 ithtM T. Poiwwr, fi Mad. 19. . , , . ., m. 588 EVIDENCE. ■ ••8.'. upwards of sixty years old."^ So, also, where the age of the wit- ness was not stated, but the affidavit, upon which the application! was made, alleged only that the witness was subject to violent! attacks of the gout, and from these attacks was under the appreJ hension of dying, and that he was a material witness, his testimonvl being required to prove the draft of a bond which he had prepared! but which was lost, the Court of Exchequer made an order for hisl examination de bene esse.^ In like manner, where a witness isalwutl to go abroad, an order may be obtained for his exarainationl (h bene esse.^ The Court, however, will not permit the exami- nation of witnesses de bene esse, on the ground of their hm] about to go abroad, where it is in the power of the party applying! to detain them till they have been examined in the ordinary course] Upon this ground, the Court of Exchequer refused to make aul order, on the application of the East India Company, for the ex- amination of witnesses de bene esse, who were going to the East Indies : because they were the Company's servants, they miglit have | kept them at home.* It seems, also, that, in a question of pedigree, where the case depends upon a chain of distinct ciicumstances in the knowledge of different individuals, the death of one of whom would destroy the | whole chain, the Court will permit the examination of such in- dividuals de bene esse, although none of them come within the- description of witnesses whose testimony is in danger of being lost, either from age or serious illness,^ The rule, however, that the examination of a witness de bene em will be permitted where the individual proposed to be examined is the only witness, will not be extended to cases where there is more than one witness to the same fact, unless upon the ground of the age or infirmity of the witness ; therefore, where an application was made for leave to examine de bene esse one of two surviving witnesses to a will, who was neither of the age of seventy nor in a state of 1 Fitzhugh V. Lee, Amb. 65 ; but, in such cases, an ex parte order Is Irreifular j see M'Kenna v. EvetUt, 2 Beav. 188 ; Hope v. Flope, 3 Beav. 317, 323 ; ib. n. 2 Jepson v. Oreenaway, 2 Fowl. Ex. Pr. 103. ^ 8 Bown V. Child, 3 Sim. 457 ; MTntoah v. Ormt WeHtern Railway Company,! Hare, 328 ; M htnta V. Everitt, 2 Beav. 188 ; Orove v. young, 3 De 6. & S. 397 ; 13 Jur. 847. 4 East India Company v. A'aish, Bunb. 320. „ , „„, 6 Shelley v. , 13 Ves. 56, 58 ; Shirley v. Earl Ferrers, 3 P. Wins. 77 ; Hope v. Hope, 3 Kw. 317, 823, EXAy. NATION OF WITNESSES DE BENE ESSE. ^l^ rerous illness, on the gi'otind that he was a prisoner in the Castle Lf York, charged with capital felony, no order was made.^ From au observation which appears to have been made by Lord Idon in Freer v. Green^ it may be inferred that an order of [this nature cannot be obtained before appearance, unless the defen- dant is in contempt ; but the practice is not so, and an order to ex- lainine a witness de bene esse, upon either of the grounds above {stated, will be granted, upon an affidavit of the facts, immediately lal'ter the filing of the bill, without waiting either for the defendant's lappearance, or for his being in contempt for non-appearance.^ There Iseems, however, to be no doubt that the contempt of a defendant in I not appearing would, at any time, be a reason for giving permission to a plaintiff' to examine his witnesses de bene esse, where a proper ground is laid for it, even where the case does not come within aaay I of the three instances above mentioned.* The Court ordered a commission for the examination of an aged I witness to issue, without requiring the bill to be served in the first instance ; the object of the suit being to perpetuate testimony, and it having been sworn that there was danger of the testimony being lost ; but directed notice of the execution of the commission to be I served on the defendants.^ In Bown v. Child,^ an order to examine, de bene esse, a witness about to go abroad, was made on a special application by the defen- dants, before answer. An order for leave to examine a witness de bene esse, upon the ground of the witness being seventy years of age, or dangerously ill, or about to go abroad, may be obtained by motion in Court, with- out notice^ ; but where the application is not made on the ground of the age or dangerous illness of the witness, or that he is about to go abroad, the Court will not make an order for his examination de kne esse as of course : so that, if a party wishes to examine a wit- ness de bene esse, upon a ground which cannot be arranged under l^noM., loVes. 321. ' ■ * 2 19 Vm. 320. 3 C«w V. Clarke, 1 S. & S. 108, 115. * Cmeny v. Athill, 1 Dick. 355 ; Pritchard v. Gee, 5 Mad. 364. i ?"»< ^- PretUm, 4 Grant, 487. ' ' 6 3 Sim. 457. ^ BeUamyy. Jones, 8 Ves. 31 ; Tmnking v. Harrinon, 6 Mad. 315 ; M'Kenna v. Everitt, 2Beav. 188 ; *Jnto*h V. Great Western Railway Cnmnany, 1 Hare, 328, 330 ; Grnvc v Touivg, 3 De G. & S. S»7:18Jur.847. J i .>, , > ■ J, i I 590 EVIDENCE. ^ f!;' '•>j.' f=Z ""•"•ST!!' ;fl"- dZ^ m' ET^ either of those classes, he must apply by motion in Court, of whicj notice must be giver to the other side.* In the case of Hojx i Hope,^ Lord Langdale, M. R., had to consider, whether an order foi the examination de bene esse of a person alleged to he the sole wit^ ness to a material fact, could be regularly obtained ex parte, and hi came to the conclusion that, in such a case, the application should be made on notice; and it seems that the affidavit, in support o| such an application, ought to show the facts as to which it is pro posed to examine the witness. If the order has been obtained as on course, in a case where a special application for it should have been! made, the adverse party may move, on notice, to discharge it.^ It seems, however, that, where a defendant is in contempt fori non-appearance, such an order may be obtained without notice, and! this even where the defendants are infants. Thus, in /'rerev.f Ch^een,^ were the defendants were infants and in contempt, and itl appeared by the messenger's retuin that they had absconded were not to be found. Lord Eldon, upon the usual affidavit of the | materiality of the evidence of the witnesses, and the plaintiflfs' un- dertaking to proceed with all due diligence, and with as much expe- dition as the course and practice of the Court and the contempt of I the defendants would admit, to bring the cause to an issue, and ex- amine their witnesses in chief, made an order that the plaintiffs I should be at liberty to examine them de bene esse ; but he provided, by the order, that, before publication of the depositions of such wit- nesses should be allowed to pass, proper evidence should be pro- duced to satisfy the Court that the plaintiffs had complied with the above undertaking. Although, in the instance above mentioned, an order to examine a witness de bene esse may be obtained upon motion without notice, notice of the examination of the witnesses must, in all cases, be given, in order that the other side may have the power of cross- examination.* The application for leave to examine a witness de bene esse must, in every instance, whether made by motion to t.ie Coui't, with no- 1 Bellamy v. Jones, 8 Vea. 31. , 2 3 Beav. 317, 323, n. ; and see Peamon v. Ward, 1 Cox 17". 3 See ^'Kenna v. Everitt, ubi sup. ; Hope v Hope, 3 Beav. 317. 4 19 Ves. 319 320 ; see also SfteUey v. , 13 Ves. 66. 6 Loveden v. MUJord, 4 Bro. C. U. 640 ; UrU. 6 Feb. 1861, r. 22 ; anU, pp. 8S6, 84& EXAMINATION OF WITNESSES DE BENE ESSE. 591 ice or without, be supported by an affidavit of the facts which form the grouud of the application : such as, the age of the witness, id that lie is a material witness for the party making the applica- lon' • and also by the Record and Writ Clerk's certificate that the liO has been filed, where the defendant has not answered, or of such wer, where one has been filed. Where an application is made or an order to examine a witness, on the ground that he is the inly person who knows the fact, the affidavit should state the par- ticular points to which his evidence is meant to apply^ ; and should how the ground which the peraon who makes it has for believing bat. the witness is the only persoa^ The order to examine witnesses de bene esse names the witnesses Ito be examined, and only authorises the examination of the persons Inamed therein. Where the order is obtained without notice after {answer, it must be served upon the solicitor on the other side ; but There it has been obtained before answer, so that there is no ad- I verse solicitor upon whom it can be served, the order usually directs, jthat notice of the order be given to the defendant, or a copy thereof be left at his dwelling-house or usual place of abode, with his ser- jvant, agent, or other person residing there, a specified number of js before the examination of the witness.* This is done, in order Itoaiford the adverse party an opportunity for cross-examination of I the witnesses. The examination of witnesses de bene esse is taken before an Examiner of the Court, or a special Examiner, and the depositions are transmitted by him to the Record and Writ Clerks' Office, to be there filed.s -. 'A ^^ Fonnerly, it was necessary to give three days' notice, of the time nd place of the examination, to the other side.* Now, it is pre- Isumed, forty-eight hours will be sufficient ; but the notice must also state the name and description of the witness to be examined, and the time and place of examination. ii:- tftw V. 1 oung, 8 De G. & S. 397 : 13 Jur. 847. . ftanon v. Ward, 1 Cox, 177 : 2 Dick. 648 ; Hope v. Hope, 3 Beav. 317, 322. f^iMv. ,13Ves. 261. 4 bee order in Hope v. Hope, 3 Beav. 317 : but see form of order in Seton, 1236, No. 2, which differs «a to the notice. Office copies uf the depositions may be obtained at that office, as soon as they are filed : Bimith- *»ite » Pr. 122. « Tomkim v. Harrison, 6 Mad, 315 ; U'lntoxh v. Great Wentern RaUtcay C&mpanyt 1 H»re, ; k 592 EVIDENCE. _ -11 Till II aiita . ••(■ As the examination of witnesses de bene esse is only a provision measure, to guard against the loss of important evidence before i cause is in a state in which a regular examination can take pU it is the duty of the party examining to take the earliest opportul nity to examine in the ordinary course, and if he is guilty of anj laches in so doing, the benefit of the examination c^e bene esse wii be forfeited.^ In the Duke of Hamilton \. Meynal^ however, Lon Hardwicke made an order for the p iblication of depositions takeJ de bene esse, although the original bill was filed, and the examine tion taken, above thirty years before the cause was brought to issue ; but it seems that this was done under particular circumJ stances, and that the delay was accounted for. We have seen before,'! ' that in the instance of an application to examine witnesses de esse, to prove a case against infant defendants who were in contemptl for non-appearance, Lord Eldon made the order, upon the plaintiftj expressly undertaking to proceed with all due diligence to brin the cause to issue, and to examine the witnesses in chief Depositions, taken de bene esse, cannot be made use of withoutl an order. The ordinary course of the Court is not to allow of theirl use unless the witness dies before issue is joined in the cause, sol that there has been no opportunity to examine him in the ordinaryj course ; or unless he is at a great distance, so that it is impos to have him examined again. These, however, although the usual I are not the only cases in which the Court will order depositions taken de bene esse to be used. It is in the discretion of the Court] to determine whether the order shall be made or not ; and when- ever it can be established, to the satisfaction of the Court, that there I is a moral impossibility in the examination of witnesses in chief taking place, it will make the order. Therefore, in Oason \.Wori^-\ worth,*' where a commission was sent to Sweden, to examine wit- 1 nesses there, which the Government of Sweden refused to permit, the Court allowed the depositions of those witnesses who had been examined de bene esse to be read at the hearing : because it was morally impossible to have them examined in chief So also the Court has permitted depositions taken de bene esse to be read, 1 See Fortyth v. ElHce, 2 M'N. & 209, 213 ; overruling S. C. 7 Hare, 200. 2 2 Dick. 788; S. C. 7wm. Anon., 2 Ves. S. 497. 3 Ji'rere V. Oreen, 19Ves. 319. , , . 4 2 Ves. S. 325, 336 ; Ainb. 108. ... EXAMINATION OF WITNESSES DE BENE ESSE. 593 iltliough there has been no strict proof of the death of the witnesses : aause the length of time which has < lapsed since the depositions Irere taken, has afforded a just ground for presuming them to be Sometimes the Court will allow depositions taken dc bene esse to 1 made use of upon a trial at Law, on the ground that the witness, ^hough alive, will be unable, from age or sickness or other infirmity, ko attend at the trial.^ In such cases, however, the more usual ourse is (especially where there is any doubt whether the grounds upon which the application is to be made are such as will be suffi- cient, in a Court of Law, to authorise the admission of the evidence), I make an order that the ofiicer, in whose possession the original aeposition is, shall attend with it at the trial, in order that, if it khould be proved to the satisfaction of the Court of Law that the fitness is unable to attend, the depositions should be tendered to Ibe read :* it being the province of the Judge who tries the cause latLaw, and not of this Court, to decide on the admissibility of the levidence, upon the facts as they appear before him.* Upon this Iground, the Court has frequently refused to make an order that the sitions, taken de bene esse, of a witness who was alive, though |8wom by affidavit to be unable to attend at the trial of an issue at ^, should be read at the trial.^ I ]|. Depositions of a witness, examined de bene esse, can only be used Iforthe purpose of supplying the want of an examination in chief Ap- Iplications for leave to use them, for other purposes, have been refused.e |Id Pegge v. Burnell} an application was made to the Court to allow |& deposition de bene esse to be read at Law, in order to confront tlie jwitness and invalidate his testimony viva voce, upon a new trial, on Itk ground that on his examination, at the first trial, his evidence I differed materially from what he had before unifonnly declared the j fact to be ; and as the case made in support of the motion was a I very strong one, and abundantly sufficient to justify a departure 1 iwn., 2 Ves. 497 ; S. 0. nom. Duke of HamUton v. Meynal, 2 Dick. 788 ; Marsden v. Bound, 1 »ern. 331 ; 6ee also M'Intosh v. Qreat Western BaUway Company, 7 De O. M & O. 737. z SrUUy V. Crackenthorp, 1 Dick. 182. '*"?««!» T. Palmer, 1 V. & B. 21 ; see also Corbett v. Corbett, ib. 335 ; Palmer v. Lord Aylesbury, 10 Ves. 1(6 ; Attorney-Oeneral v. Ray, 2 Hare, 518, and form of order, ib. 519, n. ; Oumpertz v. iJwdeK, 1 Smith's Pr. 876. w. . . \Jmj V. Jonen, 1 Cox, 184. JConnv. Conn. IP. Wms. 667. **" ' ■ ' Cited, Hinde, 391 ; Pasch. 1781. -•■■ ' • .:" ' ^ ;■ 14 . * ■:" ■■ 594 KVIDENCK. from the strict practice, if it were posHiblo in any case to dispense with it, Lord Thiirlow at first made the order, but upon further cdn. sideration, and before the order was delivered out, he altered his opinion, and refused it. An order for leave to use a deposition, taken de bene esse, oul witness dying before he could be examined in chief, may be oh. tained on special motion with notice, supported by evidence provini' his death, in the ordinary way.^ ^••■■.t aiMi 4* Where the application is made upon the ground that a witness is I gone to parts beyond sea, or upon any other grounds, it must m supported by an affidavit of the facts relied upon as the foundation I of the application. The proper stage of the suit wherein this application should be made, seems to be after the closing of the evidence,^ unless it is in a suit, the sole object of which is the examination of a witness (f«| bene esse, for the purpose of using his depositions on a trial at Law: in which case, the application should be made before the trial of the I action. The party moving should be prepared with an affidavit of j service of the notice of motion, in order that, if the other side does[ not attend, the order may, notwithstanding, be obtained. If any irregularity be discovered, or the adverse party be advised! of any ground of objection to the reading of the depositions, he I should give notice in writing to the adverse solicitor, and move tol discharge the order iuvmediately upon the service of it, or on the! earliest opportunity : for it seems that, although depositions taken! de bene esse are ijiegalar, yet it is too late to object to them, on thcj ground of irregularity, at the hearing of the cause' ; and on this ac-j count, when the time between the closing of the evidence and thel hearing of the cause is short, the Coui-t will extend it, for the purl pose of allowing the party an opportunity of examining whetherj the depositions are regularly taken or not.* And so, where depa^i-f tions taken de bene esse ai-e read at the hearing of the cause, it is &| 1 Hinde, 388. 2 Hinde, 388. 3 Dean and Chapter of Ely v. Warren, 2 Atk. 189 ; Hindo, 389. 4 OonJwi V. Gordon, 1 Swanst. 171. m EXAMINATION OP WITNESSES DE BENE ESSE. 595 I matter of course, if an issue is directed, to order them to be read at the trial of the issue, notwithstanding an irregularity in the exami- nation.* With respect to the costs of examinations de bene esm, no specific rule appears to have lieen laid down, which makes any distinction between them and tht; rosts of examinations under ordinary circum- stances : except, indeed, in the case of bills filed for the purpose of having witnesses examined de bene ease, in order to render their evidence available on a trial at Law. In such cases, it is presumed, the costs must be regulated by the rule of the Court with regard to bills of a similar description, namely, bills to examine witnesses in 'perpetuam rei memoriam : in which case, a defendant is entitled to apply for his costs immediately after the examination of the witnesses has been perfected, upon the simple allegation that he did not examine any witnesses himself.^ It may be mentioned, that in Dew V. Clarke,^ where the plaintiflf had filed a bill for the purpose of obtaining the examination of witnesses de bene esse in aid of a proceeding at Law, and obtained an order, ex parte, for the exami- nation of such witnesses, but afterwards the bill was demurredi to, •« and the demurrer allowed, the Court, besides the usual costs of the demurrer, allowed the defendant his costs of the examination, but not those occasioned by his cross-examination of the witnesses. 1 ■I I Section XIII, — Demurrers by Witnesses. A witness examined before an examiner may protect himself, by demurrer, from answering any question to which he has a legal [ objection. The word " demurrer," however, is not, in this instance, used in a very appropriate sense : since it here signifies merely the witness's tender of reasons why he shoiild not answer the question;* uid is not, like a demurrer in pleading, confined to the facts appear- ing upon the record, but states the facts upon which the witness I relies as the ground of his objection. The grounds upon which a witness may protect himself from |»n8wering are, principally : 1. That the answer may subject him to J 1 s'^Vim!*''^' * ^- * ^- 1^ : Morgan & Davey, 68, 149. ♦ Parifcurrt V. Lowten, 2 Swanst. 104, 208. • <«- m 596 EVIDENCK M pains and penalties, or to a forfeiture, or something in the nature of a forfeiture ; 2. That he cannot answer the question without a breach of professional confidence. 1. With respect to the first ground of objection, namely, that the answer may expose the witness to pains and penalties, or to a for- feiture, or something in the nature of a forfeiture, the reader is re- ferred to a former part of this Treatise,^ where the privilege of a defendant, to be protected from making the discovery required by the bill on this ground, has been discussed. It will be there found, that the privilege in such cases arises from an acknowledged princi pie of Law, that no man is bound to answer, so as to subject himself to punishment ; and as this principle is applicable as well to wit- nesses as to defendants, the rules which are there found laid down with regard to its application to the latter case are equally applica- ble to the former.^ 2. The rules of exemption from discovery, on the ground of pro- fessional confidence, proceed upon the same principles as are appli cable to the case of defendants ; and the reader is, therefore, referred for informatlcr^ upon this bead to a former portion of this Treatise, where these rules have been discussed with refeience to the protec- tion of a defendant from answering the bill.^ It may, however, Ix- noticed here, that the refusal of a client to allow his solicitor to dis- close professional communications is not a reason for treating him as if he had kept a material witness out of the way, or refused or j prevented the production of a document in his possession.* ,, -' Where the witness is served with a suhosnu duces tecum to pro- duce a deed or other document, and, upon being asked to produce I it, objects to do so, either uppn the ground of his having an interest in the deed, or upon any other ground,^ he may refuse, without a 1 AtUe. 2 See 2 Phil, on Evid. 487, f seq. ; Taylor on Evid. s. 1308, et geq. ; Best on Evid. s 126, et iiq- Oresley on Evid. 80, et seq. ; Osbonie v. The Londmi Doek Company, 10 Exch. 698, 701: 1 J"' N. S. 03 ; Sidebottom v. Adkins, 3 Jur. N. S. 631 : 5 W. R. 743, V. C. S ; Reg v. Boyo., 1 B. * S. 311 : 7 -lur. N. 8. 1168 ; Re Aston, 27 Beav 474 : 5 Jur. N. 8 615 ; 4 Dp G. 4 J. 320; 5Jur. N. S. 770. 3 Ante; see also Greenough v. Oa«*e«,lM. & K. 08, 101 : P. Coop. t. Brou({h. 96; Lord »'fl/«n;' ham V. (ioodricke, 3 Hire, 122, 130 ; Qore v. Bowser, 6Dc G. & S. 30 ; S. C. mm. Gore\. Ham 15 Jur. 1108 : Carptnael v PowU, 1 Phil. 687 ; 9 Beav. 16 ; Thomas v. Rawliim, 27 Beav. IW ft Jur. N. S. 667 ; Manh v. Keith, 1 Dr. & S. 342 ; 6 Jur. N. S. 1182 ; Ford v. Tennant, Si hur 162 : Jur. N. S. 292 ; Charlton v. Coombes, 4 GUT 372 ; 9 Jur. N 8. 534, V. C. S. 4 Wcnttoorth v. Llot/d, 10 H. L. Ca. 589 : 10 Jur. N. 8. 961 ; and see Taylor on Evid s. 101 ; b*""' V. Corporation of Liverpool, 1 M. «; K. 88, 94, 96. 6 Such as, that the production of it may proye him to be guilty of a crime : see Parkhvrit v. ww'" 2Swan8t 214. DEMURRERS BY WITNESSES. 597 formal demurrer. The course to be adopted by the party seeking production, in such case, is to move, on notice to the witness, that he do attend and produce the deed, and pay the costs occasioned by his previous refusal : upon the hearing of wliich motion, the Court will decide whether the reasons alleged by the witness, for his refu- sal, are satisfactory or not.^ Tlie question or questions put, and the demurrer or objection of the witness thereto, must be taken down by the examiner,^ on paper, separate and distinct from the evidence ; but there does not seem ever to have been any particular form for a demurrer by a witness.^ The witness should state clearly the grounds of his refu- sal to answer ; thus, a witness, demumng on the ground that his answer would violate the confidence reposed in him as a solicitor, must name the party to whom he was solicitor.* He must also jwear that the facts, from the discovery of which he desires to be protected, came to him in his capacity of solicitor to a particular person : for a solicitor, like any other witness, is bound to discover all secrets of his client which he did not come to the knowledge of in his relation of solicitor to his client.^ It must also appear, that the knowledge came to him in the character of a professional advi- ser, and in such character only ; and, therefore, where a demurrer stated that the witness was the attorney or agent for a person, it was considered not to be sufficiently precise : for an agent may be only a steward or servant.® In taking down a demurrer, the examiner ought to take the wit- ness's statement upon oath ; and it was held, under the former prac- tice, that where this was not done, the demun'er must be supported by affidavit : as it is necessary the Court should, in some way or other, have the sanction of an oath to the facts on which the objec- tion is founded.^ , The demurrer is transmitted by the examiner to the Reci^rd and Writs Clerks' Office, and there filed ; and copy should be taken by 1 Bradthaw Bradshaw, 1 R. & H. 358 ; Hope v. Liddell, 20 Beav. 438, 489 : I Jur. N. S. 665 ; 7 De Q. H. & a. 331. 2 For the former practice, see Tippim v. Coates, 6 Hare 16 ; 11 Jur. 1075. 3 Morrit v WilliavM, 2 MoH. 342. * Parkhwit V. Lowten. 2 Swanst. 201. • ■ . ^ 6 Morgan v. Shaw, 4 Mad 54, 58 ; Thomat v. Ratclings, ubi mp. 8 VtUlaiU v. Dodtmead, 2 Atk. 624 ; and see Reid v. LangloU, 1 M'N & G. 627, 637 : 14 Jur. 467. 7 rorUttrttT. iowt«n, 2 Swanbt. 201 ; Morgan v. Shaw, 4 Mad. 54: Boiemin v. Rodwell, 1 Mad 266 ; Davig v. Reid, 5 Sim. 443 ; Ooodate v. Oaiothom, 4 De G. & S. 97. As to the course, where • witness Bummoiied before a Chief Clerk refuses to be sworn, gee The Eleetrie Telegraph Com panyof Jrebtnd, Ex parU Bunn, 24 Beav. 137 ; 3 Jur N. S. 1013. i " ! 598 EVIDENCK i the party to the cause who put the question objected to.^ The de- murrer may then be set down for hearing, under an order of course in like manner as demurrers to bills f and the validity of the de- murrer will be decided by the Court. The order to set down the demurrer need only be served on the witness demurring,^ except where the witness, being the solicitor of the party in the cause, claims privilege on behalf of his client : in which case, it would seem. the client should also be served with the order.* If the Court, upon argument, considers the demurrer to be bad, it will overrule it : in which case, an order will be made that the witness attend the Examiner, and be examined, or stand committed.' Sometimes, however, where the ground for overruling the demur- rer has been its informality, and the Court has considered that the witness may have a good reason to be excused from answering, it has ordered the demurrer to be overruled, without prejudice to the witness, upon his re-examination, objecting or demuning to the question, as he may be advised, upon such grounds as he shall state in such objection or demurrer.® Sometimes the Court will allow a demurrer partially ; thus, in Davis V. Reid,^ where a demurrer was put in to two interrogatories, Sir Lancelot Shadwell, V. C, allowed the demurrer as to one, and part of the other ; and directed that half the costs should be paid by the witness : in analogy to the practice when two exceptions are taken, one of which succeeds and the other fails. Instead of setting down the demurrer for hearing, the party who asked the question objected to, may move that the witness may at- tend the Examiner at his own expense, and be further examined. Notice of this motion must be served upon the witness.^ Upon hearing this motion, the Court either allows the objection f or di- rects the witness to attend before the Examiner at his own expense." 1 Braithwaite's Pr. 630. 2 Braithwaite's Pr. 639. For form of order to set down, Bee Seton, 1267, No. 10. 8 Braithwaite's Pr. 639 ; 6 Hare, 22, 24. 4 Marriott v. Anchor Revergionary Company (Limited), 8 Oifl. 804 : 8 Jur. N. S. 61 : and aae Ttjf- pins V. Coatet, 6 Hare, 16, 23 ; 11 Jur. 1076. 6 Parkhurit y. Lowten, 2 Swanst. 206, 206. 6 Morpah v. Shaw, and Parkhurtt y. Lowten, uii tup, 7 6 Sim. 443, 448. , , 8 Re Aaton, 27 Beav. 474 ; Jur. N. S. 615 ; 4 De O. & J. 820 : 6 Jur. N. S. 779 ; Marriott v. AmM Reveriionary Company (Limited), 3 Giff. 304 ; 8 Jur. N. S. 61. As to service, where the wltM" is n solicitor claiming privilege for hii client . we tb. ; ante. 9 Marriott V. Anchor Revernonary Comj>ti»i: (Limited), tM eup. 10 Re Atton, ubi tup. ■(■■": SETTING DOWN THE CAUSE FOR HEARING. 599 The costs of and occasioned by the demurrer, or objection, are in Ithe discretion of the Couit •} and will be disposed of at the hearing if the demurrer or motion : the general rule being, that they follow Ithe result.2 , CHAPTER XIX. SETTING DOWN THE CAUSE FOR HEARING. By the present English practice the evidence is taken before Ex- aminers, of whom there are two permanent ones, or before special Examiners, who are appointed as occasion may require. Under the old practice the depositions were taken on interrogatories and cross interrogatories, but they are now taken as the pleadings simply. The evidence being closed, the next step was to set the cause down for hearing. Our practice differs ; for the evidence is taken before the Judge as at Nisi Prius ; the cause is heard immediately afterwards, and if possible judgment is at once ^ven.' Our Order 169 provides that " Where issue has been joined three weeks before the commencement of the next ensuing hearing term at the place where the venue is laid, publication is to pass at the close of the term." It may here be mentioned that the expression- 'publication is to pass," means that the evidence in the case is to be closed, that no more, nor any (if there have been none given,) shall now be received. It arose from the old practice of having the evidence taking by Examiners, who when it was taken, sealed it up, and it was not allowed to be opened or " published," as the phrase was, until the hearing. After this, no further evidence could be given, and " publication " was then said to have " passed " — mean- ing that the time for receiving evidence having passed, the evidence already taken (if there were any) would be now opened, or made public, and that if there were none taken, the time for taking any had elapsed. . :' -,..; ■ .:, , . - ,.■.■• ' .->■ •/■ ■ ' 1 See Sowyer t. Birehmore, 8 M. & K. 672 ; LangUy v. FUher, 6 Beav. 443 : 7 Jur. 164 ; 14 L. J. N. B ' Wright V. Wilkin, 4 Jur. N. S. 627, V. C. E. : Le$ v. Hanvtnertw, 12 W. R. 976, V. C. K, 'Ch»nctiyAct,s. 23. Orden 16«, IW. 1 ';* 1 I- 600 SETTING DOWN THE CATTSE FOR HEARING. ;»»• CZZi As the time for passing publication depends on the place where the venue is laid, Order 158 provides that " Any party to the suit! may apply to the Court upon notice to all parties to change the venue, and thereupon the Court is to make such order as the cir- cumstances of the case requires, and the order is to be made upon such terms and conditions as to costs and otherwise, as the Court I thinks right to impose." Order 160 provides that " Where issue li been joined less than three weeks before the commencement of the I next ensuing hearing term at the place where the venue is laid, publication is to pass at the close of the following term." And Order 161, that " At any time after issue joined, the cause maybe set down for hearing by any party to the cause." Order 162 pro- vides that " If the plaintiff neglects to set down the cause for hear- ing, at the next sittings, at the place where the venue is laid, incase! issue has been joined three weeks before the commencement of such sittings, the defendant may set the cause down for hearing at the next ensuing sittings, or at Toronto, on any Monday on which the Court sits for hearing causes, and may serve notice of hearing on the other parties to the cause." The practice as to changing hhe venue is similar to that at Com- mon Law, and the special grounds necessary to induce a Court of Law to change the venue will in general required to be shewn to this Court. On an application to change the venue, it was objected that publication having passed, the motion should have been to open publication, and to amend the bill by introducing words, changing the venue. A similar case having been mentioned as | heard before V. C. Spragge, in which he gave effect to the objection, but allowed a new motion to be made at once without notice, Mowat, V.C., followed the same course, and on a new motion being I made, granted the application on terms.^ The application should riot be made until after issue joined, or until it can be clearly seen what the issue will be.^ As to the circumstances necessary to be | shewn to obtain an order changing the venue, see Archibald Pr, The mode of setting a cause down for hearing is pointed out by Order 163, which provides, that " Causes set down for hearing are j to be entered with the Clerk of the Records and Writs, or a Deputy 1 Baxter V. Campbell, 2 Cham. R. 39. „ . ,,• 2 Begg v. Forbes, 28 L. J. C. 222 ; Nodge v Churehward, 5 C. B. 406 ; Dewier t. Callit, 4 .M. « « 631. ' , , 7 ^m SETTING DOWN THE CAUSE FOR HEARING. 601 Registrar, at least fourteen days before the eonimencement of the next ensuing term/ at the place where the venue has been laid ; and notice is to be served by the party setting the same down, upon ill parties at least fourteen days before the commencement of the term." Where a defendant set down a cause for hearing before the I time limited by the Orders of 1853 (Sec. 4 of Order 25, which direct- ed, that " 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 " ) and the plaintiff moved to strike the [ cause out of the list of causes for hearing for irregularity. The case was ordered to be struck out with costs ; notwithstanding that by the delay on the part of the plaintiff's solicitor to give notice of the irregularity, the defendant was unable to set the cause down again for the ensuing hearing term ; although had the matter been res in- kjra, the application would have been refused.^ Order 414 provides, that " Terms for the hearing of causes (in- eluding examination of witnesses), are to be held twice a year at Toronto, and at such other places as the Court from time to time appoints." Order 165 provides, that " Where the hearing is to be had in any term or place other than that in which the pleadings are filed, it shall be the duty of the party setting down the cause to deliver to the Clerk of Records and Writs, or the Deputy-Registrar with whom the pleadings are filed, a sufficient time before the day fixed for the hearing, a precipe, requiring him to transmit to the Registrar or Deputy-Registrar, at the place where the hearing is to be had, the pleadings and such other papers as may be specified in the precipe, and at the same time to deposit with him a sufficient sum to cover the expense of transmitting and re -transmitting such pleadings and papers ; and therefore it shall be the duty of the Clerk of Records and Writs, or Deputy-Registrar, forthwith to transmit the pleadings and such other papers as may be specified, accordingly." In pursuance of the authority given by Sec. 23 of the Chancery . Act (C. 12, Con. Stat. U. C), the Court "has divided the Province into three Circuits, and has appointed a number of County Towns i 1 These are "clear" days. Beard v. Gray, 1 City of- Toronto v. M'Oai, 1 Cham. R. 16. ■.;a; 3 Cham. R. 104. ■i^i: K.'M. r.yv 002 SETTING DOWN THE CAUSii: FOR HEARING. m ' r as places where witneHses may be examined and causes heard. Thei time of holding these Courts (which are very similar to the CoiiitsI of Assize and Nisi Prius), is fixed fxom time to time by the Court,! and this -time is known as " Examination and Hearing Term." Atl the time appointed, the Judge who has been assigned to the partic-l ular Town appears, with the Deputy-Registrar (in an outer County J and the Registrar in Toronto ; and proceeds to hear the pleadii read, and to receive the evidence viva voce, as at Nisi Prius. Order I 166 provides, that " No evidence is to be used on the hearing of a cause other than the examination of a party under Order 138, 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." And Order 16S, that "When a cause is [ ''"J^ed on to be heard, the witnesses of all parties are to be examined, '. tc-^ the Court, upon a previous examination, has postponed the uxaiaination ; or unless the Judge before whom the cause Is brought on sees fit to postjione the examination, or to allow time for the proviiictio.. uf fiu'ther evidence; and where the examination is post- poned, or where time is allowed for the production of further evi- dence, the order is to be upon such terms as to the costs or otherwise, as the Court thinks right to impose." , Order 170 provides, that " A defendant may be examined as a witness without an 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. A pJaintiflf may be examined, with- out an order, under singular circumstances, by a co-plaintiff or by a defendant." Order 171*, that " Such examination is not to pre- clude the Court from making a decree either for or against the party examined, and the evidence given on such examination may be rebutted by adverse testimony." By Order 172 it is directed, that " A witness may be re-called for further examination, as in trials at nisi prius,. without any order of the Court having been obtained for that purpose." It was formerly the practice in England when the evidence was taken by interrogatories and cross-interrogatories, to discredit a wit- ness by filing, objections, or as they were called " Articles," against him, in w\!ou he was charged with such conduct as would damage his character, and tend to shake or destroy confidence in his testi- T SETl'INa DOWN THE CAUSE FOR HEARING. 603 bnv, These " Articles " were in the nature of an indictment, and Itnesses were called to substantiate them. This was of course ne between the time of taking the depositions and the hearing ; [t this practice is discontinued, and our Order 173 provides, that rticles are not to be filed for the purpose of discrediting a wit- i ■ but witnesses may be called for that purpose, without leave [the Court, and they are to be examined at the same time as the her witnesses, unless the Court otherwise orders." This Order gimilates the practice to that of the Common Law Courts at Jiisi iu8. Order 174 provides, that " Any party is to be at liberty to ke use of the evidence of a witness adduced by another party to ke suit." Orders 175 and 176 have already been noticed. As to the evidence, it may be said generally, that the practice as to fte taking of evidence, — the right to begin, — the examination in hief— cross-examination, and evidence in reply. — evidence as to be credit or character for credibility of witnesses, — examinations on lie voir dire as to interest is the same as obtained at Nisi Prius, icept where the difference has already been specially pointed out. erthe evidence is closed the argument is heard. Order 169 pro- [ides, that " Causes are to be argued at the same time that the ritnesses are examined." ^ 1 Before proceeding to consider the Hearing, there are some orders If minor importance, which, however, require notice. Order 177 provides, that " Exhibits put in at the hearing of a cause are to be fked thus : ' In Chancery (short title). This Exhibit (the pro- ertyof ) is produced by the plaintiff (or deferidant C, ^ theme may he), this day of 186 , A.B. {Registrar brJ)epttf2/ Registrar). Order 178 provides, that "Where a party pr witness is examined at the hearing of a cause, or a document is put in as evidence, and marked by the Registrar or the Deputy «gistrar, the deposition of the party or witness so examined, or be document so put in, is not to be withdrawn as evidence without Ithe leave of the Court." And Order 179, that " Where judgment Ii8 reserved, the exhibits used upon the hearing must be deposited jwitii the Registrar or Deputy Registrar, for the use of the^ Court. jAll exhibits deposited under this order must be described in a ale, to be prepared by the party depositing the same. The JKhedule shall be in duplicate, one copy of which, signed by the 604 SETTING DOWN THE CAUSE FOR HEARING. !--«•* ^*— »•• Registrar or Deputy Registrar, shall be handed to the party depositJ ing the exhibits, and the other retained for the use of the Court! Where this order has not been complied with, the case will not considered as standing for judgment." Order 180 provides tli " Where it becomes necessary to adduce evidence, or to incur ku pense otherwiRe, in order to establish or prove facts, which in thi judgment of the Court, upon the hearing of the cause ought to havd been admitted, it shall be competent to the court to make such order in respect to the costs occasioned by the proof of such factej as under all the circumstances appeai-s to be just." With regard to the marking of exhibits, care should be taken 1 this be done, for it has been decided that documents used on iU examination of witnesses before an examiner must be properh-j marked by that officer, and referred to in the evidence, otherwisd they cannot be read at the hearing.^ Referring to the practice in " publication," the Court will, in proper case allow the examination of witnesses after the passing od publication ; and this is called " opening publication," or they willj enlarge it. Where publication had passed shortly before a motion to open was made by the plaintiif, and it appeared on the motionl that the defendant had examined witnesses, but the plaintiff had! not examined any, and the plaintiff and others swore that his evi- dence was material and that the delay had arisen from the povertyj of the plaintiff, publication was opened on payment of costs^ Wherel on the examination of a witness on 24th January, a person's namej was mentioned as having been resident on the lot adjoining the! premises in question in the cause, and on the 28th of March, afterj publication had passed, the cause set down for hearing, and a sub- pcena to hear judgment served, the defendant moved for leave tol open publication and examine as a witness the person whose namej had been mentioned, and who, he had sworn, could give raateriall evidence ; but the motion was refused with costs.^ QucBre, whether! upon an application by the plaintiff for a stay of proceedings, tol which the Court considered him not entitled, an enlargement of j publication can be ordered, when an order in that form would pari 1 Bollywood V. Waters, 6 Grant, 329. \ - "i < ^ 2 Taylor v. Stioff 3 (Jrant 153. ^ . , . i 8 Waters v. Shade, 2 Grant, 218. See the particulars required in a petition to be allowed to pmu' J newly discovered evidence after the hearing of a cause, stated in Maton v. Seney, 12 Onnt, i« r I SETTING DOWN THE CAUSE FOR HEARING. 605 yiy accomplish what the plaintift" desired by his motion. QucBre^ whether this Court would enlarge publication ho as to enable a Ljjjtitf to be present at the viva voce examination of the defen- it where such examination had been ]iostpoued by an accident If which the defendant or his solicitor was the unintentional cause, [ill after the plaintiff's 'departure from the Province on pressing Ibusiness, and the plaintiff swore that it was necessary for his inter- lests that he should be present.^ An order made on a motion to I dismiss, giving leave to go to examination, has the efiect of opening lpublication.2 Where it was considered conducive to the ends of I justice, publication was opened and leave given to examine further I fitnesses, and to issue a foreign commission on payment of costs, and upn the terms of examining the witnesses in Canada at the next examination term, and the witnesses residing out of Canada at the same term, or by foreign Commission in the meantime; if the latter, the commission to be returned and depositions disclosed two weeks before the exaipination term, it appearing not to be owing to the negUgeuce of the party applying that the evidence had not been taken before.^ The Court refused to open publication in order to obtain evidence of an alleged conversation between a person men- tioned in the pleadings, and one of the defendants.* The principle laid down by the Court in Waters v. Shade (2 Grant 218), in respect to opening publication, applies as well to suits for alimony as to other cases.^ The fact that a defendant in a cause has since the filing of the bill temporarily left the jurisdiction of the Court, is no ground for postponing the examination of witnesses, and the hear- ing of the cause.^ Where a cause was brought on to be heard at the suit of the Attorney General for the repeal of a grant of land alleged to have been issued by mistake, and the evidence adduced did not sufficiently establish the mistake ; the Court directed the cause to stand over for the purpose of adducing further evidence.^ A defen- dant having by his answer, set up several matters of defence which, through oversight, he had omitted to give evidence of, the Court, at the hearing, directed the cause to stand over, with liberty to both parties to give evidence upon those points.^ The Court will not di- 1 HmoeiUt v. Rees, 2 Grant. 437. * 1 Wnr V. Weir, 1 Cham. R. 194. • . = i 3 mn V. Tenryberry, 1 Cham. R 104. 4 Malloeh V, Pinhey, 1 Cham. R. 105. ... 5 JfcZav V. JlcZoj/, 6 Grant, 279. .,.•,,•;: , « QWfrroftfc V. Gurney, 1 Cham. R. 279. < r-y \ lifto^m-Oenemlv. Oarbutt,6Qrmt,lSl. -r . i . 8 A(>rt% V. Jf oore, 5 Grant, eOO. v'- ■••■• '* J I 606 SETTINO DOWN THE CAUSE FOR HEARING. cr. :ai«* "^m^ rect the examination of witnesses to take place before an Examinej in a county where no resident Master has been appointed, althouir consented to by the jiaiiies.^ A cause was set down for the exa nation of witnesses, and when called on the plaintiff was not pn pared to [)r(»ceed. It was decided (overruling the decision in Wall lace V. Mackay,^ ) that the defendant wa3 entitled to have the mi struck out of the paper with the costs of the day.^ After judgmeni had been given in a cause, an application was made to open publij cation on the ground that since the decree had been pronounced, m was discovered that a material witness in the cause was beneticiallil interested in the setting aside tlie will, which it was the object ( the suit to have declared void, and had entered into an agieeraenll to indemnify the plaintiff from the costs ; but as the result wouldl have been the same had that witnesses' testimony been out of the! case, the Court refused the motion, but offered the defendant who| applied, liberty to give evidence to establish the fact of interest the witness, in order that, in the event of the cause going to appe his evidence would not appear there as that of an unbiassed witness.*! Where the plaintiff examines several defendants before answer, thel examination of the one cannot be read against the other defendantel at the hearing of the cause.^ Where a cause is withdrawn on ac-i count of the absence of a necessary witness for the plaintiff, and he I shews that he has made diligent efforts to secure the attendance of such witness who is residing within the jurisdiction, but fails to secure it ; the costs of putting off the examination will, as a general rule, be costs in the cause. In all other cases the costs will be dis- posed of according to circumstances, and in tlie discretion of the Judge.* Where a motion to postpone the hearing of a cause was made before the Secretary in the same day the cause was to be heard in another county, he refused the application.' Where the defendant s solicitors, through the neglect of their clerk, were not j aware until after the hearing that the cause had been set down or notice of hearing served, and the question raised by the answer was as to the defendant's liability in a judgment recovered against him by his solicitor, the Court allowed a new hearing after the decree 1 /»A«Ain V. Pfteton, 6 Grant, 884. 2 1 Cham. R. 67. 3 Cohourg & Peterh(rro' Railway Co. v. Covert, 7 Grant, 411. 4 WaUrhowe v. Lee, 10 Grant, 176. 6 Douglass v. Ward, 11 Grant, 89. 6 Pattison v. McHab, 12 Grant, 483. 7 MeEunn t. Orde, 2 Cham. R. 280. SETTIN(} DOWN THK CAUSE FUK HEARING. 007 Las drawn up and entered, on payment of costs. The application for such a purpose shoukl be by petition to the Court, and not by motion in Chambei's.^ A motion was granted for postponing tlie hearing and examination of a cause, on the ground of the absence of a material witness after notice of hearing has been given, although the cause has been at issue for some mouths previous. The costs of such a motion are costs in the cause.^ It is the practice to make the costs of postponing the hearing of a cause, where sufficient grounds are shewn for such i)08tponement, cost in the cause. The engagements of a witness who was a Senator of the Dominion and a member of the Execu' ve Council, at his duties at Ottawa, where the Senate was in session, were deemed sufficient excuse for not procuring his attendance, and good grounds for putting off the hearing.* Where a commission to take evidence abroad could not be executed in time, by reason of the illness of the Commissioner, the plaintiff was allowed fui-ther time to set the cause down for ex- amination and hearing.* '^ CHAPTER XX. HEARING CAUSES. m Our Order 164) provides, that " The clerk of Records and Writs, or the Deputy Registrar, is to prepare a list of all causes entered for hearing, and each cause is to be entered in such list in the order in which it has been set down, and causes are to be cb'i ^ on accord- ing to the list." But, it frequently happens that the Court, upon a proper ground stated, will order a cause which has been set down for hearing to be taken out of its turn : for the Court holds, that a defendant IflwoBonv. Benwon, 2Cham. R. 284. v:% \ 9nham v. MaoheU, 2 Cham. R. 376. »««*». iiftortk-j/Genera/, 2 Cham. R. 386. iMtintyre v. Canada Company, 2Cham.R. 464. .? . .-; . . ,; . .-; ,/ .. i, . .,.; .; r • 1- ,1 "1 ■f If: 608 HKARINO 0AU8KS. »•» has no right to object to a cause being heard, at any time, after it has been set down I'oi- hearing.* Thus, where, in a suit for the specific |>erforniance of an agreement to acc(jf>t a lease for a teriudt' years, the plaintiff applied to the Court to have his cause advanced, on the ground that the term of years would expire before the cast could come on in its legular course, the order was made : on the plaintiffs undertaking to give due notice of the advancement tu the defendant;^ and if in such a suit the plaintiff not apjily to have the cause advanced, and by liis delay allow.-, the time t Sometimes, a cause will be advanced to the head of the paper, pro forma, to enable a witness attending from a public office in the country, to prove a document. Thus, where an application was made to the Court, that a cause, which was not in the paper for the day, might be immediately called on, for the purpose of proving a will, the proper officer having come up from York with the original for that purpose, and being detained in town at a considerable ex- 1 Hoyle v. Livesey, 1 Mer. 381 ; Rawson v. Samuel, C. & P. 181, 182. ' i ■ 2 Hoyle V. lAvesey, ubi sup. " i > 3 DeBransae v. Martyn, 11 W. R 1020, V. C. W. ^ White V. , cited 2 Mad. Pr. 588. 6 Bradish\ Gee, Amb. 229; Harrison v. liwnsey, 2 Ves. S. 488 : Belt's Sup. 413; Toder v. Samm, 1 Bro. P. C. ed. Toml. 463 ; Seton, 1120. 6 Bradith v. Oee, ubi sub. ; Davenport v. Stafford, 8 Beav 503, 523 ; 9 Jur. 801. 7 Mole V. SmUh, IJ. & W. 673 ; Bradi^k v. Gee, ubi mp. ; Re Hobler, 8 Beav. 101: r«"|r; Turner, 2 De G. M. & G. 28, 37 ; Swxnjren v. Swin/en, 24 Beav. 649 : 3 Jur. N. S. 1109 ; 2 Dei- jc J. 381 : 4 Jur. N. S. 774 ; Seton. 1121. w HKARIXO OATTSES. fiOf) ler V. Sansam, ponse, the ai)pli«'ation was granted ; and tlio rause having bet^ii called on, the will was produced ^y the proper officer to the Regis- trar.' •' ■ ^•.•-. ' • ^ - ^ Where original and cross causes ai*e set down, and other causeR intervene, the plaintiff in either cause may (if necessary), move for loaw ti) bring forward his cause, or that his cause may stand ad- journed, as the case may be, in r)rder that hoth causes may he heard tof^ether.^ Upon an application of this sort, it may ho necessary to request that the evidence taken in the original cause may bo read at the hearing of the cross cause, and the con verse.'' Our Order 181 provide that " The solicitors for the seveml parties are to attend in Court when a cause is api)ointcd to be heard, and during the hearing thereof" And Order 182 that " Where, upon the healing of a cause, it appears that the same cannot conveniently |)nii'oed by reason of the solicitor for any party having neglected to attend personally, or by some person in his behalf, or having omitted to deliver any paper necessary for the usi of the Court, and which, according to its practice, ought to have been delivered, such solicitor shall personally pay to the parties such costs as the Court thinks fit to award."* The solicitor is personally liable under this or«ler.'^ The client will not be relieved of the consequences of the solicitor's neglect in ignorance of this rule without the consent of the other party.* The causes in the list are called on in the order in which they there stand. If, ujion a particular cause being called and the bill opened, the defendant does not appear, the plaintifl' must prove service upon him of the notice of hearing ; and the Court will then make such a decree as, upon the pleadings ami evidence, the plaintiff is entitled to.' -rr. ■ . . . - Our Order 183 provides that " Where a defendant makes default at the hearing of a cause, the Court is to make such decree as it 1 ii)o;., 4 Mad. 271. i Hinde, 415. 3 Ante. For form of order, see Seton, 1275, No. 2. 4 Cmirtney v. Stock, 2 Dr. & War. 251 ; and see GaUemore v. GUI, 2 Jur. N. S. 1178 ; 4 W. R. 773, as to the duty of solicitors to have original documents in Court. J ^i T. Bnmnhead, 10 Ves. 133. 6 WalmaUy v. Proude, 1 R. & M. 334 ; and sf.e Harvey v. Renmi, 12 Jur. 445, ante; Attorney- , General v. Fellnwes, Mad. 111. ( HiUrewll V. Webber, 9 Hare, 541 : Brotone v. Smith, 6 Jur. 1196, V. C. W. ; Hughes v. Jonea, 26 Beav. 24 .Seton, lia. »5 :? -1 (>1() HEARING CAUSES. c::3^ 0li- thinks fit. This decree is to be absohite in the first instance, withouij giving the defendant a day to show cause, and is to have the force and effect as if the same had been a decree nisi in the fir instance, and had been afterwards made absolute in default of cause! shown by the defendant." Formerly, the last cause in the pape was privileged ; but this is no longer the case.* ' Where a decree was taken by default, in consequence of thel negligence of the clerk of the defendant's solicitor, Sir Jobl Romilly, M. R., refused to restore the cause to the paper ;2 but, in i subsequent case, the same Judge, on the motion of the defendant! allowed the case to be reheard, and modified the decree, upon the defendant paying all the costs subsequent to the original hearing,] and reserving the costs up to and including the original hearing. The case, however, it should be mentioned, was a claim, and was| heard on motion.^ The same course of proceeding, mutati. mutandis, as, that ado})ted where the plaintiff has set the t .e down and does not appear, may be taken where the cause has been set down at the request of the defendant, and the plaintiff does not appear. In such cases, the decree pronounced by the Court will be for a| dismissal of the plaintiff's bill against the defendants, with costs absoutely;* but the defendant can take no advantage of the plaintiff's non-appearance, unless the notice of hearing appears to have been properly served : for, otherwise, the plaintiff is in no default." Where the cause has been set down by the plaintiff, and the defendant's counsel is ready and appears, and no counsel appears foi the plaintiff, the Court always calls upon the defendant to prove service upon him, such defendant, of the notice of hearing.^ This must be done by affidavit, in the manner before pointed out ; and if the Court is satisfied that the notice has been served, will make a peremptory decree dismissing the plaintiff's bill with costs ;^ ami v,» h**? • ,■■ *^ 1 Flower V. Oedye, W Bea,T. i49. '-^^ ■ -J" • • ; i. .. •. 2 Ibid. 9 Hughes v. Jones, 29 Beav. 24 ; Seton, 29 ; Reealao Hale v. Leieit, 2 Keen, 318. 4 Hlnde, 407, 413 ; Clark v. Wilson, 24 Mav. 1775. For form of decree In such ewe, sc« .Setnn, iK . No. 4 5 Hinde, 418. « Riga v. Wall, 8 M. A C. 505 ; 2 Jur. 1080. - ,• .i A , 7 Hinde, 419. '■''. JS HKARIX(i CAUSES. 611 such dismissal, unless the Court otherwise directs, will be equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter.^ Where the plaintiff, an executor, did not appear at the hearing, and the bill was dismissed with costs, the Court refused, with costs, an application by the plaintiff to have the cause restored to the paper, on the ground that he had, seven months previously, become bankrupt, and believed that his rights passed to his assignees : which (he suing as executor,) was not the fact.^ Where, how- ever, through the neglect of his solicitor, no one appeared for the plaintiff, the Court, thinking under the circumstances that the neg- lect was satisfactorily explained, ordered the cause to be set down r;rain for hearing.' . It is to be observed that if the plaintiff sets down his cause, but does not serve the defendant with a notice of hearing, the defendant cannot have a decree to dismiss ; but should, if he wishes to have the suit decided, himself set the c^use down to be heard, and serve a notice of hearing on the plaintiff.^ It sometimes happens, that a person who has not been served with a notice of hearing, or who has not appeai'ed in the cause, is willing to be bound by the decree : in such a case, the rule seems to be, that any party named as a defendant to a bill may, with the consent of the plaintiff alone, appear at the hearing of the cause, and be bound liy the decree, although such party has not appeared in the suit ; hut a person, who has not been name i8e«on<«. . • , .,....„ i D^ V. MorfU, 1 Hare, 413, 419 ; Me the reniark« on thii oaaa In the note to Lev>it v. Clowei, 10 Hwe, App. 62 J aud see ante. KtelKtU V. Momittgt■ '■' '>■ i' ■■- ■■ " ■• <• ■ The allowance in respect of fees to such persons will be regulated by the Taxing Master.^ The certificates, however, of such persons, 1 Ante ; Rowland v. Slxirgit, 2 Hare, 520 ; Chalk v. Raiiie, 7 Hare, 393 : 13 Jur. 981 ; Seville v. fttzgenM, 2 Dr. & War. 530 ; contra, Jone» v. Orimth, 14 Sim. 262 : 8 Jur. 733 ; and see ^Yil- kmiion V. Fowkeg, Hare, 692 2 Barker v. Wyld, 1 Vern. 140. 3 Innnera], thefeesaUowed accountanti will be regulated by those allowed them in bankruntcv . Mtymott V. Meymott, 10 Jur. N. S. 716 : 12 W. R. 096, M. R. (114 HEARINCJ t;AVSE«. although entitled to great weight, are mjt to be cousidered in any other light than as furnishing materials for the information and guidance of the Court ; and affidavits may, therefore, be recei^•e^l in opposition to them.^ The Court will not obtain the assistance of any scientific person, until an issue has been raised between the parties to the suit.^ . ; I i ',< -Jli. l-'t:' Where, after a cause has come on to l)e heard, it has been dis- covered that, through inadvertence, although witnesses have been examined, no re])lication has been filed, the Court has permitted a replication to be filed nunc pro turu;.^ v : If a cause heard on bill and answer is dismissed, with liberty to the plaintiff to reply within a limited time after such hearing, on payment of costs, and the plaintiff does not pay the costs and reply within that period, the dismissal must stand ; and, being signed and enrolled, may be pleaded in bar to a new bill for the same matter.* It has been before stated, that the proper time for taking an objection at the hearing for want of parties is after the pleadings are opened, and before the merits ai-e discussed : though the Court has frequently at a later period permitted the cause to stand over, for the purpose of adding parties* With respect to the question of costs in such cases, it will be sufficient to refer to what has been before said upon ^he subject * and to add that, if a cause comes on again, after it has been put off by the Court>for want of formal parties, an objection for want of other parties which might have been made in the first instance, comes too late.^ If a cause, instead of being ordered to stand over for want of parties, is struck out of the paper, so that it is necessary again to set it down, and to serve fresh notice of hearing, the defendant, if the cause is again set down, is, as we have seen, to be allowed the taxed costs occasioned by the first setting down, although he does not obtain the costs of the suit.* 1 Per L. J. Turner, in Ford t. TyiUe. 10 Jur. N. 8. 429, 480 ; »nd see HUl v. King, 9 int. N. S. 6J7, L. C. 2 Stoken V. City Ofiem Company. 18 W. R. 687, V. C. W. _ 3 Rodney v. Hare, Mw. 29«; Wyfttt'sP. R 37«. ^ ' . 4 IPrax. Aim. 18. ■ . t,. f, Ante. * ■ ""-^ • ' '■"" 6 Ibid. t 7 Jonf»y.J(meH,i Kik. 817. '. > •,. 8 See ante. , ,. . " " '"' "■"-'•'- HEARING CAUSES. 615 In the 'matter of Lord Portsmouth} Lord Eldon, before going into [lis private room, for the purpose of proceeding with the further learing of the petition and affidavits privately, according to appoint- nent, desired that it might be understood that it was the uniform Lractice in Chancery, as long as the Court had existed, in the case hf family disputes, on the application of counsel on both sides, to liear the same in the Chancellor's private room ; and that what was -- (done was not the act of the Judge, but of the parties themselves ID such family cases ; but it has since been held, that a cause may directed to be heard in private, although such course is not oDsented to.^ • # It is the practice in England to state the evidence in the decree, tut our Order 185 provides that " The evidence read upon the Uring IS not to be stated in the decree, but must be entered in the Tistrar's book, at the time of the hearing.' II !' riT DECREES AND ORDERS. Section I. — Oeneral Nature of Decrees and Orders. A decree is a sentence or order of the Court, pronounced on tearing and understanding all the points in issue, and determining Jie right of all the parties to the suit, according to equity and good »Dscience.8 It is either interlocutory or final. ,, ? , Aa interlocutory decree is: when the consideration of the particular pestion to be determined, or the further consideration of the cause nerally, is reserved till a future hearing. The further hearing is Jien termed a hearing upon further consideration, or upon the i(l«ity reserved.* ■ v -' • • • •'•■ . .o-i'. »i\ •i'i } IC. Coop, 106. ... ; & B'-ondKnjf, 2 R. 4 M. 638. IS.rrj''-.!!;^": Hlnde.429. •-- ' ^ ^ ^ ' 1^'w !?»?u "**''****""•*'' '"**'"'""'*"''y ""*"** '* Bljrned andenroHed: Ollb. For, Rom. uu ». M * . **• ^^ '• *"** ^^ ***"" '* more gener .lly ap|Mied to decrees In which mmo inquiry I •• w natwr, tithw ot law or of fact, ii directed, preparatory to a final decision : 1 Newl SOS. \%i' • GIG DECREKS AND OllJ^ERS. aim, It seldom happens that a first decree can be final, or conclude J the cause. Thus, if any matter of fact is strongly controverted the Court will, where necessary, direct such matter to be tried before itself, either with or without a jury ; or, if it can be more conveniently so tried, before a Court of Common Law, or at the Assizes.^ Aud where the Court awards damages,^ they may be assessed in like manner. In such cases, no final decree can be pronoimced until tlie issue has been tried. The Court, therefore, in such cases, in the first instance merely orders the issue to be tried ;^ and adjourns the fui-ther consideration of the other questions in the cause, until after | the trial. Sometimes, the object of the suit is a commission to settle the boundaries of lands. In such a case, also, the first decree is not generally final : the further consideration of the cause being reserved till after the commission has been returned.* ^ , But the most usual ground for not making a perfect decree, in the first instance, is the necessity which frequently exists to make inquiries, or to take accounts, or sell estates, and adjust other mattei-s : which must be disposed of, before a complete decision caji be come to upon the subject-matter of the suit. There are some cases, in which it is a rule of the Court not to make any decree whatever, till certain preliminary inquiries have been made. Thus, in suits for the specific performance of contracts. the Court will not, in general, permit the question whether a good title can be made or not, to be argued before it, in the first instance : even though the objections to the title are stated, and the questions arising upon them ai-e properly raised by the pleadings.^ The rale is not founded merely on practice, but upon principles which are clearly and accurately defined by Lord Eldon, in Jenkins v. Hih .^ " If," observes his Lordship, " instead of bringing an action of damages for breach of covenant, the plaintiff" oomes here for a specific perfor- mance, the defendant has a right, not only to have such a title as 1 S. 59 of the Chancery Act. And Bee 28 Vic. c. 17, h. 3. 2 Imp. Stat. 21 &22 Vic, c. 27, a. 2. , u „ 8 The Court will not, except by consent, direct the issue to be tried, until the hearing of the ause . George v. Whitmore, 26 Beav. 557 ; Morrison v. Barroto, 1 De G. F. & J. 633, per L J. Turner, 639 ; Bradley v. Bevington, 4 Drew. 611 ; 6 Jur. N. S. 562. , . u ..„h 4 Seton, 588, No. 1. fn suits for partition, further consideration may be adjourned, though suco course is not usual ; Seton, 571, 578. , ^ .^ ,,,,, 5 JenHm v. Riles, 6 Ves. 646, 652. Rose v, Calland, 5 Ves 186, 18* ; Omerod v. ttardman,J>.i^i^ 731, are apparently at variance with this proposition ; but see the observations of lioro r upon these cases, in Jenkins v. UUes, 6 Ves. 664 ; and see Seton, 698, et seq. 6 6 Ves. 668. 1 GENERAL NATURE OF DECREES AND ORDERS. 617 4 scision call the plaintiff offers upon the abstract unauthenticated, but, in con- sideration of the relief sought here beyond the law, to have an assurance about the nature of his title, such as he cannot have I elsewhere. Therefore, the Court never acts upon the fact, that a atisfactory abstract was delivered, unless the party has clearly ! bound himself to accept the title upon the abstract ; but, though the absti-act is in the hands of the party, who says, he cannot object to it, yet he may insist upon a reference : Why ? because the decree I compels the other party to produce all the deeds and papers, in his custody or power : from which reasonable and solid objections to the title may be furnished ; which would never have fallen under the view of the purchaser, unless the Court wrung from the conscience of the vendor that sort of information which a purchaser could by DO other means acquire. Inquiries and examinations also may be tlii-eeted, by which the title may be sifted in a way in which it never could upon a mere abstract, authenticated as the vendor thought proper." It is not to be inferred, from the opinion above expressed by Lord Eldon, that a purchaser may not preclude himself, by his manner of pleading, from his right to such an inquiry ; for his L)rdship goes on to say : " I have never understood, that the rule has gone this length : that the defendant, against whom a specific })erformence is sought, may not by an answer unequivocal, to which he was not drawn by surprise, the propriety of which is not rendered disputable by any subsequent discovery, waive the benefit of this principle ; and come here, saying in effect, he trusts the representation of the plaintiff, without the obligation of an oath upon his conscience : offering, in the first instance, to the decision of the Court one neat dry point ; upon which alone his objection rests. The rule has not been considered so absolute. But such instances, if they have occurred in pmctice, will not shake the rule ; but, formmg an exception, would confirm the general rule."* A purchaser may also preclude himself from his right to such a reference, by agreement,^ or by acts in pais : such as taking possession of the estate, or exercising acts of ownership over it.^ Such acts, how- l6Ve8.654. ' ........... ... , . ,^^ , 2 flute V. Bamett, 2 CoH. 387 : 10 Jur. 87. . ". - 3 rlutumd v. Qrtenf 15 Ves. 694 ; Margravine of Anspach y. Noel, 1 Had. 310, S16 : Fordyee v. £oni, 4 Bro. C. 0. 494 ; Simpnm v. Sadd. 4 De G. M. ft 0. 666, 673 ; 1 Jur. N. S. 467 ; Bmm v. Sttnnn, 24 Beav. 631; and see Sugd. V. & P. 868. i , vwn y. ^1 4t // U18 D£CBE£8 AND OKDJSUS. « m n i-^y- CZ2i ever, will Dot preclude the purchaser froui his right to investigate the title, unless the Coui-t is satisfied, from them, that he inteuded to waive and has actually waived it ; and where such an infereuce could not be drawn from those facts, the Coui-t refused to depart from its ordinary rules.^ I _ ^ . 1 .-11 £ It may be noticed here, that the terms in which the direction for an inquiry, as to the title of a purchaser, is framed, are not to inquire whether he could make a good title at the time of entering into the contract, but whether he can, that is, at the time of the inquiry, make a good title ;* and it has been held, that if the vendoi can show a good title, at any time before the result of the inquiry into the title by the oflScer of the Court has been certified, it will entitle him to a decree.^ And even after the certificate, if the vendor can satisfy the Court that he can make a good title, by cleai'ing up the objections, the Court will make a decree in his favom*.* The question, whether a vendor was or was not able to make a good title, at the time when the inquirj'^ was directed, is a very material one with respect to costs, though not with reference to the decree for a specific performance :^ the rule of the Court being, that a vendor is not entitled to costs, except from the time when his title is certified to be complete ; and that, up to that time^ he must pay costs himself* ^ ■ =» - The time when a good title is shown is not, however, conclusive upon the question of costs : being subject to the general rule, that the costs must be paid by the person who caused the litigation.^ In consequence of the above-mentioned rule, it is the practice, in direct- ing an inquiry into the vendor's title, to direct also that, if it appears a good title can be made, an inquiry be made when it was first shown that such good title could be made f but this further inquiiy is not directed, where the contract for sale itself is not disputed.^ 1 Burroughs v. Oakley, 3 Swaiist. 159, 167; and where waiver is insisted on, it must be aileged by tlie bill : Gaston v. Frankum, 2 De G. * S 5C1 : IB Jiir. 507 : Suu'd V. & P. 342. 2 Lafw/brrfv. PtM, 2 P. Wnw. 629; Parr V Aopenrow, 4 Drew 170; 4 Jiir. N.S.600: 8eton,598, No.l. 3 Mortloek v. Buller, 10 Ves. 292, 315 ; Sugd. V. & P. 264. 4 Paton V. Rogers, 6 Mad. 266. w "" 6 Seton t. Slade, 7 Ves. 266, 279. , 6 Harford v. Purri*r, 1 Mad. 632, 538 ; Wynn v. Morgan, 7 Ves. 202, 206 ; Wilson ". AlUn, 1 J. & W. 623 ; Wilkinson v. Hartley, 16 Beav. 183 ; Seton, 616 ; and see Morgan & Davey, 177, etteq. 7 Monro v. Taylor, 8 Hare, 51, 70: 3 M'N. & O. 713. 725 ; Scoones v. Morrell, 1 Beav. 261, 268; A bbott V. Stoorder, 4 DeG. ft S. 448 ; LyU v Earl qf Varborough, Jolins. 70 : Carrodut v Sharp, 20 Beav. 56; Parr v. Lovegrove, 4 Drew. 170 ; 4 Jur. N. S. 600 ; and see Sudg. V. & P. 061 ; Seton, 616. 617. 8 SetoD, 593, No. 1 : ti6. 698 9 Qtbbim V. Jfortk £a$Um Metrooolitan Asylum JHstriot, 11 Bmt. 1, 6 : t3 Jur. ^2 ; Morrk v. Wilton Jur. N. S. 168, V. C. W. 7' OENERAL NATURE OF D£CH£E8 AND ORDERS. 019 It is to be recollected/ that it is a fundamental principle of Courts Equity to make as complete a decision, upon all the points obraced in a cause, as the nature of the case will admit ; so as to Ireclude, not only all further litigation between the same parties, lot the possibility of the same parties being at any future period tobed or harrassed by other parties claiming the same matter, as }ell as of any danger that may exist of injustice being done to Ither parties who are not before the Court in the present proceed- .»v Acting upon this principle, the Court, in all cases relating to the itribution of the estate of an intestate, before it makes any decree listributing the estate, directs an inquiiy wlio were the next of kin If the intestate, at the time of his decease, and whether any of them lave since died, and, if so, who are their legal personal representa- pyes.' An inquiry of this nature is always directed, in cases in ifhich any part of the property in question in the cause devolves kpon the next of kin : whether it be upon a total, or upon a partial pr constructive intestacy. It is not now the pi-actice, however, to nake the inquiry preliminary to the taking of the accounts, as was lormerlv the case.' V In other cases, also, in which there is a fund distributable amongst ersons constituting a particular class, consisting of numerous ndividuals, as in the case of a bequest to the cousins of a testator, Ihe Court will, before it directs any steps to be taken towards a jistribution, satisfy itself, if necessary, by an inquiry that all the Inilividuals, constituting the class amongst whom the fund was dis- Iributable, are parties to the proceeding.* It also adopts the same pirse of proceeding, where the property is distributable between line or two or more classes of individuals.* A decree of this descrip- lion is not properly a decree in the cause, but rather a preliminary nterlocutory order, with a view to inquiry, before the Court can do nything determining the rights of the parties.® In like manner, where the plaintiff, at the hearing, establishes a mm facie title to the character in which he sues, but not such as ISeeonft. ■•'•■•'-■ - ■'•■• ■ '■ ' - •" : •• ■ •"■ ■■■'■" ' I \ t^^'}*^< ^^- ' : 180, No. 3 ; 182, Nos. 1, 3. 5 Seton, 186 Whether the inquiry bI by the Judge in Chuabera, in etc : f?r .'<*"«» onnquinr in theM cues. ihall bis preliminary to talcing^ the accounts, will he determined each case. i I . .... nquiry in these cases, see Seton , 182- 184, Nos. 2—10. I 9 intf, i' - ■ J''- •SMffoneoodv. ,«teft«m«(fc#, 12Ve8. 811. S16. ' "^ '' ' '' ^* '"*''-'^ G2() » UiJ- DECREES AND ORDERS. ■ J IJ »■> entitles him to a decree, the Court will direct an inquiry as to the facts on which his title depends.^ , - It is to be observed, that the reservation of further consideration is not confined to the firat decree, but will be repeated in even- decree in which it may be necessary to direct an inquiry ,2 It is also to be observed that, after such a resei-vation, the Court will not interfere upon the matter reserved in a summary way, but will require the cause to be set down for hearing.' When A decree does not adjourn the consideration of the cause, it is said to be a " final decree ;" and, when duly signed and enrolled, I may be pleaded in bar to any new bill for the same matter. Of| this nature is a decree dismissing the plaintift's bill : which, as we have seen before, may be pleaded in bar to a new suit, unless accom- • panied with a direction that the dismissal is to be without prejudice to the plaintiflfs right to file another bill. Directions of this sort are inserted, where the dismissal is occasioned by slip or mistake in the pleadings, or in the proof. Thus, formerly, where a bill was dismissed for want of parties, it was expressed to be without pre- judice ;* and so, where a bill was dismissed, in consequence of facts not having been properly put in issue f or of the agreement, for the specific performance for which the biU was filed, turning out, upon the evidence, to be different from that actually proved.* It is to be observed that, although a decree of dismissal of a bill, for the specific performance of an agreement, does not carry with it an implied injunction against a subsequent proceeding at Law, it has been the practice of the Court to insert in the decree of dis- missal of such a biU, that it shall be without prejudice to a subse- quent p^ oceeding at Law ;' but^ whether it is introduced or not, the plaintift, after his bill for a specific performance has been dismissed at the hearing, is still considered by the Court of Equity as at 1 MUler V. Priddon, 1 M'N. & G. 687 ; see also John v. Jotus, and Bent v. Bireh, cited Seton, 186 : and Cogan y. Stephem, 13 June, 1831, MS. ; and see Skarf y. Soulby, 1 M'N. & 0. 864,876; 13 Jur. 1109. 2 Seton, 67. 3 Cooke V. Owyn, 3 Atk. 689 . u . «- 4 Seton, 1114, 1115, 1185 Now, however, a WU is seldom dismissed for want of parties ; out see WiUiains v. Page, 28 Beav. 148. 6 M'NeUl V. Cahill, 2 Bligh, 228. 6 Woollam v. Ileam, 7 vis. 211, 222 ; Lyndtay v. Rubs. 171, 185 ; but see Corporation of Rocketter ' such reservations in a decree. , . .,,,.. 7 Mortlook v. BvlUr, 10 Ve«. 202, 319 ; ITStumrm v. ArtAur, 2 Ball « B. 840 : Wedgwood v. -**»«» 8 Bmv. 108. 106. Lytieh, 2 Sch. & Lef. 1, 12 ; Stevem v. Gum 3 ter V. iee, 1 M'N. & O. 467, 470, as to tlie value u( GENERAL NATURE OF DECREES AND ORDERS. 611 lliberty to bring Iiis apCtion at Law, upon the contract, unless the Icourt thinks pro{)er specifically to restrain him, by injunction, from |so doing.^ The most usual course of preventing a plaintiff firom Iproceediiig at Law,, after a dismissal in a case of this nature, is to liikniss the bill without costs : on the plaintiffs undertaking not to Ibring an action ; this, however, is only by way of compromise.* In general, where a bill is ordered to be dismissed upon a contin- Igent event, the established rule is that such ordei-s are not conclusive, lunless the words " without further order " are annexed to the order ; land that, where such words are omitted, the defendant must apply ■for and obtain an absolute order of dismissal. In this respect, Ibowever, the rale acted upon, where an order is made for a cause to Istand over for a limited time, with liberty to the plaintiff to add ■ties, and, in default thereof, that the bill stand dismissed with [costs, is different : for it seems that, in such casen, the bill is actu- lally out of Court, without further order ; because the defendant has lit not in his power to set it down again in a fit state to bo heard, |inasmuch as he is not the person to add the parties.^ Although the general rule of the Court is, to make a complete [decree upon all the points connected with the case, it frequently I happens that the parties are so circumstanced, that a decision upon [all the jwints connected with their interests cannot be pronounced Itili a future period. Thus, for example, the interest of a fund may long to a person for life, and, after his death, the fund may be jdistributable amongst a particular class of individuals : now, although [the persons who form that class, as well as the tenant for life, are in [general before the Court at the time when the decree is pronounced, [the Court will not, at that time, take upon itself to declare their [interesis in the fund ; because it is a geneml rule not to declare [rights which are not immediately to be acted upon, lest events [should occur, before the time of acting upon them, which may jcreate an alteration in those rights. All that the Court, therefore, liisually does, under such circumstances, is to decree the interest of [the fund to be paid to the person entitled to the dividends during his life, and to declare that, upon his death, the parties interested in liWd. ^,. \ ^^* ▼. BulUr, and STNamara r. A rthur, ubi sup. ' stemt y.Pnud, 2 Cox, 374, 876 ; Seton , 998 ; see also ». 1270. As to enlarfrfng the time, see Fa- nna v. Savtrloek, 1 De G. & J. 434 ; Arnold v. Thornton, 11 W. R. 62, V. C. W. I ^ .1. 622 nEOHRKS KST) ORDERS. 3«"»i»»i :»»» CZZi 5x^ the fimd are to be at liberty tc pleadi in bar to another suit for the same matter. The eflfect of the resul vation is to permit persons having an interest under it to &\m\\ the Court touching such interest, in a summary way, without tlil necessity of again setting the cause down.^ . This is the English practice, and it is stated here merely for thJ purpose of explaining the meaning of the expression " with liberti to apply." Our Order 186 does away with the necessity of insert] ing this clause. It provides that " It shall not be necessaiy in anj Order,2 to reserve liberty to apply, but any party may apply to thJ Court from time to time as he may bo advised ; and where aaj Order directs the payment of money out of Court, it shall not necessary to dir ct that a cheque be drawn for the purpose." There are some cases of decrees which, although they aro final in their nature, require the confirmation of a further order of the Court, l)efore they can he acted upon. Of this nature are decreeii| in suits against infants, in which a day is given to the infant tul show cause against it, after he attains twenty-one ;^ and decreesl where the bill is ordered to l)e taken pro confeaso are also, some- times of the same description. The most ordinary case, in which a further order is necessary! to complete the decree, is that of a decree for a foreclosure. DecreesI of this nature, after directing an account to be taken of the prin cipal and interest due to the plaintiflT upon the moHcras^e, and thel taxation of his costs, direct that, upon the lef idant s paying to tlie [)laiutiff what shall be certified to b to him f(»' principall interest, and costs, within six calendar iiths after th. date ot the Master's Report, at such time and place as hal' oe thereby appoint- 1 ed, the plaiutiflf shall reconvey the mortgaged premises, and deliverl up upon oath all deeds and writings in his custody or powerl 1 See Seton, 66. The reservation of liberty to apply, does not eitend to an appUcation by the pli"" I tiff to be aUowed costs, as to which there is no express direction given by the decree : KtmM Marttem, 2 De G. F, A J. 200. ^ „ _,^ „ ,„, , 2 It wiU be recollected, that by Sec. 10 of Order 7, the word "Order" lacludes "Decree, «n«j " Decretal Order " 8 S«ton. 686. ;}ENERAI. NATURE OF DECREES AND ORDERS. 623 relating thereto, to the defendant, or to whom he shall appoint ; but that, in default of the defendant's paying to the plaintiff the prin- cipal, interest, and costs by the time aforesaid, the defendant shall, from thenceforth, stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the mortgaged pre- mises.^ ' If the defendant does not pay the money at the time and place appointed, the plaintiffs right to the estate will become absolute. He must, however, in order to complete his title, procure a final order confirming it : otherwise the decree of foreclosure will not be ])lead- able.' If one of several mortgagees, to whom the amoimt is due on a joint account, die after the decree, and before the time appointed for payment, a new time for payment must be fixed, before the final order can be obtained.^ ' In the case also of a suit for the redemption of a mortgage, a final order is necessary. The decree, in such a suit, usually directs the plaintiff to pay the balance certified due from him within six months after the Master's Report : in default of which, the plaintifTs bill against the defendant is from thenceforth to stand dismissed out ot Court, with costs ;* and the final order is obtained on motion of course, supported by affidavits of the default,^ The practice of directing that, upon non-payment of money by the plaintiff, the bill shall be dismissed, is not corifined to bills to foreclose or redeem mortgages. Thus, in Lowther v. Andover^ on a bill filed by a purchaser, for the specific performance of an agreement for the sale of an estate, it v. as ordered that a time and place for the payment of the principal money, interest and costs, should be appointed : and that in default of payment, the bill should .stand dismissed with costs. In such cases, as well as in those above mentioned, a final order is necessary. In cases of decrees of foreclosure, the Court will, upon applica- tion, enlarge the time for payment of the money, even though the 1 Seton, 364, No. 1. 2 Seton, 393 ; Ford v. WasMl, 2 Phil. 591 ; 12 Jur. 404. The release of the equHv of redemptiini, alter decree, Is equivalent to a final order : ReynoldHon v. Perking, Anib. fifl4. 3 mckbwn V Cable, 22 Beav. 614 ; Kinggford v. PoiU, 8 W. R. 110, M. R. * See decree In Seton, 461, No. 1. 5 Seton 487. A final dismissal of a bill to redeem is equivalent to a foreclosure ; Cholmley v. i-nunteM of Oxford, 2 Atk 267 : Bishop of Winehester y. Paine, 11 Yes. 19»; but not a dis- mimUor want of prosecution : Hanaard v. Hardy, ISVes. 460, 6 1 Bro. C. C. 396. ! At .',y :^^ ^ 624 DECREES AND ORDERS. finai order has been inroiled^ Formerly, it would do this without imposing any terms upon the defendant f but it afterwards became the practice to do it, only upon the defendant consenting to a refer. ence to compute interest upon the whole sum reported due for principal, interest and costs ;" and the order will still be made in this form, under special circumstances.* The ordinary toj-ms, how- ever, upon which the Court enlarges the tim^^ are ; payment of the sum found due for interest and costs, and carrying on the account di subsequent interest and costs : the defendant being ordered to pav the costs of the application at once.^ On these terms, the time has been enlarged for six months, and again for three months f and i in Edwards v. Cuncliffe,'' a fourth order was made for enlarging the time, though the third was directed to be peremptory. Where the report of principal, interest and costs due on the mortgage is sought to be varied, and the time appointed for pay ment thereof is likely to arrive before the application to vary is heard, application should be made to have the time for ])avineiit enlarged until the application to vary the report has been disposed of ; but, though this is omitted, the Court, in a proper case, will not make a peremptory order to foreclose, but will order subsequent interest to be computed, and appoint a new time for payment^ And so also, if a moi-tgagee receives rents after the report, and before the day appointed for foreclosure, the Court will not make the decree absolute without the further account being tr-ken, and a new day fixed for payment f but if the rents are received after the day appointed for foreclofi\^.v, no further account is necessary.^'' In Monkhouse v. the Corporation of Bedford^^where a decree of foreclosure was appealed from, the Court lefused a motion to sus- pend the execution of the decree till six months after the appeal should be heard, but directed that, on the defendants paying to the ))laintitf the interest due from the time .f filing his bill, and his costs (upon the plaintift's undertaking to repay the same, if the 1 Ford V. WcKtell, 3 PhU. 591 : 12 Jur. 404: ThornhUl v. Manning, 1 Sim. N. S. 461 ; Seton.SOl, 2 Itmoord v. Claypool, 1 Cha. Rep. 26 «. 3 Biekham v. CroM, 2 Ves. S. 471 ; Belt's Sup. 409. , , . 4 Uolford V. rate, 1 K. & J. 077 ; Bmere v. Wharton, 7 Sim 483 : irhitfield v. R^bfrtti, 7 .lur N. 8. 1268 ; 9 W. R. 844, M. R f> Seton, 891 ; ib. 890, No. 1 ; Finch v. Shaxu, 20 Beav. 655 ; CiM>iibe v. Stewart, 13 n«»v i.l. 6 MotUchouge v. Corporation of Bedford, M Ves. 380, 382 7 1 Mad. 287, 289. 8 See Renvmu v. Cooper, 1 S. * 8. 364. 9 Ald*n V. Fonttr, 6 Bear. 692. 10 Cumtable v. Uowick, 5 Jur. N. S. 381, V. C W. ; Seton, 894. ■ - , • ^ ^ 11 Ubiiup. r • f.<^ GENERAL NATURE OF DECREES AND ORDERS. 625 decree should be reversed,) and consenting to the appointment of a receiver, the defendants might take six months from the time fixed bv the report. And in Finch v. Shaw} the time to redeem, pending an appeal to the House of Lords, was enlarged, on the defendant paying into Cburt the pinncipal and interest foimd due, and paj'ing the costs of the suit and the application at once ; and the money to he paid into Court, was ordered to be invested at the defendants', the mortgagors', risi<, and the dividends to bo jiaid to the [)laintitt', the mortgagee, he imdertaking to refund. Although the ('Ourt will, upon a bill for a foreclosui'e, allow the defendant, upon application, to enlarge the time appointed for pay- liiieutof the principal, interest and costs, it will not do so upon a lill to redeem: for then the plaintiff comes intf Court saying. Here is the money ; give me iny estate ;" hut In a I mortgagee to foi-eclose, the Court acts against a pei-son pay, and imposes u])on him the terms that, if he does^ shall.lose his estate.'-^ Jay, \re^^ 'the oxfgi^d urv\ Formerly, it was not the practice of the Court , „ declaratoiy decree, without granting consequential relief ;'%ith 626 DECREES AND ORDERS. ground that a merely declaratory decree or order is sought therebv and tlie Court may make a binding declaration of right withoJ granting consequential relief." It may be here mentioned that, if an order has been irregularlj obtained, the party who has obtained it should take the earliei oppoitunity of discharging it: otherwise, any party affected byi may procure its discharge, at the costs of the person who obtainej it;iand, moreover, no subsequent order to the same effect can 1 obtained, till that has been done.^ --iiS? Ill I : . Section II. — The Form of Decrees and Orders. Before we proceed to the consideration of the practice Arisin upon decrees v/hen pronounced, it will not be out of place to raak a few observations upon their form. Decrees, in general, consd of four parts: — 1. The date and title; 2. The recitals; 3. Tl^ declaratory paii (if any) ; and 4. The ordering or mandatory partal 1. The decree commences with a recital of the day, month anj year when it was pronounced, and of the names of the seven paities to the cause : who should have the same titles in the decn as they have in the bill ;* thus, if the plaintiff is described in thebil as executor or administrator, the decree must be accordingly. 2. Formerly, decrees contained recitals of the pleadings in th cause ;^ and in like manner, a decree upon further direction according to the old form, recited the ordeiing part of the originaj decree, and the report made in pursuance of it. But this is longer the practice, and, unless the Court otherwise specificallj directs, no recitals ought to be introduced in any decree or order ( the Court ; but the pleadings, petition, notice of motion, repurl 1 See Davis v. Franklin, 2 Beav. 869, 376 ; Tarbuok v. Tarbuck, 4 Be«T. 1*9) IM; itflwlnl Wright, ib. 166, I7i. 2 Pearce v. Gray, 4 Beav. 127, 129. , m Thp r :> Ah to the frame and usual directions in decrees and orders, see Seton, x.— xi., 1—98. '"J ,^ Is also referred to the excellent collection, contained in that work, ol forms of decrees uw"™ with practical notes. t h, • 4 Curs. Can. 369. 6 Seton, 4. i FORM OF DECREES AND ORDERS. 627 certificate, evidence, affi(iavits,exhibits or other matters or documents, on which such decree or order is founded, should be merely referred to.i In matters of contempt, however, or whe: a the decree or order varies from some general rule, or the Registrar in his discretion sees fit,^ he may maku such short recitals as may be necessary, to show the grounds on which the decree or order is granted.^ ^.. ■■A ■',4 I i m 3. Where the suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by such a declaration.* Sometimes, the Court has directed an insertion in the decree of the reasons for making the declaration, and of the grounds upon which it proceeds in making it.^ This, however, is not frequently done : though the utility of the practice has been recognised.^ i The ordering or mandatory part of the decree contains the specific directions of the Court, upon the matter before it. Those directions must, it is obvious, depend upon the nature of the particular case which is the subject of the decree ; and cannot, therefore, now be made the subject of discussion ; they must, liow- ever, be framed in conformity with the rules contained in the General Orders of the Court ; and the settled forms o*' decrees should be adhered to as much as possible.' Our Order 187 provides that " Orders are to be divided into con- venient paragraphs, ar.i such paragraphs are to be numbered consecutively; and where accounts are directed to be taken, or enquiries to be made, the order may be in the form set fortli in *hedule J, hereunder written, with such variation as the circum- stances of the case require." And Order 188 that " In all orders, sums are to be stated in dollars and cents." U- 4Wil IV. c. 94, 8. 10 : Ord. XXHI. 3 „. .r . o 2 See «g to the practice, lif'-awing up a decree in the Registrars' Office, Davenport v. Staffont.H , Beav. 503, 5H, 513 . V ar. 801. ■I Ord. XXni. 2. We liave no order similar to thin, but our practice is the same, * Jemirv. Jermir, 10 Ves 562, 668 ; Seton, 22 ; and see La.nbert v. Peyton, 8 H. L Ca. 2. 5 iiordmy. Gordon, 3 SwansU 400, 478 ; Maynard v. Moseley, ib 658 ; Onionsy. Tyrer, 1 V. ^Vni.s. 344, n. (1) ; Oib»on v. Kinven, 1 Veni. 67, n. ; Ex parte Earl of llehester, 7 Ves 348, iTd \ ^ttomey-Gemralv. Clapham, 4 De G. M. & O. 591, 607 : 1 Jur. N. S. 505 i 10 Hare, Olr ; and Seton, 22. 5 ^'- Vliitbread, 16 Ve8. 16, 24 ; Gordon v. Gordon, ubimp. , „ „ ^,, „^„ ' «« Cant't Ettate, 1 De O, F. i J. 153, 158 ; Stainton v. Carron Company, 7 Jur. N. S. 045, 047, L. JJ. ; Seton, 1. 628 DECREES AND ORDERS. C' immmms •mmmm Our Order 293 provides that " Every order requiring a party do an act, other than the payment of money, shall state the timJ after aervi(;e of the order within which the act is to be done ami upon the copy of the order served, there sliall Ite endorsed memorandum in the words, or to the effect set forth in schedule X ' Decrees and orders are frequently founded, either wholly oi) partially, upon admissions of facts, consents, submissions, imdeij takings, or waivers of claim : entered into or made by the parties i some of them, by their counsel at the bar, or by their solicitors iii applications at Chambers. In such cases, the admissions, consentsj submissions, undertakings, or waivers should be inserted in tW decree or order ; immediately before the ordering part, if they lolalJ to the whole decree or order ; and if not, immediately before thJ part to which they relate.^ -»«r' •"■*i*M, iSltm SEtrnoN III. — Drawing up, Passim/, and Entering Decrees an Orders. "" When a decree or order is pronounced by the Court, a note of ij is taken down by tlu^ Registrar : from which minutes of the decr« i)r order are afterwards prepared, and copies issued to the soliciton of the parties. The party entitled to the carriage of the decree oj order should, immediately after it is pronounced, leave his papeij with the Registrar, to enable him to draw up the decree or order and should duly proceed therein ; otherwise, the Registrar ina\j draw it up at the instance of any other party, and deliver it tJ him.2 The solicitors of the other parties should forthwith bespeaij copies of the minutes, if they require them. A full draft of thj decree or order is usually prepared for the party drawing it upj and copies of the minutes for the other )mi*ties.^ ;, , • vj. Our Order 10 provides that " Every order is to be bespoken, a the briefs and other documents required for preparing the same an 1 Bartlttt V. Woml, 9 W. H. 817, L. C. ; Seton, 21. 2 Seton, 1187. 3 Ibid. For a form, nee ih. 23. DRAWING UP, PASSING, AND ENTERING. 629 I be left with the Registrar, within seven days after the order is jironounced or finally disposed of by the Court." And Order 11. Ihat "In c-ase an order is not bespoken, or the briefs and other Hocuments ai*e not left, within the time prescribed by Order 10, the Uer is not to be drawn up without leave being obtained on an Ulication in Chambei-s." At the time of delivering out the draft of any decree or order bicli requires to be settled by the Registrar in the presence of the iarlies,the Registrar delivers out, to the party on whose application ihe draft has been prepared, an appointment in writing of a time r settling the same. A copy of such appointment must be served mthe opposite parties one clear day at least before the time fixed ereby for settling the draft decree or order, by leaving such copy If such appointment at, or sending it by post to, the place for ser- ice of such party ; and the party serving such copy, and the party served, must attend such appointment, and produce to the Regis- their briefs, and such other documents as may be necessary, to able him to settle the draft. The original appointment, with a lemorandum endorsed thereon of the sei'vice of a copy thereof on e opposite party, signed by the person by whom such service was lected, must be delivered to the Registrar, in order that he may be itisfied that service has been duly effected ; but he may I'equire ch service to be verified by aflfidavit. This is the practice in England as established by Order I., 32, 23, P, '241, 26 — and although we have no similar order, the pi'actice j the same. Our Order 12 provides that "No notice to settle nutes or pass an order is to be given unless by the direction of I Registrar," and Order 13 that " Where a notice is given to settle nutes, or to pass an order, and the party served attends thereon, ptthe party giving the notice does not attend, or is not prepared proceed, the Registrar may proceed ex parte to settle the minutes, I pa&s the order, or may, in his discretion, order the party giving |e notice to pay to the other the costs of his attendance : or if a rty served asks for delay, the Registmr may grant the delay on Jcn terms as he thinks reasonable as to payment of costs or other- pder 596, declares that " No notice of settling minutes or passing I order is to be given until the proposed minutes or order have, or '% i i 630 DECREES AND ORDERS. uJ.U] err ;ai«» its* ■or has been prepared by, or delivered to the Registrar : the notice (where the Registrar deems a notice proper) is to be by an appoint- ment signed by him, a copy whereof is to be served : the proposed minutes or order shall remain in his office for inspection until settled or passed : and any party may take a copy thereof" If, upon perusing the minutes, or draft of the decree or order, it appears that anything is doubtfully expressed, or contrary to the plain sense and meaning of the Court, or that anything has been omitted in them which ought to have been inserted, and the Regis- trar refuses to make an alteration in them,* an application must be made to the Court to vary the minutes. This application was formerly made by petition, stating the specific matter to be added or altered ^ but it is now usually made by motion : of which notice must be given.^ The notice must specify the particular matter to be added or altered,* and the Registrar should be previously informed of the application.^ Motions of this nature will, in general, be permitted, provided the decree remains in minutes.* Strictly speaking, questions of impor- tance ought not to be discussed on applications to vary minutes ; but this rule is not always adhered to, and discussions of great moment have sometimes been permitted.^ Where a variation is made by the Court in the minutes or draft settled by the Registrar, the variation is embodied in the decree or order originally made, and, except when the costs of the application are ordered to be paid, no fresh order is drawn up.^ To avoid questions on the minutes, the Court sometimes requires the counsel on both sides to sign draft minutes, to be handed in to the Registrar : and when orders are taken by arrangement between the parties, the minutes should always be signed by the respective counsel.® 1 As to the power and duties of the Registrar, irv drawing up decrees, see Davenport v. Stafford, 8 Beav. 503. 511, 513 : 9 Jur. 801. 2 Orey v. Dicketig^. :i, 4 Mad. 464 ; and see Stewart v. Forbes, 16 Sim. 433. 3 Webber v. lluni, 1 Mad. 13 ; Pwidert,on v. Diteon, 5 Mad. 121 : Harr. by New]. 321. 4 Prince v. Howard, 14 Beav. 208 ; Hood v. Cooper, 26 Beav. 373 ; Seton, 1142. r. Seton, 1142. 6 1 Turn. & Ven. 319 ; Seton, 1142. „ ,, , 7 Perry V. Philips, 1 Ves. J. 251, 252; Bootle v. Blmidell, 1 Mer. 193, 202 An application t^ vary the ordi r cannot be made, on the mere ground tliat a decision which is in point ^3^^ prominently brought to the attention of the Court : He Vicar o/ St. Sepulehte, 11 W- B. «». 8 Seton, 1143. For form of order, see tb. 9 Seton, 1148. i DRAWING UP, PASSING, AND ENTERING. 631 The Registrar, upon consent of the parties, may allow such alter- tions to be made in the decree as his knowledge and experience fh him would be sanctioned by the Court if mentioned thereto.^ liT a decree or order has been settled by the Registrar, it cannot . altered in the absence of any of the parties interested.^ I When the draft decree or order has been settled by the Registrar, J names a time in the presence of the several parties, or else delivers lit an appointment in writing, of a time for passing the decree or der;and, in the latter case, such appointment must be served on le opposite party, in like manner as an appointment to settle a decree or order; and the original appointment, together with Imemorandum endorsed thereon of the service of a copy thereof on ! opposite party, and signed by the person by whom such service i been eflfected, must be delivered to the Registrar, in order that may be satisfied that ser\nce has been duly effected ; but the gistrar may require such service to be verified by affidavit. 4 :#. i The decree or order, having been prepared from the draft, is [livered, together with the draft, to the party bespeakiiig it : by horn it should be carefully compared with the draft. If the party, kving thus received the original decree or order, neglects to return |to the Registrar, in order that it may be passed and entered, he , on motion, of which notice must be given, be ordered to A decree or order is said to be passed when the Registrar has «rted his initials in the margin, at the foot of the last page, as an Ithority to the Entering clerk to enter it in the Registrars' books.* |By the present practice of the Court, it is irregular to deliver a icree to any party not entitled to the carriage thereof, without an aer to that efiect : but where the plaintiff, who was prima facie entitled, was guilty of great delay in proceeding under a decree pnounced, and a defendant beneficially interested applied for and l^wnport V. Stafford, 8 Bear. 508, 611 : 8 Jur. 801 ; Seton, 1142. *' - I Jjjor T.Major, 13 Jurl.L.O. f ?; liF' fio^^fon V. Manuelie, U Jur. 688, Lds. Com. ; Clifford v. TwriU, 2 De O. & 8. 1 ; 18 liZiS;. ^^'"««»0«»«ria. ., .,. ,,.. ,.v,,,^ i ;;* if 632 DECREES \ND ORDERS. }f'M cr :s»M» obtaiued the decree from the Registrar, which he carried into the | Master's office — a motion to give the caniage thereof to the plain- tiff, was refused with costs.* The practice in all cases, except orders of course, and orders of a simple kind, in which the parties cannot be injured by the order | as drawn^up,^ is as before stated. Our Order 8 provides, that " All orders made in open Court, (ir | to be issued on precipe for foreclosure, sale, or redemption, or for a sale instead of foreclosure on the application of an incumbiaucei, are to be drawn up, settled and passed by the Registrar." And, Order 9, that "After an Order is passed and signed by the Registrar, the same is to be entered by the Entering Clerk, and issued by the Registrar to the party entitled thereto." And, Order 191 provides, that " A decree founded on a bill taken pro confeaso is to be passed and entered as other decrees." There are two Orders made under 29-30, Vic. c. 39, which may be conveniently noticed here. Order 192 provides that " Where a Queen's Counsel has held a sitting of the Court under the Statute in that behalf, he is to inclose to the Registrar, as soon thereafter as may be, a statement signed by him, of his decree in each case heard by him, and the date and place of hearing, and is to set forth the terms of his decree either at full length or otherwise, as the case may require. His judgment containing the reasons for his decree, if he thinks tit to state the same in writing, is also to be ti-ans- mitted to the Registrar for the information of the Court and the parties." And Order 193, that y A decree made by a Queen's Coun- sel is to be expressed in the body thereof to be the decree of the Court, but the name of the Queen's Counsel is to be given in the margin." Order 195 provides, that " No order of course, and no order ob- tained ex 'parte, and not being of a special^^ natui-e, is to be entered, unless the entry thereof shg,ll be directed by the Court or a Judge but this provision is not to be construed as applying to decrees or decretal orders, or to final ordei-s for sale or foreclosure." 1 SUtrt T. Caylty, 1 Cham. R. 165. 2 Harty. Tulk, 6 Hare, 61t, 618. DRAWING UP, PASSING, AND ENTERING. 633 No proceedings can be taken upon a decree or order not entered ; and if any are taken, they are in-egular and voidable : even though the omission to enter the decree or order has been occasioned by the mistake of the entering clerk, and not through any neglect of the party.i An order to enter a decree or order, nunc pro tunc, may be ob- tained, upon application by motion of course ; and, when passed, must be left with the entering clerk, at the Registrars' Office, as his authority to enter the deox'ee or order. Orders to enter decrees, nu7ic pro t/mic, will be made after a very long interval has elapsed from the time of pronouncing the decree ; and even where the original decree has been lost, the Court has permitted it to be entered nunc pro tutui, from the office copy, after the lapse of twenty-three years.^ In Jeasen v. Brewer,^ where the pleadings in the cause as well as the original decree, (which was pronounced seventy-nine years Hefore the application,) were lost, a papei', purporting to be a copy of the decree, was allowed to be entered as the decree, and inroUed : it api)earing from the minute-book of the Registrar that such a decree was pronounced at the time, and, from a Master's report, that it had been acted upon. And where an order which had been passed nine years before, but not entered, could not be found, the Court allowed it to be re-issued.* - - , It seems, that an order to enter a decree aunc pro tunc may be made, although the suit has abated.'^ And so, when the suit has abated between the hearing and judgment, the decree may still be 'Irawn up." In January 1841 an original decree of foreclosure had been made ; in pui-suance thereof, the Master made his report, and in May of the same year the cause was set down for heai'iug on further directions, 1 Tolton V. ,/erm, 8 Beav. 364 366. It is essentially requisite to the perfect coinpletioii of h decree, tliat it be passed and entered : Drummond v. Anderson, 3 Grant, 160. 2 Lawenee v. Richmond, IJ. & W. 241 ; Donne v. Lewit, 11 Ves. 601. 3 1 Dick. 370. i Rtmell V. Tapping, 3 W. R. 379, V. C. K. » Seton, 1139 ; and see Willinioti v. Ogilhy, tliere cited ; contra, Bertie v. Lord Falkland, 1 Dicli 25 ; but sec, as' to the latter case, 2 C. P. Coop. t. Cott. 37. 6 mnuy. Daviet, 9 Ves. 461 : Belsham v. rcrciwti, 8 Hare, 167 ; 2 C. P. Coop. t. Cott. 17B ; Col- Imon T. Litter, 20 Beav. 366 : 1 Jur. N. S. 836 ; Seton, 1139 ; and see BowsieauH v. DolaiieM. Jur. N. S. 1282 ; 12 W. R. 101, V. C. W. ; Rueker v. SeMeJUld, 1 N. R. 180, V. C. W. " ! I 634 DECREES AND ORDERS. but the decree then pronounced was not drawn up, or any entry made thereof. A motion made to allow the plaintiff to draw up and enter nunc pro tunc the decree on further directions from minutes alleged to have been prepared by the Registrar was refused' ^•■■••"r*'*' Section IV. — Enrolment of Decrees and Orders. A Decree does not, strictly speaking, become a record of the Court until it has been enrolled ; and, although the Court itself, after it has been duly passed and entered, treats it as a foundation for ulterior proceedings, it is not considered of a sufficiently perma- nent nature to entitle it, in other Courts, to the same attention that is paid by one Court of Record to the record of other Courts of the same nature. In fact, till a decree has been enrolled, and thereby become a record, it is liable to be altered by the Court itself, upon a re- hearing ; whilst a decree, which has been enrolled, is not susceptible of alteration, except in England by the House of Lords or by bill of review. For this reason it is, that a decree, which has not been enrolled, although it is, in its nature, a final decree, is considered merely as interlocutory, and cannot be pleaded in bar to another suit for the same matter.^ The advantage, therefore, to be obtained by the enrolment of a decree is : to prevent its being the subject of a rehearing, and to enable the party benefited by it to plead it in bar to any new bill which may be filed against him, for any of the matters embraced by the bill upon which the decree is founded- No appeal to the House of Lords can take place, unless the decree appealed against has been enrolled.' This is the English practice, but our Order 322 provides that "A re-hearing may be had as well after as before, enrolment ; but no second rehearing is to be had, without leave of the Court granted upon special motion for the purpose." Our Order 189 that " Decrees or decretal orders are not to be enrolled until the final decree or order in the cause has been pronounced." 1 Drummondv. Anderson, 3 Grant, 160. 2 JLfitc S Andrew v. WaXtm, 8 01. & F. 467 ; 6 Jur. 619; Broadhwat v. Tunnieliffy 9 CI. k F. 71; we WelUtUy T. WtUUUy, 8 De O. & J. 184 ; and S. C. mm. Beavan v. Momington, 8 H. L. u. 636;eJur. N. a. lltS; Monypmny x. Dtring, iDsO. * J. 170; SJur. M.S. 081. ENROLMENT OF DECREES AND ORDERS. 635 Order 190 provides that " If no petition for rehearing is filed, jithio thirty days after the entry of the final decree or order, the berk of Records and Writs, at the instance of any party to the ause is to attach together the bill, pleadings and other proceedings, nd is to aanex thereto a fair copy of the decree or decretal order ligned by a Judge, and counter-signed by the Clerk of Records and hvrits, and the papers and proceedings so annexed and signed are to mm on record in his office, and such filing is to be deemed and ken to be an enrolment of the decree for all purposes." And lOrJer 194) provides that " Interlocutory orders are not to be enrolled." If any irregularity has occurred in the enrolment of a decree or lorder, or in the proceedings to accomplish that object, the Court Iffill, upon application by motion, order it to be vacated.* Thus, the leDrolment was vacated where due notice of passing and entering Ithe decree had not been given, under circumstances which amounted Ito surprise; 2 and where the notice from the Record and Writ IClerk's Office stated that the docket would be presented for signa- Itiue, unless an appeal was lodged, and the order to set it down was Iseived, within twenty-eight days, although it was held that the jaitpeal ought to have been actually set down' to constitute a prose- Icution of the caveat with eflect, yet the Court considered the party been misled, and was entitled, as an indulgence, to have the lenrolment vacated.^ It seems that, if the party enrolling the decree has said or done jsomething which would induce his opponent to believe the decree Ivouldnot be enrolled, approaching deception or mala fides, it is a Iground for vacating the enrolment, but not otherwise.* It was, Itherefore, held, by Lord Brougham, in Balguy v. Chorley,^ that the I mere circumstance of its having been intimated, on the part of the defendant, to the plaintiff's solicitor, that it was the intention of the defendant to appeal forthwith, and of the plaintiff's solicitor saying I in answer, that he was open to any fair offer of arrangement to 1 Parlctr v. Downing, 1 M. & K 634, 637 ; Rohimon v. Newdiek, 3 Mer. 13 ; Woods v. Woods 12 mo^^' ^' ^" ' *""''*** ^- W*i«<»». w6t ««!»• fo' *onn of order to vacate enrolment, see Seton 2 Bargrave v. Ilargrave, 3 M'N. & G. 348, 351 ; see also Anon., 1 Ves. 8. 326 ; Belt's Sup. 168 ii rearee v. Lindsay, 4 De O. & J. 211 ; 5 Jur. N, S. 661 ; and see S. C. supra ; but see Attomev-Oen- fral V. Conservators of the River Thames Jur. N. S. 588 : 11 W R. 408, L. C. « ^ardU V. Carter, 1 M. & C. 283, 2&&; Lewis v. Uinton, 11 Jur. 'm, h. C. Wickenden v. Rauson H^i ^A ^J!f5' ^' ^- ' ^^lioms V. Page, 1 De O. & J 661 ; Backhouse v. WyMe, 3 Jur. N. s' 8M, L C. WUdman v. Lade, 4 De O. & J. 401, 406 : HiU v. South Staffordshire AaUxeav Com. i fi'll'k Aifl^' ' "'^ "^ WhiMtsr \. Utuh,waA Riehards v. Woods, dted 1 Smith's Pr. fo7 636 nECREES AND ORDERS. 3««M»I prevent the necessity of an appeal, did not amount to such a sur- prise as would induce the Court to vacate the enrolment. This is in accordance with what waw laid down by Lord Lyndhurst, in Barnes v. WUhou,^ where his Lordship held, that a party was not bound to communicate his intention to enrol a decree to his adver- sary, because the latter informs liim of his intention to appeal against it. The enrolment of an order absolute of foreclosure does not. anv more than the enrolment of the decree of foreclosure, preclude the Court from again enlarging the time in a proper case, and upon the usual terms.'' The costs of enrolling a decree or order will not be allowed, on taxations as between party and party. »ito ::* Section V. — Hectifyimi Decrees uiirl Orders. We have seen before that, as long as the decree or order vcmains in the shape of minutes, that is, till it has been passed by the Registrar and entered, it may be rectified, upon application to tin Court, or by having it put into the cause paper, "to be spoken to;' but that, after a decree or order has been passed and entered, tin Court will not entertain any application to vary it, unless in respect of matters which are quite of course. The proper method of hav- ing a decree or order rectified, in other matters, is by applying to have the cause reheard.* Clerical mistakes in decrees or orders, or errors arising from any accidental slip* or omission, may, at any time before enrolment, bo corrected, upon motion or. petition, without the form and expense of a rehearing. Thus, the omission of a direction to settle the con- veyance,^ or of a reference as to title, in a decree for specihc poi- 1 1 R. & M. 480, 493. 2 Ford V. Wagtell, 2 Phil. .VJl, 593 : ThornhiU v. ilaniunf/, 1 Sim N S. 461. .3 Harr. by Newl. 822 -, and see on this subject, Seton, 1148. t • , . . ■ 4 Turner v. Hodgson, Bear. 286. Trei'ttlyan v. Cnnrter, B«av. 140, 142. (.li IlKCTIFYING DEOREEa AND ORDKRB. 037 f foimuuco,^ or of n direction to take the accountH of the pei'Bonal tstatc, in a creditors' Huit,'^ iray be thuH Hupplied.'' Our Order BBS provides tliat "An application to amend an order which has not been drawn up in conformity with the judgment pronounced, so as to make the same conformable thereto ; nnd an application to correct any other clerical mistake in an order aris- in<' from an accidental slip or omission, may be made in Cham- liers on petition, and the Court may grant the same, if, undcu- all tlic circumstances, the Court sees fit;" and Order 336, that "Wlierean order as drawn up requires amendment in any other particular on which the Court did not adjudicate, the same may be amended in open Court, on petition, without a rehearing, if, under all the circumstances, the Court sees fit." Where a necessary direction is omitted in a 'lec^'ee, the Court will amend it, although the decree has been passed and entered. In such a case, the proper mode of proceeding is by petition.* The Court will not set aside a decree which has been regularly obtained upon pracipe under the orders of this Court, except upon an affidavit shewing that the defendant will be damnified by the decree being permitted to stand against him.'^ An application by petition to correct a clerical error in a decree or order must, as a general rule, be made on notice.® Where an order for sale had been taken out ex parte by mistake, in lieu of an order for foreclosure, the Court will vacate the order for sale, and grant an order for foreclosure ex parte.'' Where an order to do a certain act does not limit the time thereof, an order limiting the time within which the act is to be done will be },nanted ex parte. ^ After a decree in a foreclosure suit referring it to the Master to take an account of what was due, the defendant applied to set aside the order pro confesso, and subsequent proceed- ings, and permit an answer to be filed, which was ordered to be (lone upon the defendant paying the costs of the application, and putting in his answer within two weeks, in default the decree already drawn up to remain in force. No action having been taken by the In !h >1 . •'fil'''i-l :i ,,Uv 1 Hughes v. Jonts, 28 Beav. 24. 2 Pickard v. Mattheson, 7 Ves. 293. 3 For other cases, see Wallig v Thmiiat, 7 Ves. 292; iSewhouse v. MUford, 12 Ves. 466; Lane v. Hnbbi. ib. 458 ; Skrynuher v. Xorthcote, 1 Swanst. 673, ii. ; Tom'lins v. Palk, 1 Russ. 47.'; ; Hawker v. Buncombe, 2 Mad. 891 ; Windsor v. Crost, 9 Hare, .\pp. 44 : Cradook v. Oxcen i Sm. & G. 241. * Moffat \. Hyde, 6 V.C.L. 3. Oi. ■■ « .. h Mitchell \. Crooks 2 Grant, 123. t. « . . i 6 RttdenhurH v. Reynolds, 11 Grant, 621. / M'Oillivray v. Carm-rm, IChaui. R. 19' 8 M Kay V. Rfed, I Cham. R. 196. 197. ■•A'- 638 DECREES AND ORDEIiS. CvavHkM tmnu^mmii % f defendant under this order for several weeks, an application on ty part of the plaintiff was made upon notice to discharge that orde] with costs. The Chancellor made the order as asked, although a] first doubting any necessity therefor, as the order already drawn uj declared that, under ihe circumstances which had occurred tliJ decree should remain in force.^ Where a decree which had hi taken out by the plaintiff in an administration suit, erroneouBl] made provision for payment of certain annuities and legacies il priority to the provision made by the will for the widow ^^ the tesl tator, the Court, upon the petition of the widow, directeil the decree! to be amended, but refused costs to either party.^ A final decree! of foreclosure had been obtained in a suit vvhere the true position! of parties was not disclosed, or material facts had been misreprel sented, and a bill was subsequently filed to enforce a claim againstl the party beneficially interested as plaintiff in that suit. The Court refused to make a decree other than would have been proper bad the true position of the parties to that suit been stated.' An incumbrancer, made a party in the Master's office under the General Orders of 6th February, 1865, cannot, after the lapse of foui-teeii days from the service of the decree, file a petition to vary the decree without first obtaining leave by an application in Chambers.* A decree can only be amended on application in Chambers, when it is not drawn up in accordance with the judgment, or some necessary consequential direction has been omitted. The plaintifi" has, in tlie absence of any expression of the Court, a right to take the reference j to the place where the bill was filed.^ A consent decree may be amended on petition, if it is shewn that it contains terms which were not consented to.® A motion to set aside a decree obtained by default, and not on the merits, was held to be properly made in Chambers.' The Secretary in Chambers will not grant an order to amend a decree, except to corrc t a clerical error, or to make the decree conform with the judgment. Where the decree omitted to direct that costs should be paid forthwith, an application to'amend was refused.^ On a bill to enforce a vendor's lien, the decree, which, t'lrousb oversight, directed that in default of payment ut 1 Williama v. Atkinson, 1 Cham. R. 84. 2 Eadie v. lU'Etoen—Re Eadie—U Grant, 404, 8 Wilton V. Hodgson, 14 Grant, 643. 4 Roe V. Stanton, 15 Grant, 1.37. 5 Watson v. Henderson, 2 Cham R. 370. Merchants' Bank v Grant, 3 Cham. R, 04. 7 Kline v. Kline. 8 Cham R, 79. 8 Wilson V. Jiobertton, 3 Cham. R. 100. RECTIFYING DECREES AND ORDERS. 639 the amount to be found due by the Master, an execution against the goods, &c., of the original purchaser should issue, without first soiling the land, was set aside, at the instance of the purchaser after the execution had been issued and placed in the hands, of the sheriff, the defendant, though served with the bill, having taken no proceedings in the case.^ The plaintiif claimed dower ; a decree was made less extensive than she claimed ; the Master made his report in pursuance of the decree ; the solicitor on the same day signed a consent to a decree on further directions being made in certain terms stated in the consent ; these terms were in accordance with the decree and report ; they provided, also, that, in lieu of dower, plaintiff should be paid a certain annual sum named ; the decree was not drawn up, but the agreement which it embodied was acted on for eight years. Held, that the plaintiff was bound by it, and that she could obtain no relief on the ground that the original decree should have been more favorable to her.^ im i ■5S' # I It is, nevertheless, a principle of the Court, that no alteration can be made in a decree on motion, without a rehearing, except in a matter of clerical error or of form, or where the matter to be inserted is clearly consequential on the directions already given. ^ Upon this ground, where the decree directed a commission to ascer- tain the boundaries o^ prebendal lands, a motion, that the decree might be extended to pyhold as well as to freehold lands, which was opposed, was refused.* So, where an ejectment was ordered to be brought, without restraining the defendant from setting up an out- standing term, the introduction of such a restraint was not permit- ted.* In Colman v. Sarell,^ Lord Tburlow would not allow a decree to be varied, by giving costs to a defendant who was a mere trustee, and, as such, would have been entitled to them if they had been asiied for at the hearing. And, in Brockfield v. Bradley,'' Sir John Leach, V.C, declined to correct a decree, in which the error was apparent, because the alteration proposed would require new direc- tions upon the corrected part. Where the decree expressed that the parties had consented that the matters in question should be 1 Smtzer y. Ingham, 14 Grant, 287. 2 SxlU V. Laiig, 17 Grant, 691. I u'??!'- ^- '^a»«n/. 8 De G. M. & G. 311 : 2 Jur. N. 8. 431. J » U(w V. Parkinson, 3 Swanst. 233. 6 Braekenburii V. Braekenbury, 2 J. & W. 391, 393, 396. 8 2 Cox, 206 7 2 8. & S. 34. i ^wji!ft^WH!^fVfj^yw.).;i;.*^J35*« 640 DECREES AND ORDERS. decided by the Court, without directing an issue, the Court refused to vary it, by expressing that the parties had not asked for issue.* It'^eems that the Court will, in this manner, supply what niavl be necessary to make an existing direction complete; but will notl make a new direction; and, therefore, where a decree dh-ected i account of the real estate of a testator, sold since his death, but I omitted to direct an account of the moneys received from the sale of | such as had been sold, the Coui't refused to rectify the decree, bv directing such account to be taken. - Where the title of an order was erroneous, leave w:i given ti ; Sfodham v. A tf >'*<»"'■ ' "■• 033 . 7 Jur. 3H(1 , Aiiun., i Jur. N. S. !»7;l. V, C. \V a Aihew V. Peddle, \\ Sim. 301. and numbe that all er.'fl after enrola apparent er Iducingane Our Orde; Itice: an alt in order to i to enquire V sequent par entitled by variation or ing subseqi in the nati the ground or a bill to I iu the caui I .lirounds up^ Where tL hearing, an I the decree, a separate e It is an I (Itcree, how Sect 1 ON \' All deci I process of or costs m; No decri person to ( 1 See 8«t(Mi, . 2^» Coop, i;; 3 Vinty r C iCkuck V. r 17 t. RECTTFYING DECREES AND ORDERS. 641 "*t refused ked for an I what niavl it will 11 irectetl ! death, but ! the sale of I decree, bv given tero inny Coti.pann, 8 Jur. N. S. 11 : 10 W. R. 76, V. C. W. ; Pycroft v. WiliMni«, 5 W. B. *W, V. C. w ENFORCING THK EXECUTION OF DECREES AND ORDERS. 0413 iog to, a'ld leaving with the person required to do the act, a true copy of the order, indorsed in the manner l,efore mentioned, and at the same time producing and showing to the person served the original order, as duly passed and entered ; or an o£Sce-copy thereof. ^ The Court has jurisdiction, in a proper case, to enter- tain an application by a party served with an office-copy of the decree, under the General Orders of June, 1853, (No. 6, Kule 6) after the expiration of the fourteen days thereby limited.^ When the parties who would become interested under a decree, as kin of a testator, are very numerous, and difficult to serve, the Court will, in its discretion, dispense with serrice on them, or some of them, and direct one of a family or class to be served.^ '^M Although personal service is, in general, requisite, yet the Court will sometimes, under the particular circumstances of the case, allow substituted service to be effected.* Thus, where the party absconded to avoid service,^ or was not to be founu,^ or kept his door locked,^ the Court has ordered substituted service upon his solicitor to be good service. The reason for requiring personal service, previously to the issuing of process of contempt, is chiefly to prevent surprise ; and, therefore, wherever it can be shown that the party is not likely to be taken by surprise, the Court will order substituted service to be good service. Thus, where a defendant was present in Court when the decree was pronounced, and after- wards kept out of the way, the Court ordered substituted service of the decree upon her solicitor f and so, in De Manneville v. De Manneville,^ where the party had declared that he would not obey the order. Where the person required to do the act resided permanently abroad, on her Majesty's service, substituted service on his solici- tor was ordered, without proof of any attempt to serve him per- sonally.^° 1 Brwthwaite s Pr. 166, 167 ; Braithwaite's Manual, 175 n. (73), ! Stemn v. Hunter, 2 Cham. R. 265. i ind^non v. KUborn, 2 Cham R. 408. J *? /O substituted service generally, see ante. Bimrds v. Puole, cited 12 Ves. 20.5 ; Skegg v. Simpson, 2 De G. & S. 454 : Burlton v. Carpenter, fi w ...**« '^ '• *'" ^ourUyan, 13 Beav. 84 ; and see Re Dufaur, 16 Beav. 113. fi ^yatt s P. R. 207, 260 ; Hunter v. ,6 Sim. 429. ' "«««? ▼• BreoKe, cited 12 Ves. 204. » ««fe" V. Kidder, 12 Ves. 202 1 Ibii., 203, 206. «• mfUlu V. Cmrprr, 2 De G. F. ,t J. 208 : 6 Jur. N. S. 718 ; "? Oiff. JSO ,4 'i 644 DECKEES AND ORDERS, »>««w«ia.«, laiito The order for substituted service ifi obtained on an ex parte application : ' which is made by surximons in causes and matters originating in Chambers, or for the purpose of proceedings pending there; in other cases by motion in Court.^ The application must be supported by affidavit showing why personal service cannot be effected, and upon whom the substituted service is proposed to be made.^ If substituted service is permitted, the service must be effected strictly in accordan' ^ with the terms of the order directing such service, and a copy of such order must also be, at the same time, served in the same manner.** Our Order 288 provides that " If a party who is ordered, other- wise than by an order of course, to do any act, other than to pay money, in a limited time, refuses or neglects to obey the order according to the exigency thereof, flie party prosecuting the order shall, at the expiration of the time limited, upon filing [with the Registrar^ an affidavit of the service of the order, and of the non-performance thereof, be entitled, upon pra'cipi', to a writ or writs of attachment against the disobedient party." It will be observed that this order is confined to cases where a party is ordered to do an act by a special order or decree of the Court. In such cases an attachment may be obtained if the order be disobeyed : Imt there is a variety of orders issued on jjroecipe, or, as they are styled, " orders of course," such as an order to produce ; and wii'^re such an order is disol)eyed, an attachment could formerly bf obtiined only Iw first obtaining an order from the Court directing th^ performance »f the act required, called au order nisi, and, on tuis being disobeyed, a further order was obtained -ailed an order absolute. This order nisi has been abol- ished, anl Order 295 provides that " in lieu of an order nisi, notice is to be given of the motion for an <*rder absolute," and Order 296 that " Where the appHcation for ^^iich an order is made, by reason of default in the production of books and papers in the Master's office, or in the ..ffice of the Clerks oi Records and Writs, »i' in • 1 Daiijord v. Cameron, aifcfcrc, 320; Ree* v. Barton, 4 W. R 703, V C. W. 2 Seton, 1212. * ' 3 Seton, 1212. 4 Braitliwaite's I'r. 167. 5 The word.s •' witli the Kegi.strar " are struck out by Ordor &60 service. 1 Kelly V. Cham. - >lalkeh • i Mly. V 5 Malt V. 1 ^ ('"Urlaij ' Blaiti V. S (liay V. ENFOR(;[Nva8 also held in this case that where an order is complied with after service of notice of motion to commit for disobedience of it, and before the motion comes on, an order to commit will not be granted, but the party will be required to pay to the applicant the costs of the motion within twenty-four hours afte" their amount has been settled. In moving under this order for non-production in the Master's office, the Master's certificate as to non-production must bear the latest possible date.^ A party neglecting to produce accounts before the Master when so required, will be ordered to pay the costs occa- sioned by his contempt, although no commitment has taken place. Where an order to commit is sought for the non-execution of a conveyance, which has been directed to be kept at a solicitor's offivje for execution, it must be shown that the conveyance was accessible for execution in such office.^ The Court will not order a commitment for disobeying a decree where the disobedience is, in effect, the non-payment of money .^ Service of motion to com- mit on the solicitor of the party charged with contempt for non- production of documents in the Master's office is good service." An appUcation to commit a witness for contempt in refusing to sign depositions made by him will not be granted ex parte. Notice should be served on the witness.^ Four days notice must be given of a motion to commit.^ The notice of motion to take an affida- vit on production off the files, and to commit for contempt, should be served on the defendant's solicitor, and not on the defendant 1 "I M ri 1 1 Kelly V Smith ; Gamble v. Ellin, ; Connor v. Sm-aggr : ] Cham, R. 364 ; and Gray v. Uatch, 2 tnam, R. 12. 2 Malkch V. Plunkett, 1 Cham. R. 381. ■ ^omnille v. Joyce, 1 Cham. R. 202. ] mi\. mier, 1 Cham. R. 370. 3 Malev. Bouchier, 1 Cham. R. 359 ; S. C. 2 Cham. R. 254. U iJourlay V. RiddM, 2 Cham. R. 158. ' f,''"'* V Terryherry, 1 Cham. R 256. » l"ay V. Hatch, 2 Cham. R. 12. 646 DECREKS ANT) ORDERS. ^1 ^•^'W**! i** — 1 d:* m' ■i personally. Motions for orders to commit for non-production are properly made in Chambers. A party parting with papers after service on him of an order to produce, was ordered to produce them, to file a better affidavit, and to pay costs.^ The Court will not detain a person in gaol merely for the non-payment of money; but in order to punish any one who has been guilty of a contempt of Court, it may imprison him for a stated period, allowing him to be discharged if he pay the costs of his contempt before the expi- ration of such period. The Court will entertain applications affecting the liberty of the subject during vacation. Poverty is no excuse for delay in making an application to the Court, as in such case the party can apply in forma pauperis.^ A party who was in contempt to an attachment for not bringing accounts itito the Master's office for the purpose of a reference, afterwards tiled the same with the Master, but neglected to pay the opposite party the costs of the proceedings to put him into contempt, and a motion was now made ex parte for an order to remove the accounts so brought in from the files in the Master's office, in order that the party might be jjroceeded against for the contempt, — the order was granted.* In proceedings against a corporation to enforce obedience to a decree or order, it is not necessary to sue out a writ of Histrinpas ; the proper made of proceeding is by Orders nisi and al>solute for a sequestration.^ This decision was made before Orders nisi were abolished. Notice would now be given under Order 295. A party neglecting to produce accounts before the Master when so required, will be ordered to pay the costs occasioned by his contempt, although no commitment has taken place.^ The Court will not grant an Order nisi against a person not a party to the suit ; where an Order against such person is | required, the proper practice to obtain it is by notice of motion or petition.^ It is improper to have recourse to an attachment when I the object sought can be obtained without such process. Where, therefore, a party directed to execute a conveyance had come into! town for the purpose of executing it, although after the period inj which strictly it should have been done, and the plaintiff's solici- 1 Bost V. Robertton, 2 Cham. R. 66. 2 Harris v, Myers, 1 Cham. R. 229. 3 Corbeli v. Meyers, 1 Cham. R. 26. 4 A ttorneyOeneral v. Brantford, 1 Cham. R. 26. 5 Berrie v. Moore, 1 Cham. R. 107. 6 Harris v. Meyers, 1 Cham. R. 262. 7 Mason v. Seeney, 2 Cham, R. 220, §•-».— rr^ ENFORCfNO THE EXECUTION OF DECREES AND ORDERS. 64«7 tor, with a knowledge of these facts, issued an attachment, it was set aside with costs.^ Where a party is in contempt for not briuging in accounts into the Master's office, it is a sufficient clearing of his contempt to bring in such accounts, and the sufficiency of them will not be looked iuto.^ On moving to ijiake an Order nisi for not delivering an abstract of title, absolute, it is necessary to show that it has not been delivered to either party named in the Order.^ A motion was made ex parte for an attach- ment, where a receiver had been appointed to make certain affida- vits within a limited time and had failed to do so. It was considered that notice must be given.* A married woman defend- ant liviug 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 I default, unless he shows some ground of exemption." Where, on an application against parties who had been ordered to bring in accounts into a Master's office, for an Order nisi, on the ground that the accounts brought in were insufficient, it appeared that the insufficiency consisted in the items of the accounts being undated, the Order nisi was refused. In such a case, before applying for an Order nisi, a warrant should be obtained from the Master calling upon the parties to bring in better accounts." Where an Order mi'' lias been duly served to enforce the filing of accounts in the Master's office ; and accounts are filed, but the Master certifies that they are insufficient ; it is the practice to grant an order abso- lute ex parte. The practice is a harsh one, however, and, if asked, an opportunity will be given to show the sufficiency of the accounts.^ A notice of motion for an order absolute for non-pro- duction in the Registrar's office, under Order 31, of 6th February, J1865, requires personal service by analogy to the former practice m Order nisi.^ Four days' notice must be given of a motion to |comm:t.* A motion to commit must be made on four days' notice. 3, therefore, an application for an order to put in a better I Oaney v. Patterson, 2 Cham. R. 217. Jwtv JfcA'ab, ICham R. 31. »mhy V. Peehan, 2 Cham. R. 53. I Itnnhan v. WiUctB, 1 Cham. R. 91. Iftmey v. C^mlman, 1 Cham. R. 292. 5 111 lieu of an order nisi notice is now to be given for an Order absolute. See Order 295. if^nur V. Seemi7ig, 1 Cliam. R. 116. !m«n V. Dickiion, 1 Cham. R. 36« ^mr, Hatch, 2Chiun. R. 12. •-**■ 648 >.»' DECKERS AND ORDEPS. 2»m, affidavit on production, or be committed, was made on two davs' notice, the Secretary refused the motion.^ A direction to do an I act "forthwith" is a sufficient compliance with Orders 288 and 293. Where, under an order so endorsed, a party was attached for disobedience, the attachment was held to be regular and the parties only entitled to their discharge on compliance with it. Where th( attorney of the parties directed to confess judgment at law had been arrested for disobedience of the order as well as the parties I themselves, his arrest was held to be irregular and his discharge or'^ -ed.'^ When a party has been committed for not briii. 795. * ' 3 Aran., Prec. in Cha. 331 : Cowdray v. Cro^it, 24 Beav 446 ; ante, p. 426. 4 Mackenzie v. Mackenzie, 5 De G. & S. 338 ; lie Reynolds, 10 W. R. 709, V. 5 Braithwaite's Pr. 284. 6 Ord. 289. 7 Harr, by Newl. 138. 8 Braithwaite's Pr. 285. For fonn of order, see Seton, 1214. IMAGE EVALUATION TEST TARGET (MT-3) ^^ {./ j^f ^^^ 4^ 4^ w^ 11.25 ^1^ Ui 2.0 lU 140 IRisE Photographic ^Sciences Corporation 23 WkST MAIN STRUT WEBSTIR.N.Y. 145M (716) •72-4503 •^ Cv as 650 • I r v; I DECREES AND ORDERS. ■ 'h ■f ■(■> 3*«»»»* zatm 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 is satisfied by affidavit that such is the case, the partv prosecuting the Order shall be entitled to an Order for a Com- mission of sequestration against the estate and eft'eets of the disobedient party ; and it shall not be necessary for that purpose to sue out an attachment." Order 291 provides that 'If apai-tv who is ordered to pay money, neglects to obey the Order accord- ing to the exigency thereof, the party prosecuting the Order mav, at the expiration of the time limited for the performance thereof, apply in Chambers for a writ of sequestration a<:;ainfit tin defaulting party, and upon proof of due service of a notice of the n^rMrn, unless the Court thinks proper to dispense withsucli ser\\.:>, and upon proof, by affidavit, of such other matters, if any, hm uie Court re([uires, the Court may order a writ of seques- tration ^0 iFisue." As a general rule, a sequestratisn will not be ordered if there has been any irregularity in the attachment ; but where the attachmeut had been issued into a wrong county, and the defendant was abroad, the Court ordered the writ of sequestration to insne, with ont a fresh attachment. The person against whom a sequestration has issued may, by his conduct, waive his right to object to it, on the ground of irre- gularity.^ The process of sequestration on final process is a writ or com- mission directed to certain persons nominated l)y the person prose- cuting the decree or order, empowering them to enter upon the real estate of the disobedient person, and to receive, sequestrate, and take the rents and profits thereof, and also his personal estate, and keep the same under sequestration in their hands until he shall have performed the act required, and clfeared liib contempt.' Sequestrations are stated to have been first introduced in Sir Nicholas Bacon's time, and were then but sparingly used in pro- cess, and after a decree to sequester the thing in demand only.' It is said that the first instance of a sequestration after a decree 1 Conit T. Barr, 2 Russ. 161, 168. 2 S«e Hiude, 188. t Barl qf KUdare t. Etutaee, 1 Vern, 421 ; 8 BIk. Com. Hi. ENFORCING THE EXECUTION OF DECREES A^^D ORDERS. 651 , lu Sir Thomas Read's case, in Lord Coventry'': ♦i. e ;* another lis issued in Lake v. Meares,^ 11 Jac, and in the ,.a&e of Hide v. fit ill 1666 :* which was affirmed in part ;* the same process s to have been adopted by the Court of Exchequer in Gvmvus fontaine, 1687,^ and in a case of Witham v. Bland,^ in Lord Ihafkesbury's time.^ ^ There appear, however, to have been great struggles between the ourts of Common Law and Courts of Equity before this process established : the former holding that a Court of Conscience ould only give remedy in personam and not in rem, and that enuestrators were trespassers, against whom an action at Law lould lie ;^ and to such extent does the objection of the Courts of Law to this process appear to have been carried, that, according to I case cited by Lord Nottingham, in Colston v. Gardiner,^ a ques- tion was entertained upon an indictment for murder, where one m killed for laying on a sequestration, whether the homicide was justifiable or not.^* But the process has become, by long use and jcquie8cence,the legal and ordinary process of the Court." A sequestration is usually directed to four sequestrators ; and [are ought to be taken that the persons named are abis to answer lor what shall come to their hands, in case they should be called jpon to account.^^ The writ is to a great extent a recital of the |)rder for the sequestration ; the form must, therefore, be varied to neet the circumstances of each particular case." This is the English practice, but ours is different. Our Order, m, provides that " Commissions of sequestration are to be piiected to the sheriff, unless otherwise ordered." A writ of sequestration cannot properly be issued on proecipe. efore such writs can be regularly issued, the order for the pay- 1 Sorth'8 life of L. K. Guilford, vol. 2, p. 73. « ! TothiU, 17S. 3 1 Ch*. C«. 91, 93 : Freeman, 126, 168 ; Beddingfield v. Zoueh, ib. 168. 4 8ee3Swan«t. 296, n. (c.) 6Se«i6iA208, n.; 287, n. (o.) , 8CiUd2Ch. Ca 4«. 7 HiDdc, 12b 8 Bnaraw v. WatU, Cro. Elix 661. , »JCh.C» 44;S8wwirt. 279, n. ,. i • I 10 Glib. For. Rom. 78 ; HInde, 128. .. ■ I 11 HiDde. 128. ^ ^^ul ^f^l' ^^ '^ '* "''^ ewential that the commiMionen should be professional penoni ■ Bnitninute s Pr. 840. ' U Bnittiwtite'8 Pr 84a f 33.1--, J 652 DECREKS AND ORDERS. ment of tho money must l)e servpfl, and an affidavit of such servij and of the non-payment filed. A writ so issued on /Jmr/jiewas aside, but without costs.* A commission of sequestration is prepared by the solicitor of tl party prosecutincj the contempt ; it must be indorsed with tL name and usual place of business of such solicitor and of hi agent, if any, or with the name and place of residence of thenar prosecutino; the contenrpt, where he acts in person, and, in ntb ease, with the address fo'. service, if any.'^ The return to a writ of se(|ueHtration is indorsed on theeomraij sion ; but it is not the practice to file it.'' The person prosecuting the detu-ee or order must, if he wishes have another sequestration, or any further remedy, after th return of nulhi hnna apply spi'cially to the Court.^ When a sequestration is to he executed, it should be delivered I the sequestrators, or sheriff, by the solicitor, with proper Inst™ ti(ms for carrying it into effect." The sequestrators, under a sequestration, may take all the goiM and chattels in the possession of the disobedient person, or wliicj they can come at without suit or action. With respect to c//o;i»'«ij action in the hands of a third person, it seems doubtful whethej they can be taken under a sequestration, without the consent the party in whose hands they are.'' The result of the casej appears to be, that where a chnHe in action is in the hands of third person, who is willing to abide by the order of the Court, who admits it to belong to the party against whom the sequestd tion has issued, the Court will consider it liable to the sequestriJ tion, and will order it to be paid into Court. The difficulty witj regard to the effect of a sequestration upon a chow inaction ami where the individual, in whose hands it is, disputes either tiij amount, or- the title of the party whose property is sequestereil. :il to the manner in which the sequestration is to be made availiiblj 1 /'•i»frf«v »>»(«<■,' 2 Cham. R. 212. 2 Ord. .lO. 3 Ooldmnith v. GolcUtmUh, 6 Hare, 123, 129: 10 Jiir 561 : Braithwaito'H Pr. 2lH. . 4 Braith« Kite's Pr. 291; and see Wright v. Wellesley, 1 Smith's Pr. 201 ; Kmtt v. C«i««.l»««1 470. 6 1 Turn. & Ven. 122. ^„^ .„ , . „ji.„, 6 WiUon V. Metcalf, 1 Beav. 263, 270 ; Franeklyn v Calhoun, 3 Swanst 276, 311 : Lort l«««"' Duehett 0/ SeueaMle, ih. 290, n, : Johmon v. ChipfndaU^ 2 Sim. 66^ 6i. T E.VF0RCINO TIIK KXECUTJON OF DECRBES AND ORDERS. 653 I reach such property. That the Court cannot, in such u case, gke an order M.pon an unwillinf? party, is clear from the cases Kivt' referred to.^ In a ease in our owu Court the following points were decided : It that a chose in action is not a subject f)f sciiuestration unless a L] iiaity, the debtor, consents to it ; 2nd, that a creditor has a ir'iit, imdera writ of sequestration, to compel payment by a third tv of a debt which he owes to the defendant a^^ainst whose ate the writ issues; 3rd, that a chose in action is not so bound, Itlierhvtho issue of a s('(|U('stration, or by its delivery to the lerirt, as to i)revent the third party paying his creditor in good lith, and so discharging himscdf or jireventing the creditor in good ^th transferring the security, and so avoiding the effect of the fiiKNtration ; 4tli, that writs of execution only lund moneys, loses in action, or secnrities for money, from the time of seizure ihesheritf, and not from the time either of the issue of the writ [the delivery thereof to the sheriff.^ Rent to accrnc due is not a ^oise in action, and a tenant in respect to it, may attorn ; but where !tenant, having been notified by the secpiestrator, promised to pa^ the rent in future, and afterwards, on being indenmified, paid |t 3 O'ff- "1 : 7 Jur. N. S. 1272 ; but see Carno v. Cooper, 10 Jur. N. 8. 11 ; 12 L „; "i'W, V. C. 8. ; 10 Jur. N. S. 42» ; 12 W. R. fiSO, 767. L. C. I W *''■ ^''**'' **** "*^' ' ^^^ "' ^♦«W«rdnte, 2 Aiwt. 533, 630 ; CMuer \. Fallon, T. & R. '■r,i si 654 OU'RKKS AND ORDERS. 4 'lit I I 4- •■"i ■ r. attached. This diBtinctioii ariHes from principleH of public |)oliev| which conHider half-pay as intended to provide decent mainteimnd for experienced officers, both as a reward for their past services, an to enable them to preserve such a situation that they may be alwnv ready to return into actual service.' The question, whether the coramissionerH, under a writ of s^ questration upon mesne process, can seize the books and papers a corporation, was discussed in Lowten v. The Mttyur <>/ Cokkfi tev'^ but was not decided : although Lord Eldon expresBed strou doubts as to the existence of such a power. It appears that Lord Eldon was of opinion that sequestratoii have the power of breaking open doors in the execution of theil duty ;' and iu Lord Pdham v. 77te Duchets of Npwtmtk,* thj sequestrators were allowed to open boxes and rooms that wtr locked, if the keys were denied the' , and to schedule the goods iij them ; but to remove nothing from the hous^ without the spccia order of the Court. The latter part of the order in the above case, which prohibit^ the sequestrators from removing anything from the house, is con] sistent with the ordhiary practice of the (.'ourt : which, coiisideriii| goods taken upon sequestrations on mesne process as in tlie naturd of a pledge to answer the contempt, merely gives the sequestrator^ power to take the property from the defendant, and to prevent liii enjoyment of it till he has cleared his contempt. And it seeing that, if the sequestrators take upon themselves to remove tin "le-l fendant's property, they will be liable to an attachment.^ If, under a sequestration, a sale is wanted, application should bd made to the Com-t for permission to sell ; but an ordtr for the saitj of goods taken upon mesne process, will not be made : except foij the purpose of raising money to pay the expenses." In the cast] however, of sequestrations to enforce decrees or orders, the Con will order the sale of goods : such as rents paid in kind, or m 1 Per L. C. B. Maodonald, 2 Aniit. Ml : and Me Spooner v. Paynt, 1 De U. M. * 0. S8S, 388 : K Jiir| m. ' 2 2 Mer. S96, 397. 3 See 2 Mer. 397. 4 S Swanst. 290, n. 5 D»$brot0 V. Crommie, Bunb. 278 : Hafet v. Sim/toe, I Yes. J. 86. , „, ^, « e u. «», «, . ■ > SmUh, 3 Bro. C. C. »02. oifuerv. To i//«r, 1681m. 3U; Knight v. Knight, 4 W. R. 771, V, C. K. For form of order for p^** \Brtnnan, lU Brennan, 2 Jr**" £"»<^«'' » Cham. R. 0. ''"*»ay.Dnptr,ubitup (iriiit, 274. Wright, ubi »up. !;>, „ 656 DflCREKS AND ORDERS. profits thereof. Under this authority, the sequestrators may entprl into the possession of such pavts of the real estate as are in thef occupation of the disobedieiit person, wliether freehold or copyhold;' and may also enter into the receipt of the rents and profits of such I estates as are in the occupation of tenants. The sequestrators, upon enterinpj upon the real estate of thi disobedient person, should serve the tenants in posseHsion with a notice in writing to attorn and pay their arrears and fJirowiiif; rents | to them : which may be done, either by B.rviijg the tenant person- ally with the notice, and at the same time showing him the seqjes- tration under seal, or by l(;aving the notice at his dwelling-house I with some of his family, together with a copy of the sequestration. [ and showing tlu* original writ tt) the person served.^ If the tenants refuse to attorn, the proper course appears to he t* obtain from the sequestrators a return of the names of the tenants. I and of then" refusal to attorn,^ and then to move, ujwn notice toj the tenants, that they may be ordered to attorn and pay their rents to the sequestrators.* This order should be made upon tk\ tenants by name, and not upon the tenants generally.^ The tenant of a party against whom a writ of sequestration has issued will be ordered to pay the Commissioner rent shewn to bi due, and also to attorn and pay the accruing rent.^ Sequestrators I can lease for any period during which the rents will be less in tht aggregate than the amount for which sequestration issued.^ Whciv a sequestration has issued to compel payment under a decree, and there appeared to have been considerable delay in enforcing tht | paymei ^t of rents, during which period the defendant had died, and one of his heii's had received sundry sums for rent, a motion that I such rents be paid over again to the sequestrators by the tenants | was refused, and the tenants ordered to attorn as to future rents only.^ 1 CoUton V Ganlner,, 2 Ch. Ca. 43, 46 ; 3 SwanHt. 279, n. In The MatquUof Caenmrthen^. Uawton, the Court of Encheqiier appears to have doubted whether th*-y could revive a scquM tration against the heir U copyliold lands, on account o; ' he dithculty of compelliii(f tne lonl '■' admit the sequestrators, md also by reason of the lord's riL'ht to the fine ; 3 Swanst. 'M, n. ; >«M ib. 298. 2 See Shau) v. Wright, Reg. Lib. 1795, B 662 ; 3 Ves. 22, 24. 3 The return aeed not bo filed : Seton, 1219. ,., 4 Itowley v. Ridley, 2 Dick. 622, 631, ciU'd 4 Ves. 738 ; 3^wan.st 306. n. (6) ; Amn., 2 Ch. Ci. IM Goldmnith v. Goldmnith, 5 Hare, 123, 127, 129 : lO^ur. 561. For form of order, see Seton. l." 5 Anon., aOha. Ca 163. 6 Jaektmi v. Jackwn, 1 Cham. R. 115. 7 Worrw V. Af»>j/*Tii, 3 Cham. R. 86. 8 //orrw V. J/t'i/er*, 3Cham. R.107. ENFORCING THE EXECUTION OF DECUEES AND ORDEBS. G57 We have seen before, that sequestrators may tokc possession of yds iu t'le disobedient person's own occupation. It seems, also, that where the sequestration is for the non-i)erformance of a decree, the Court will, upon motion with notice, give them authority to set and let the property ;^ but no such authoriiy will be given where the sequestration is upon mesne process.^ A fraudulent alienation of property will not prevent the effect of I a sequestration ;^ and where, upon a motior for a writ of assistance to enforce an injunction to put sequestratoru into possession of the I house and goods of the defendant, the defendant alleged that he id assigned the house and goods to A.B. for a valuable considera- tion, it was ordered that A. B. should be examined pro interesae auo, onless be showed cause to the contrary at^the next seal.* Sequestrators are accountable for all that they receive, and are I bound from time to time to make returns to the Court of what comes to their hands under the sequestration ;** and they may be ordered, on motion with notice, to pass their accounts and pay over their balances." Where the sequestration is for non-performance of a decree for payment of money, the proceeds are applicable to the payment of the demand ;^ but the sequestrators ought not so to apply them of their own authority. They ought to bring the money arising from the rents or otherwise into Court : which they may obtain leave to do by petition or motion ; and the person who is desirous of having the sequestered property applied under the decree, iu satisfaction of his demand, must apply to the Court for I that purpose.*^ It appears that the Court will direct a writ of assistance to issue, I for the purpose of putting sequestrators into possession.® It is a contempt of the Court to disturb sequestrators, in their I possession of property taken under the sequestration ;*° and where 1 SmU v. Bealing, 3 Swanst 804, n. (c) , Harvey v. Harvey, 3 Cha. Rep. 87 ; Dunkley v. Seribnor, z Mad. M3, 446. J%*- , 3 8wan8t 306, Ti. 3 CoUton V. Gardner, a Cha Ca. 43, 46: S. C. nam. CoulHon v. Gardiner, 8 Swanst. 279, n. ; ITie- Mm V. Bland, ib 277, n : Bird v. Littlehalet, ib. 299, n. ; Uamblyn v. Ley, ib. 301, n. ; Blen- hmopp V Blei%kiti»opp, 12 Beav. 568, 583 ; 14 Jur. 777 : 1 De G. M. * O. 495, 499 : 16 Jur. 787. I Bird V. LittlehaUg, ubiiup. 5 DeArotD V. Crommie, Bunb. 272, Howell v. Lord Coningsby, 1 Fowl Ex. Pr. 161. « Hlnde, 138. For forms of order, see Seton, 1219. I Davuy. Davie, 2 \tk.H. 8 1 Newl. 689. ■-,•' » Sm Seton, 1216 ; and for form of order, see ib. 1229, No. 2. .. 10 ^>V<( T. Smuh, 9 Ves. 836 ; Lord PMam v. Ducheuof Neueattle, 3 Swanst. 280, n. t i8 1 658 DECREES AND ORDERS. Bequestrators have been forcibly dispoflsesscd, the Court will com- pel restitutiou to them of the property of which they were m dispossessed.^ Where lands or the profits of lands are the subject of a suit, and the suit has been duly registered as a Us pendens, the title is bound from the filing of the bill, and every purchaser pendente lite conies in at his peril : even though he has paid a bona Jide consideration;^ but in other cases, unless the decree or order operates as a judu- ment, the land is not liable till sequestration ;^ and so, where an account of profits is decreed ag.'^inst a trustee of land, by way of I execution of a trust, there, the person only is charged for breach of | trust in not applying the profits, and the land is not charged but while in the hands of the trustee, nor then, neither, till sequestration issued : so that purchasers before sequestration are free.^ It is to I be observed, however, that even where lands are collaterally charRcd by a sequestration, a voluntary conveyance, executed before tboj sequestration issued for the purpose of defeating it, will not have that effect;'' and that, in Witham v. Bland,^ wlvere a personal] decree had been made against the father, upon which a sequestra- tion issued, Lord Nottingham revived the sequestration against the son, who was also the heir : because he did not claim as heir, but under a voluntary conveyance, executed before the sequestration, to defeat the decree.' A sequestration binds from the time of award- ing it, and not from the time of executing it, or of its being laid on | by the Commissioners.* . . When any person claims to be entitled to an estate or other pro- perty sequestered, whether by mortgage or judgment, lease or I otherwise, or has a title paramount to the sequestration, he should apply to the Court to direct an inquiry whether the applicant has any and what interest in the property sequestered.^ This inquiry is called an examination pro interesae suo; and an order for such an 1 Lord Pelham v. Duche$8 of Netoeattle. wftt tup 8 Cro/ts V. Oldneld, 3 Swanst. 878, n. ; Bird v. Littlehaleii, ib. 209, ii. ; ftelfy. Madox, 1 Vern. 459. 8 Bird v. LittUhaleg, itbi mp. ; HamJblyn v. Ley, 3 Swanst, 301, n. : t Dick. 94 ; CovUten v. W- diner, SSwatut. 279, n. 4 CroJU ▼. OJMeld, 8 Swanst. 278, n. , , 6 CcniUton v. Gardiner, 3 Swanst. 279, n. ; Bird v. Littlehalee, ib. 299, n. ; Ilamblyn v. Ley, ». *il. n : and see Langley v. Bredon, cited ib. 284, n 6 8 Swanst. 276, n. 7 See Johnson v. Chippendale 2 81m. 66, 64, where a release by a grantee of an annuity to the gnntor, after sequestration, was held to be irood. 8 Burden v. Roekley, 1 Vem. 88. 9 The mode of proceeding is the same, where the property is In the poBiesaion of a receiver: AM^ I 6 Ves. 287 ; Atwel v. Smith, 9 Ves . 886 ; JJroo*» v. Oreathead, 1 J. & W. 178 ; Ruuttt v. TV Eatt A nglian Baiiway Company, 8 IfN. k G. 104, 113, 117, 186. ENFORCINO THE EXECUTION OP DECREES AND ORDERR. 659 examination may bo obtained by a party intoresttd, as well where the property consistB of goods and chattclH or personalty, as where it is real estate.* Thus, in Martin v. Willis,^ a person claiming title to goods seized under a secjuestration, obtained an order for an eidminatiou j^ro interesae sua, and in the niiautime that the goods might be restored to him on his giving security. . .^ An order for the inquiry will not be granted till after the seques- trators have made a return : because, till then, it cannot ap- pear to the Court what is sequestered.' The application for the order is usually made by motion, supported by affidavit show- ing the facts under which the claim arises.* It has been doubted whether a plaintiff can compel a claimant to be examined 2^'>''o intercsne suo ;^ but in Bird v. Littlehalea,^ an order was made for a person to be examined 2>^o interesse auo, on the application of the plaintiff; and similar orders were pronounced in Hamhlyn v. Lee"^ and in Johnes v. Claut/hton.^ In Bird v. Little- hales the order was made in consequence of the defendant's counsel having stated, in answer to an application for a writ of assistance, that the defendant had assigned the j)roperty for a valuable con- sideration to ^, B.; whereupon the Court directed that A. B. should be examined pro interesse mw, unless ho showed cause to the con- trary." It will be convenient here to notice our orders and decisions on the practice of examinations pro interesse suo. Our Order 6 abolishes "applications to be examined pro interesae sua-," and Order 398 provides that " Any party who might, under the former practice, have moved to be examined pro interesae auo, may apply to the Court, upon motion, for such relief as he may think him- self entitled to." Order 399, that " Notice of motion is to be served upon the defendant or defendants at least three weeks before the llArdPelham v. The Duehett of Newcastle, 3 Swanst. 200, n. See our Orders 308 to 401, ud Order 6, as to examinations pro interesse nw. I In Scacc. 10 May, 1745 : 1 Fowl. Ex. Pr. 160, where it is stiited tliat tliis order was ('.irected by tho Court to be made, similar to tliat in Mackenzie y The Marquis of Potoin, 6 Ju'iy, 1739, which was settled by the Court. S Lord Pelham v The Ducheu of Newcattle, 3 Swanst. 289, n. 4 Uvnt V Priest, 2 Dicli. 640. The order is sometimes made at Chambers, on sv^mnons. For fonn of Older, see Seton, 1220, No. 1. ( Eay» T. Cfunningham, 6 Mad. 406. « 8 Swanst. 299, 800, n. » • t 7 Seton, 1220 ; 1 Dlclc. 04 ; 3 Swanst. 803, n. 7 Jae. 678. ' »«ntT. L««eAalM,R«g. Ub. 1743, A.187. , 660 DECREES AND ORDERS. c::r larito day fixed for the application ;" Order 400 provides that " Withio ten days from the service of the notice the affidavits in answer must be filed ; within six days after the expiration of such ten days, the aflidavits in reply are to be filed, and, except ho far as these affidavits are in reply, they are not to be regarded by the Court, unless upon the hearing of the motion the Court gives leave to answer them, and in that case the costs of such affidavits, and of the further affidavits consequent upon them, are to be paid by the party moving, unless the Court orders otherwise. No further evidence on either side is to be used upon the hearing of the mo. tion, without the leave of the Court;" and Order 401, that "On hearing the motion, the Court may, instead of either granting or refusing the motion, give such directions for the examination of parties or witnesses, or for the making of further enquiries, or for the institution of any suit or action, as the circumstances of the case may require." The right to be examined pro interease auo is not intended for the claimant's benefit exclusively, but rather perhaps for the benefit of the party in whose interest the goods claimed are seized. It is a right, howevei', which v'ill be granted at the instance of the claim- ant.* Under a sequestration against the defendant, property on his land had been seized, to which a third party laid claim, and which the bailiff released to the claimant upon his own undertaking. Upon enquiry by the plaintiff into the circumstances, he released the property, but not until after notice given by the claimant of a motion in the nature of one for an examination pro interesse sm. It was held that the claimant, by leaving his property in the cus- tody of the defendant, had brought the difficulty on himself, and was therefore not entitled to the costs of the application.' When sequestrators or a receiver are in possession of property belonging to a party, and a person claiming that property adversely to the party brings an action at Law against the sequestrators or receiver, for the purpose of enforcing his claim, the Court will inter- fere by injunction to prevent the person claiming from proceeding with the action ; for, although the Court will sometimes permit a person to proceed at Law against the sequestrators or receiver. 1 Prtntiai v. Drmtnan. 2 Onnt, 68S. 3 flonwy f. ntyior, I Oham. a, ZU. ENFORCING THE IXECUTION OF DECREES AND ORDERS. 661 vhere a matter is in fit state for the right to be ascertained by a trial at Law/ such a proceeding cannot be adopted, unless the per- minion of the Court has been first obtained. This was settled in Angd v. Smith* where the rule was laid down, both with respect to receivers and sequestrators, that their possession is not to be dis- turbed without leave.3 Sometimes, where a person claiming a legal right to property sequestered has made an application for an inquiry as to his inte- rest, the Court, finding his right to be clear and undisputed, has at once made an order in his favour, without an inquiry.* The Court has, also, ordered the possession of the property claimed to be delivered up to the claimant, upon his entering into good and suffi- cient security to restore it, in case the decision upor' Viis claim should be against him.' In the case of Emprvngham v. Sliort,^ where the sequestrator took possession of property wh* li wp« claim i J by a third pereon. Sir James Wigram, V. C, hac' occasioi) to investigate the practice of the Court in trying the rights v.' parties under stijUbStrations ; and he came to the conclusion, that it is perfectly clear that, in puch cases the Court exercises a discretion : observing, that " where the case has been considered to admit of no doubt, the Court has determined it without further inquiry. In some cases ^ the Court has ordered the parties to bring an ejectment ; in other cases, where the sequestrator has found a person in possession of the property, the Court has ordered a writ of assistance to issue, unless the party submitted to come in and be examined pro intereaae »uo. The Court sees what is necessary to be done, in order to try a question of right, and it then puts it in the way of trial"' An infant applies for the inquiry by his guardian.^ If it appeal's that the claimant has a plain title to the property, the sequestration will be discharged against him : with or without Costs, as the Court may determine upon the circumstances of the case.* 1 ittorn^MTfiMnU T. Mayot o/Cwmtry.lV. Wnu. aoS: Anon. eVat. SSS ; Angtl t. 3mUh,9 iUHnp. ' I Jthtu V. Cuiu^JUon, Jac. 678 ; Brookt v. OreatkeadiJ J. k W. 178 ; Bu$i$U r. BM Anglian I i>£?f*«'«,^tompaiiy, S M'N. A 0. 104, 117 ; Crom r. Wood, 18 Bmr, til. I I ]S?*^ Broughton, 1 Ve^ S. 180, 181. 7»H»ra'470.' IsX!*/*^^ "• Dfukm of XowtaoOe, S Swaiul SOU, n. *(iub.ror. Boin.81 ; TaUum j. PaHur, 1 Sm. ft O. 606 : I Jtir. N. a On. < if ^ k 'S. 662 ; » DECREES AND ORDERS. I . »ito Where sequestrators are in the possession of lands or tenements in question in the cause, the appointment of a receiver of tho rert-* and profits of those lands will have the effect of discharging the sequestration.^ Where the person against whom sc^uestraticm on mesne process has issued dies, the process, being pei-sonal, not only abates but falls altogether, and cannot be revived ; but it is othei-wise where it has issued for non-pei^formance of a decree :^ for there, the seques- tration is merely abated with tlie suit, and, being in the nature of an execution, it may be revived against the personal representa- tive of the person." If the decree, in such case, is for a mere per- sonal demand, the sequestration can only be revived against the personal representative, and not against the heir :* unless the decree is for the performance of a covenant in which the heir is bound, or for the land itself Where, however, the land descends to an heir in tail,^ or to a purchaser ; the land, of course, ceases to be bound, unless it has been entailed or conveyed away, subsequently to the decree, or with the view of avoiding the efiect of the sequestration. A sequestration against the lands of a married man will not bind his wife's dower after his death, even though the marriage took place after the sequestration issued f and where a sequestration was awarded to sequester a manor and other real estate belonging to a defendant, to satisfy a decree, out of which manor an annuity was secured to the defendant's wife, which, together with the manor, had been sequestered during the husband's life : upon the applica- tion of the wife, after the defendant's death, the sequestration was discharged, as far as respected the annuity.^ A sequestration will not go or be revived against an heir on the death of the ancestor, unless the suit be revived f and it is to be noticed that, in such case, the suit must be revived against the heir ; and that a revivor against the personal representative alone, will 1 Shaw V. Wright, 3 \es. 22, 2i. ' ' * ■' 2 Hawkins v. Crook, 3 Atk. 694: University College v. Foxeroft, 1 Vera. 166 -.Ranuhaw^. Often hiU, cited 1 Ves. S. 183. 3 Burdett v. Rookley, 1 Veni. 68 ; Wharam v. Broughton, 1 Ves. S. 180, 182, 183 ; White v. Hay- ward, 2 Ves. S. 481, 464 ; Hyde v. Greenhill, 1 Dick. 106 : and see Tatham v. Parker, 1 Sm. s O. 506 ; 1 Jur. N. 8. 992. 1 Burdett v. Rookley, 1 Vern. 58 ; Cniverrity College v. Foxerqft. ib. 166 ; Wharam t. BrovghtM, 1 Ves. 8 180 : £fyrf« v. Oreenhill, ubi mp. ; Marquis of Caermartktn v. £f owion, 3 Swuut a», 298, n. 6 Earl ofAthol r. Earl of Derby, 1 Cha. Ca. 220. « Burdett v. Rookley, 1 Vera. 118. 7 Proetor v. Reynol, 1 Cha. Rep. 247 ; Lattgley v. Breydon, oited 2 Oha. Ca. 46. 8 Derby v. Anorain, cited 2 Oha. Oa. 46. ENFORCING THE EXECUTION OF DECREES AND ORDERS. 663 not warrant the revivor of the sequestration against the heir. * ^Vhere a sequestration to compel the performance of a decree had been issued against a person who subsequently died, it was held that the writ could be revived against his heirs. Sfimhle, that seouestration issued on mesne process cannot be revived.^ The proper course, where there is an abatement of the suit by the death of the plaintiff, appears to be, for the peraon whose property is sequestered, to move that the representative of the plaintiff may revive the suit within a given time, or else that the sequestration may be removed.^ It seems, however, that where sequestration is upon real estate, and the person in default dies, but the plaintiff does not revive the suit against the real representative, the person claiming the land may proceed by ejectment to recover possession of it, aiid that the Court will not restrain him.* Where, however, a sequestration is in force, or has been revived, a party claiming an interest in the property sequestered ought not to proceed by eject- ment or other action to recover it, but should apply to the Court for an inquiry as to his interest. Where a sequestrator abuses his power, the Court will, upon re- presentation of the facts, make an order that he show cause why he should not be committed and pay the costs to the party com- plaining.* The costs of a sequestration are not liquidated, but are costs to be taxed. The fees payable to the commissioners are regulated by the nature and value of the property.® Sometimes the sequestra- tors have been allowed a poundage, and sometimes, under circum- stances of trouble and expense, a specific sum i n solido? Our Order 297 provides that " Every person, not being a party in a cause, who has obtained an Order, or in whose favor an Order iias 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 in a cause, against whom obedience to an ISjeBunteMv. iloo*fay, IVern. ed. Raithby, 68, n. • • .r.'vii. ! I*^. '• '«y««. 3 Cham. R. 102. : ?• f *'^ *• Uayumrd, 2 Vm. 8. 462, 464. 1 1^^ ti ^o^^l^y. «** «Mp. ; Hag. Lib. 1681, A. 671 ; 1682, A. 184. * **™/«I*«»» V. Lord Uarley, 8 Swanst. 201, n. « Bnithwaite'g Pr. 241. T 1 Turn, ft Ven. 126 ; Wood ▼. FnenMn, 2 Atk. 643 ; and see Hawkint v. Crook, 8 Atk. 6M. 1 'II 664 a»; >'' DECREES AND ORDERS. ■ »y.. Order of the Court may be enforced, shall be liable to the same process for enforcing obedience to the Order as if he were a partv to the cause." And Order 294, that " It shall not be necessary to issue a writ of attachment or injunction upon an Order for deliveiy of possession, but the party prosecuting the Order, upon filing with the Clerk of Records and Writs an aflBdavit of service of the same, I and of non-compliance therewith, shall be entitled without furthei Order to a writ of assistance. ^ »■» It may here be mentioned that Order 464 provides that " In a s'nt for foreclosure or for redemption, the mortgagor or other person entitled to the Equity of redemption, 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." The affidavit need only show that the order was not complied with within the time limited : it need not show an existing non- compliance at the time the application for the writ is made.^ The copy of the decree or order served need not be endorsed with the notice required previously to the issue of an attachment ; but the writ will be issued notwithstanding the copy of the decree or order was so endorsed.^ In preparing the writ, the language of the decree or order should be followed.* The writ is lodged with the sheriff of the county, and is executed in the name of the sheriflT. The Court will enjoin an action brought against a sherift's officer, in respect of his acts under the writ • although damages are claimed against him for taking chattels not included in the order.* Process of contempt for non-performance of a decree or order, has the same eftect in preventing the party from being heard, as the like process for not appearing or answering ; and the contempt may be cleared, waived, or discharged, in nearly the same manner. 1 Webtterv. Taylor, 18 Jur. 869, V. C. W. 2 Bower v. Cooper, 'i Hare, 413 ; Bralthwaite's Pr. 168 ; Seton, 1229. 8 Bralthwaite's Pr. 168. 4 Walker t. MiekUthtoaUe, 1 Dr. & S. 40. ENFORCING THE EXECUTION OF DECREES AND ORDERS. 665 In addition to the processes already mentioned of receiving moneys Idirected to be paid by an order of the Court, it is provided by the I Arrest and Imprisonment Act (Con. Sta. U. C. C. 24, S. 19) that 'For the purpose of enforcing payment of any money, or of any leoste, charges or expenses payable by any decree or order of the I Court of Chancery ; or any rule or order of the Court of Queen's IBench, or Common Pleas, or any decree, order or rule of a County Icourt, the person to receive payment shall be entitled to Writs of hieri Focim, and Venditioni Eayponas respectively against the Iproperty of the person to pay, and shall also be entitled to attach land enforce payment of the debts of or accruing to the person to Ipay, in the same manner respectively and subject to the same rules* Its nearly as may be, as in the case of a judgment at law in a civil laction : 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 Ithe same rights and remedies in respect thereof, and the Writs shall Ibe executed in the same manner and subject to the same conditions las nearly as may be, as in the case of like Writs in other cases ; but, Irabject to such general orders and rules varying or otherwise liffecting the practice in regard to the said matters, as the Courts Irespectively may from time to time make under their authority in Ithat behalf." Itis irregular to take out a Ji. fa. the instant costs have been without allowing a reasonable time to the Solicitor whose client has to pay them, to communicate the result of the taxation. A retaining fee of $20 is not taxable.^ A Sheriff, in his advertise- ment of sale of lands seized under a fi. fa. from this Court, had described them as the lands of the defendant, when they were those of the plaintiff, on an application or notice the ret j"n was alloved to be amended on payment of costs of the motion.^ The Court will grant an order for the examination of the defendant for the purpose of ascei-taining what debts are due the defendant under the Statute, with a view of garnishing such debts.' Where an application is made to compel a garnishee to pay over to the creditor debts due by 1 Mien 7. CidUn, 2 Cham. R. 94, cltinjr PerHtuv. The National Aimrcmetandlnmttment Auo. '^^^^bJ "v* N ^1 : Cruiek»hanky. Moss, 8 L. J. N. S. 489 ; Henry ▼. Com. Sank, 17 n C Q. B. 104 ; Jones v. B. U. C, V. C. Mowat, 8 October, 18«7. . • u. v. J JrCa»,n V. Eastumd, 2 Cham. R. 182. j > Boaitkk V. Shortit, 1 Cham. R. 69. 1 ^j u ^» .f W(t1UU'»' 666 DECREES AND ORDERS. ■< U *'■>>, him to the debtor, which have been garnished, notice must be served on such garnishee/ An award for an amount together with costs having been made in favor of a party, the costs were taxed bv consent, and the amount promised to be paid to the solicitor of the I party ordered to receive such costs. A garnishee order was subsequently obtained by a third party, under which the amount awarded and the costs were paid over to such third party with notice, however, of the solicitors' lien for the costs; under these circumstances a motion made to stay proceedings to enforce payment of the costs under the award at the instance of the solicitor to whom they were payable was refused with costs.^ A debt due to an administrator in his representative character cannot be attached to answer a debt due by the administrator in his private capacity.* A creditor applying for a garnishee order is not entitled to the costs of | the application.* It may be observed generally, that the obj^ect of the Statute just referred to was to render the practice in Chancery as to Writs of fi. fa. goods, fi. fa. lands, Venditioni Exponas in both cases, and as to I garnishment as similar to that established in the CommoD Law Courts as possible. The Court has abstained from making any orders on these subjects, and the practitioner, therefore, will be guided by the Common Law practice, applying it, as near as may be, to the principles of this Court. The Sheriff levying under a Writ of ^. fa. issued by the Court of Chancery, is not entitled to an injunction to restrain proceedings against him by strangers to the suit.^ The Court will not hold a party who has been in contempt for not obeying an order, in for non-payment of the costs occasioned by his contempt.* Where part only of a debt directed to be paid by an order had been levied under a. Jieri facias, the Court refused to make an order for the payment of the balance ; but directed an inquiry as to the amount due, and ordered payment thereof within ten days after the | date of the Chief Clerk's certificate.' 1 Re Engliah, 1 Cham. R. 197. * /IT :• ^ - 2 M'Lean v. Beatty, 1 Cham. R. 138. ' ' 8 Botoman v. Boumvan, 1 Cham. R. 172. 4 Svant V. Emm, 1 Cham. R. 240. 6 Rock V. Cook, iDeQ.ii Sma. 493 : 12 Jur. 967, 2 PhU. «01 6 PherrUl v. Pherrill, 2 Cham. R. 444. 7 Uipkiru v. Hipkin$, 26 L. J. Cb. 612, V. C. B. k! T ■^^ ENFORCING THE EXECUTION OF DECREES AND ORDERS. 667 Oilicers and attendantw upon tlie Court, suitoi*s and witnesses, are ) have privilege eimdo, redeundo, et morando, for their necessary cndance ; but not otherwise ; and where any of them are arrested 1 such times of necessary attendance, it is a contempt of Court.^ A Jicitor who is proceeding to the Court, to attend to his profesvsioual iinoss there pending, is privileged from aiTest ; and the question I such cases is, whether, at the time of his arrest, he was bona fide teedinw in a direct line to or from the Court' The solicitor is I privileged if he is on his way to attend an appointment at the lices of the Court.^ If the first arrest is bad, all the detainers ed under it are so.^ The application to discharge must be made )that Court of which the proceeding is a contempt.^ Aay one who uses violence or abusive language to a person fcrving the process or orders of the Court, or uses scandalous or Bteraptuous words against the Court or the process thereof, is iible to be committed upon motion, on notice to the person so ffending.^ It seems, that where the contempt is established by I witness only, an ex paHe motion for an order nisi should be lie in the first instance : in other cases, notice of motion should sgivenJ llOtd. ofl618, No. 86. See, as to barristers: Anon. 1 Y. & C. Ex. 331 ; as to solicitors: Ex parte Ledwieh, 8 Ves. 598 ; Gasooygne's Case, 14 Ves. 183 ; Castle's Case, 16 Ves. 412 ; Attomey-Oen- trait. Leatkergellers' Company, 7 Beav. 157 ; Joies v. Rose, 11 Jur. 379. L. C. : Eyre v. Bar- m, i Jut. N. S. 652 ; W. H. 707, V. C. S. ; Ke Jewitt, 10 Jur. N. S 814 : 12 W. R. 945, M. R ; u to iiuitors and witnesses : Moore v Booth, 3 Ves. 350; Ex parte Byne, 1 V. & B 316; List's C««,2V.& B. 374 ; Orchards Case, 5 Russ. 159 ; Oibbs v. PhUlipion, 1 R. & M. 19, 21 ; Attor- ney-wneral v. Skinners' Company, 8 Sim. 377 ; C. P. Coop. 1 ; Plainer v. Maedonovgh, 1 De CiS. 23-!: S. C. noin Phinuir v. MacdoiaUl, 11 Jur. »99; Sewton v. Askew, 6 Hare, 319 ; 13 imUm : Andrewes v. WaWm, I M'N. & rt. 380, 3S9 ; 14 Jur. 260 ; and see Seton, 1238. As to the privilege and practice at law, see Chitty's Arch. 768. IPerLord Lantfdale, in Attorney-General v. Leathersellers' Company, ubi sup. ; and see Jones r. Rm, and Lyre v. Barrow, ubi sup. Mpt V. Barrow, and Re Jewitt, ubi sup. ; and see Moore v. Booth, ubi sup. ■ ': ibparte Ledwieh, ubi sup, ; and see hooper v. Lane, 6 H. L. Ca. 443 ; 3 Jur. N. S. 1026. liOfiCaw, and Newton \. Askevi, ubi sup. ; and see Eyre v. Barrow, vbi sup. ItWerof May, ItWl. See Anon. 2 Atk. 471 : Atwn. ■>. Ves. S. 520 ; Van v. Price, 1 Dick. 91 ; WU- limit. Johns, 2 Dick. 477 ; 1 Mer. 303, n. 'rf) ; Elliot v. Ualmaraek, 1 Mer. 302; Welle^ley's Cwe,2R. &M. 639: Lechmere Charlton's Case, 2}>l. &C. 316 ; Ex parte VanSandau, 1 Phil. 445, M6; Re Keane, cited Seton, 865 ; and see Smith v. Lakeman, 2 Jur. N. 8. 1202, V. C. S. ; Cole- iM»v. ir<;»t Hartlepool Railway Company, S W. R. 734, V C. W. ; Felkin v. Lord Herbert, WJur. N. S. o2 ; 12 W. R. 241, V. C. K. Privilejfe of Parliament is no protection ; WellesUy'e Isf***' ""'^ Lechinere Charlton's Case, ubi sup. fS«e8eton, 1288. Forformsof order discharging a special contempt, see Seton, 1237. /juHii * ... . .-..■ ■ ,.-. .-„ . ..- . . I... (i;;;;{ '>,*.) ' ,1"' • i' » . . ' ■ ■ ' ; ■ 'fi 668 TRIAUB OK QUESTIONS OF FACT, '' ' I. CHAPTER XXII. TRIALS OF QUESTIONS OF FACT, AND ASSESSMENTS OF DAMAOI Section I. — In what cases directed. It was formerly the practice of the Court, in certain cases whei| legal rights were involved, or where there was great difficulty! deciding upon facts, to give the parties leave to bring an action, ( to direct an issue to be tried by a jury, in a Court of Common Lai^ But now it is provided by the Chancery Act (C. 12. Con. Sta.U. S. 69) that " In any case in which the Court requires an issue to I tried by a jury, it shall not be necessary to ommence any feignei action in a Court of Law, but upon an office copy of the decree ( Order directing the trial of the issue, being entered for trial in I same manner as a Nisi Privs record is entered, the issue shall 1 tried at the Assizes, or at the Sittings of a Coimty Court in Upp Canada, in the same manner as issues are tried in actions brou in the Superior Courts of Law, or in the County Courts, and finding of the Jury shall be endorsed upon such office copy i signed by the presiding Judge, and the office copy shall be.tr mitted to the Registrar of the Court of Chancery, or instead of i recting an issue to be tried at Law, the Court may try the same 1 a jury without the intervention of a Court of Common Law, i may issue a precept or order directed to tha Sli.; " :f iiy countl the Court sees fit, requiring him to strike and im .■::-:i,. a juryfoj that purpose, and at the trial one Judge or is,- of the Corjti Chancery may sit or preside." This clause is simiiar in efiect the Imperial Statute 25 and 26 Vic. C. 42, S. 1, 2, and the EngW decisions on it will be found applicable in this Province.^ I Baylis v. Watkins, 8 Jur. N. S. 1165, L. JJ.; Egmonty. Dartll, i H. A M. 563 ; Etui*»i TA a. 573 ; youftg^ V. Femie, i De G. J. * S. 353 ; 10 Jur. N. S. 58 : Re Catholic Pt^Utlaiu «j Bookselling Company, 10 Jur. N. S. 19a : la W. R. 455, M. R. ; a De G. J. k S. 116 ; lojur. » S.y>i,h.ii.; WUliamsy. ~ .- - Toitenham and Hamfttead i see Curlewit v. Catter, 9 Ji 119, V. C K. ; Davenport - i\u. N. S, 1333 ; Davenfort y. Jal'/k^ili: aSa. 'rH ''".*• "i* AND ASSESSMENTS OF DAMAOEa 669 li. OF DAXAOI a cases when t difficulty i ; an action, IlommoD La Ion. Sta.U. an issue to I ;e any feigni the decree for trial in issue shall ourt in Up: :tions broug! Durts, aD(^ t ffice copy shall be.t instead of y the same mon Law -f 'my count; i. a juryfi It seems that the Court will now direct a question of fact to be iied before itself, or a Court of Common Law, only in those cases I which it would formerly have given the parties leave to bring I action at law, or would have directed au issue.^ It is necessary, «refore, to consider the rules which regulated the practice of the in this respect I WiieQBver the equitable title of the plaintiff depended upon his 1 title, and the latter was disputed, it was formerly the practice i^require him to establish his le jal title by an action, before grant- r any equitable relief CaRos of this kind occur most frequently ere the Court is asked to restrain the commission of acts which I injurious to the legal title ; and will, therefore, be more appro- ately discussed in the Chapter on Injunctions. I Our Order 539 provides that " Where, according to the former tice, the Court was in the habit of refusing equitable relief I the party seeking such relief had established his legal title or ht in a proceeding at Law, the Court will itself determine such I or right, without requiring the party seeking relief to proceed ' to establish the same ; but the Court may require the right to be established at law whenever it considers that course ient." Where there was contradictory evidence between persons of credit, who had equal opportunities of information, and the bee was so equally balanced on both sides that it became ibtful which scale preponderated, an issue was in general directed, order that the Court might be satisfied, by the verdict of a jury, Ae troth or falsehood of the facts controverted ; * but if the was able to come to a conclusion satisfactory to its own id, an issue was not directed, however conflicting the evidence theCoiirtSg'rtbe.* w .......... ..m.^,,v, There were cases, also, where the Court directed issues, although was no contradictory evidence, or any matter to embarrass Court, or to prevent its coming to aji immediate decision upon i»tGMrge r. WkHmore, a6 Beav. 557 ; Bradley r. Bevingim, 4 Drew. 511 ; 5 lur. N. S. 562 ; Xirrittn v. Barrow, 1 De G F. & J, 633, 639 ; Peters ▼. RmU, 5 Jur. N. S. 61 ; 7 W. R. 171, V' C W. ; EgmoHt v. Darell, i H. * M. 563 ; Eaden t. Firtk, ib 573 ; and see Damtntort v. C«Wwy, 3 H. ft M. 282. ,",■«• Pr. 476, and ed. ; 621 jrd ed. : Stokti v. Edmeades, i M'Q. & V. 436. I'MMM TL AmUrtuH, 7 De O. M. * G. 239 : see, howeyer, CcUiiu v. Saurey, 4 Bro. P. C. Ed. TobL 69* { Ma»a» v. Mmoh, i Mer. 308, 3x3. J in efiect id the Engli ice.^ 563 : EatUn y. Photic PuiluUHt * ,4 8. 116; to Jur. 1 ii. 310! FntiDt^i ; «*.2}6, L.JJ;" k/ V. WMt iN-: .DeG.»J.*S.'M lere 670 TRIALS OF QUESTIONS OF FACT, the evidence before it. Such cases, however, tvere principally aoi fined to those in whicii the common law invested a party Mm particular situation with certain rights,, of which it was the obJ of the suit to divest him. Thus, an heir at law was so far m by the Courts, that it was considered that all freehold estates ( which his ancestors died seised, or to which he was entitled at til time of his death, were vested in him, unless it was shown that tl] ordinary course of descent had been inteiTupted by the ancesK having executed a will ; and so strongly did Courts of Equity coJ sider the claim, that they would not, if the heir objected to it, eve where the evidence before them was such as to leave no jrround fj doubt upon the subject, take upon themselves to establish a \\\ affecting real estate, without previously having the opinion ( jury upon an issue devisavit vel non} , In the case also of a rector, his conmion law right to all tithes of his parish was considered so strong that the Court wou not take upon itself the responsibility of deciding against it, e\J upon the most indubitable testimony, if the rector thought prop to insist upon having it tried by a jury.^ Thus, in all cases, tl right of a rector to an issue to try the validity of a modus or coij position in lieu of tithes was considered indisputable ; and the saij rule was extendied to a vicar, who had established his general rig to the tithes in question under his endowment.^ But the rule on applied where the title to the tithes was undisputed ; for if occupiers set up and proved a different title, such as a distin grant of tithes to the pei-sons under whom they claimed, suppop by evidence of constant non-payment to the rector, to rebut whij there was no evidence on the part of the rector, he was not coj aidered entitled to an issue.* . : ■ • . 1 ^{■\..%'^r.i ri . • .■ f:-'^'\, ^ : t !. ^■ ' Even an heir at law might, by his conduct, deprive himself j his right to an issue to try the validity of a will : as where, if administration under the will would affect the real estate, whi| was subjected to the payment of debts, he at first opposed the I LordFingals. Blake, \ Moll. 113 ; Tucker \. Sanger, \ M'Cl. & Y. 425 ; Cooke v. Chelmn a M'N.A G. 18, 26 , n Jur. 702, V. C. E. ; S. C noin Cooke v. THruer, 1$ Sim. 6". "3. « V. Rossborougk, Kay, 71 ; 18 Jur. 205 : 3 De G. M. & G. 817 ; 3 Jur. N. S. 373 ; i K. « J| Soa ; Taylor \. Brown, lo W. R. 361, M. R. ; Egmont v. Darell, 1 H. & M. 563. a Williams v. Price, 4 Pri. 156. 3 Adams v. Evans, id. 14. 4 See IVilfnot v. Kellaby, Daniell, 116 ; S. C. nom. IVilmot v. Hellaby, 5 Pri. 355, and cases t . cited ; see also, Barker v. Baker, Wightw. 397. AND ASSESSMENTS OF DAMAGES. 671 lute and then withdrew his opposition, and stood by and allowed the executors and devisees to pay away large sums of money under the will ;^ or where, upon a bill to peri)etuate the testimony of the vitnesses to the will, he did not cross-examine the witnesses, but took his costs as a disinherited heir ;^ or where he acquiesced in the will, in such a manner as would bar his possessory rights at Law, (namely, for twenty y (;ars,) and put the party claiming under H in a worse situation than he wonld otherwise have been in ^pJ he disputed the will originally ;' or where the will in question in the suit had been traced into his possession, but he did not produce it;* or where he admitted the will in issue in the suit, but alleged |that it had been revoked by a subsequent will in his favour, and did not produce any evidence of the revocation.' Where, however, the 'leir at law had been a party (but not in I that character,) to proceedings in the Ecclesiastical Court, and Ibefore the Judicial Committee of the Privy Council, by which the I validity of the will, as to personalty, was established, he was held Inot to have thereby waived his right to an issue devisavit vel |»M>n.' r fB' ■^•' In a creditors' suit, the Court would not grant an issue devis- hvii vel non : because the right of the creditors was paramount to |the rights of those claiming under the will, or of the heir.^ The right of an heir at law to an issue was one which he might ifaive ; and, even in the case of an infant, if his counsel thought it dear that there was no ground to dispute the will, he was justified |iii declining an issue.^ , , , ' ^ . ^ If an adult heir at law refused an issue, on the hearing of the use, the Court would establish the will against him ; though he 1 not admit the will by his answer.* "ft*«v./r«arir,Amb. 428; 2 Eden. i8a. '>'-,.. ^.' W .. ' '.•,• I 1 /4w. 3 Tvkfr V. Sa»^r, M'CI 424 : » M'CI. & V. 425 ; 13 Pri. 119 ; Man v. Ricketts, 7 Beav. 03, loi : »Jur. 159; Affd. I H. L. Ca. 4;2, nam. Rickettsv. Turquand, ( «««/*« V. Hampden, 3 Bro. P. C. Ed. Toml. 550 ; DaUton v Coatnvorth, i P. Wms. 730 ; Hayne r-^"-^'' 'o^"=>- "'./ ^oodroffe^. Wood, ib. 3a; Wtlliams v. W'fV/fawM, 33 Beav. 3^ , andwe ^««pliy. Rhodes, tb. iio. S whtaktry. Ne^vman, 2 Hare, 299, 303 : 7 Fur. 231. [^'^.'y-SpratU-y, 2 De G. & J. ^: 5 Jur. S. S. 28. ' in» V. Lny, 3 Mad. 245 ifi t wl' 672 TRIALS OF QUESTIONS OF FACT, Except in the cases of an heir at law, or of a rector or vicar, whol were entitled to issue as a matter of right, the granting of an kuel by a Court of Elquity was entirely a matter of discretion in the! Court : which it would not, however, exercise without due delibe-l ration,^ and a mistake in the exercise of which was a just groundl of appeal ; and, therefore, if the Court refused an issue, and thel Court of Appeal thought that the contrary decision would have! been a sounder exercise of discretion, it would rectify the order off the Court below accordingly \^ and so, where the House of Lordsl thought that the Court below had directed issues improperly, it re-| versed the order directing the issues, and remitted the cause, with directions to the Judge to decide upon the matter himself ^ The Court refused an issue, where, though the facts were contro verted, it saw clearly that, even if found to be as the party asking for the issue alleged them to be, the party would not in law be en-i titled to relief Thus, where a modus was clearly invalid as laidJ the Court refused to grant an issue, but decided upon the point oweH,2Kuaa. 219, 229. , ,, .»* x- v ^ l*yjfT./MWpof,2M. *K.849,3ii2. ' l!*"- «•.<«». I P-Tf*'"!!- ^'■«*««. 1 Rum- 660, n. ; Seemnbe v. Fitzgerald, %b. Ml, n. ; WhiU T. Htuty, 19 'I G74 TRIALS OF QUESTIONS OF FACT, unHupportod by ovidence, in opposition to evidence on the otheij side, was not suflicient. Thus, where Sir John Leach, M. R, h« directed issues to try the validity of a bond, merely uj)()tj the surJ mise and suggestion of a party : the bond l)eiug unobjectioiialtle uJ the face of it, and all the evidence, as to the circumstances undeg which it was obtained, was before the Cvourt upon the report of i Master, the House of Lords reversed the order directing the issue and remitted the cause to the Master of the Rolls, with direction to him to decide upon the matter himself^ , It must not, however, be understood that, unless there was con-l trailictory evidence, the Court was precluded from sending a uiattei to be investigated before a jury : for where the evidence was all on one side, but not sufficient to satisfy the conscience of the Cour that the fact was as it was represented to be, the Court was in thd habit of directing an issue to try the fact, although the evidence in support of it was not opposed by any adverse claim on the otheJ side. Thus, where the defendants had not disputed the plaintiff i title, but had put him to the proof of it by their answer, and thd plaintiffs had gone into long evidence in support of their titleJ which the Master of the Rolls did not deem satisfactory, issue were directed to try it.^ Although it sometimes happened, thai where, upon the hearing of a cause, a matter not in issue having started up, which appeared to the Court material to the question the Court directed an issue to try it,^ the Court would not permit i party to take an issue, upon a ^oint in question, in a different for from that which he had stated in his pleadings. Thus, the Cour refused to permit defendants to have an issue to prove matten which were not stated in their answers, but which appeared by thj answer of the plaintiffs to their cross bill.* So, where the plaintifl in a bill for specific performance, failed in proving the terms of th| agreement he relied upon, the Court would not assist him by dil recting an issue to ascertain the terms ;^ and a party was held nol entitled to an issue, or an inquiry, to establish a case relied upoij by his ;)leading, but omitted in proof 1 yiehol V. Vaughan, 2 Dow. & C. 420 ; 5 BUgh, N. S. 606 ; see also S. C. nom. Earl of WiwU V. Oaretty, 1 M. & K. 253 : Harrod v. Harrod, 1 K. & J. 4 ; 18 Jur. 853. 2 Moons V. De BernaU», 1 Russ. 301 : see also, Burkett v: Randall, 3 Mur. 466. 3 Baleh V. Tuekw, 2 Ch. Ca. 40. .. . ■ 4 Warden and Minor Canons of St PauFs v. KettU, 2 V. & B. 1, 16 ; and see BemteU v. A«»«i Wlghtw. 324. 5 Savage v. Carroll, 2 B. & B. 461. 6 Ibid. 1 B. & B. 648 ; Price v. Berrington, 8 M'N. & O. 486, 498 ; 16 Jur. 900, 1002. AND ASSESSMENTS OF DAMAQES. 675 ^1 issue might be directed to aHCcrtain the facts upon any qucs- tiou in the .suit ; thus, it neuins an innue would be directed upon a motion to commit a party for the V)reach of an iujunc *on, where the fact of the breach was strongly controverted ;^ and an issue hai> been directed upon an application for an injunction ;' and upon a motion for a receiver.^ An order for the trial of a question of fact before the Court itself, or a Court of Common Law, will not, in general, except by consent, be made before the question as to which an issue is sought comes before the Court for adjudication.' It seems, however, that an order for the trial of a question litvimvit vel non will be made on an interlocutory application by an heir at law ;* and that where the equitable title depeads on the legal title, and the latter is disputed, the Court will, on a motion for an injunction, direct a trial of the question of the legal title.* Where the question is directed to be tried before the Court of Chancery, it is discretionary in the Court whether a jury shall be summoned or not ; but it seems that, in general, the question will be submitted to a jury, wherever, under the former practice, leave would have been given to bring an action at law, in order to estab- lish the legal right.' ...,,, Formerly, the Court of Chancery had, in no case, power to award damages ;* but now it is provided by our Statutes 28 Vic. c. 17, S. 3, that " In all cases in which the Court has jurisdiction to enter- tain an application for an injunction against a breach of any cove- nant, contract or agreement, or against the commission or continu- ance of any wrongful act, or for the specific performance of any ',- ,.,- i. •) ■>■; ' vrMii- 1 1 1 m Agar v. Regent's Canal Company, Q. Coop. 77, 79. I Dt I'witet J. Bordenave, Jac. 616. 3 Gardiner V. Rowe, 4 Mad. 236. 4 Bradhy v. Bevington, 4 Drew. 511 ; 6 Jur. N. S. 562 ; Oeorge t. Whxtmore, 2« Bear. 667 ; Morri- wn V. Barrow, 1 De G. F. Sl J. 633, 639 , Davenport v. Goldberg, 2 H. & M. 282 ; see also FxUla- gar V. Clark, 18 Yes. 481 : RidgvMty v. Rohe-tt, 4 Hare, 106, 119. For cases whv.7e, under former practice, an issue was directed on an interlocutory application, see Bacon v. Janet, 4 M. ft C. 483 ; 3 Jur. 994 ; Anidell v. Ansdell, 4 M. & C. 449 ; TownUy v. Deare, 3 BeaT. 213 ; MiddJeton V. Sherburne, 4 Y. & C. Ex. 358, 377, 393 ; Lewia v. Thoinat, 3 Hire, 26, 29 ; Bmier y. Bradr- i*aw, 4 Jur. N. S 1011 ; 6 W. R. 427, V. C. S. ; and see Kent v. Burgeti, U Sim, 861, 377 : 6 , '"J- 188 ; Laneaehire v. Laneaehire, 9 Beav. 259. 4 MxddMon v. Sherburne, ubi mp. ; Hopwood v. Earl of Derby, 1 K. ft J. 865 ; Boruer v. Brad- < B*^*' ••** ««»., and the ca.ses there cited. » aufen V. Firth, 1 H ft M 573 ; and sec post. Chap. XXXVI., Injunctions. 7 ftejrt T. Rule. 6 Jur. N. S. 61 : 7 W. R. 171, V. C. W. ; Eaden v. Firth, 1 H. ft M. 578 ; and see rriimanv. Tottenham and Hampstead Bailway Company, 11 Jur. N. S. 264, L.JJ. : Daven- ,„f;>rtJ.Oomera,iU.&M.2B2. » B«e ifoamet v. Edge, Johns. 6A9 For a case where damaKes were g^iveo, instead of ipedflc per- wniaiM, Me Kay ▼. Johnson, 2 H. ft M. 118, 124. % 676 TRIALS OF QUESTIONS OF FACT, * I oovenant, contract or agreement, the Court, if it thinks fit, may awai'd damages to the party iajured, either in addition, to, or in substitution for such injunction or specific performance, and such damages may be ascertained in such manner as the Court may direct, or the Court may grant such other relief as it may deem just." This is similar to Sec. 2 of the Imp. Sta. 21 & 22 Vic. c. 27, and the English decisions on it are applicable here. Where a plaintiff filed a bill for an injunction and payment of damages ; and it appeared that the wrongful act complained of had, without his knowledge, been discontinued before the suit was com- menced : Held, that the Court had not jurisdiction to make a de- cree for the damages. The defendant having neglected to inform the plaintiff of the discontinuance, though applied to respecting it, before suit, the bill was dismissed without costs.^ These provisions do not, however, extend the jurisdiction of the Court, and damages yill not, therefore, be given in cases where, previously to the Act, the Court would not have ordered an injunc- tion, or decreed specific performance.^ Where the Court is of opinion that the plaintiff should have proceeded at law, no assessment of damages will be directed in equity ; but the bill will be dismissed, without prejudice to the plaintiff's right to proceed at law.' The plaintiff may, by his conduct, forfeit his right to damages,* and the damages may be awarded, although not specifically prayed by tie bill.^ Where there will be extreme difficulty in the Court seeing its way to assess the damages, leave will, it seems, be given to the plairtiff to proceed at law for the purpose of recovering damages," Unless special damage can be shown to han^ been caused by the delay, the Court will not, in addition to decreeing the specific per- formance of a contract, award damages on account of its non-per- formance' '*"'■ !i'. -...^M ■.; ..■ ., -, ■ ' . ■■: ^ . • .•*, ^t Section III. — New TriaU. If any party is dissatisfied with the verdict of the jury, or of the , he must apply for a new trial. The Court of Chancery directs issues to be tried at Law, to inform the conscience of the Court as to facts doubtful before ; and therefore expects, in returti such a verdict, and on such a case, as shall satisfy the conscience of the Court to found a decree upon. Hence, upon any material and weighty reason, if the verdict is not BQch as to satisfy the Court that it ought to found a decree upon it, there are several cases in which this Court has directed a new trial for farther satiefaction, notwithstanding it would not be granted in » Court of Common Law : because it is diverso intuitu, and because the Court proceeds on different grounds.® Acting upon this prin- ople, the Court will grant a new trial, not only in cases where the ' '^*;,^*««''^/f. W Beav. 510 ; Middleton v. Onenwood, 2 De O. J. & S. 142 : 10 Jur. N. S. jW, V.C.W., and L.J J. : Curriefs' Company v. Corbett, u6i sup. As to the form of the inquiry, *e». ; Seton, 928. No. 8 ; and as to tho evidence on the inquiry, see Mold v. WhMtoroft, 80 L. J. Ch. 598, M.R. ; pJzlf" *-7«W. 8 Beav. 218, 221 ; iVye v. Maxde, 4 M. ft C. 842, 346. « \mbt ▼. Broolu, 8 De O. & S. 452 : 13 Jur. 784 ; and see Oregg v. Taylor, 4 Rum. 879, 281. ♦ Jampwn V. Uammm, 3 V. & B. 41 ; Nieol v. Vaughan, 2 Dow. ft 0. 420; 6 Bligh. N. S. 606 ; flee ? n!n?' °' •L"*^ *<»»"i of Winehiltea v. Oeretty, 1 M. & K. 268. 267. on '• '"**«»■». 2 Phil 290 : Parker v. Morreli, ib. 468 ; WhiU v. LUle, 8 Swanit 861, n. ; 1 0. « P..r!2P;)- *'*»**• ^^ • but see DeTasUt v. Bordenavt, Jac. 616, 621 : 1 C, P. Coop. t. Cott 861 \f*t Lortf F-jdwioke, In Staee v. Mabbott, 2 Ve3. 8. 668. 678 TRIALS OP QUESTIONS OF FACT, verdict is against the evidence, but it will nicely balance the evi- dence on both sides ; and where it finds that the verdict is contrary to the weight of evidence, it will direct the issue to be tried over again.^ And the practice has always been, not to consider merely whether there was evidence which would support the finding of the jury, and, in that case, refuse a new trial, but to consider whether having regard to the entire subject matter and to the whole of the evidence given at or before the trial, and what has since be- come known, the Court is satisfied that full and complete justice has been done between the parties, and that no further investigation is necessary for the purpose of attaining that end ; and unless it is so satisfied, the Court requires that the matter shall be again tested by an examination before a jury, with such directions and modifica- tions as it may consider desirable for the fair, thorough, and impar- tial sifting of the whole matter.^ Generally, however, where the application rests solely on the ground that the verdict was against the evidence, and the judge certifies that he is not dissatisfied with the verdict, the Court will not direct a new trial.^ The Court will, however, grant a new trial upon the production of new evidence, which was not before the jury upon the original trial;* or where the Court is satisfied that evidence which was dis- credited for want of corroboration may be corroborated ;^ or it appears probable that more evidence can be adduced as to a custom;* and so, where, after a trial, a witness is convicted of perjury, or a party of forgery.'^ But the Court will not set aside a trial at Law for any matter which might have been made use of at the trial;' or wh'^r ^ it is of opinion that the evidence, though newly discovered, will nofc afford a foundation for a different verdict.^ Where it can be shown that a party has been taken by surprise, and evidence produced at the trial which he could have no reason to expect would be produced, the Court has directed a new trial.'" 1 Lord FauJeonberg v. Peiree, 1 Arab. 210 ; Cleeve v. Oateoigne, ib. 323 ; and see Loeke v. CoJwan, 2M. 4 0.42, 4tf. „ , 8 Per Sir J. Romllly, M.B., In Swinfen v. Swinfen 27 Beav. 148, 152 ; see also Waters v. WaUn, : De O. &, 8. 691 ; Ex parte, The Freemen, * copyholders of a manor : see also, Locke v. Caiman, 2 M. & C. 42, 46. 4 Hjhoft V. Beddard, 12 Sim. 28 32 ; nHnehelsea v. Wawhope, 3 Russ. 441, 445 ; WhiU v. Wilson, 13 »« 88 ; JohnHon v. Todd, « Beav. 597, fi06 ; Hitch v. IValls, 10 Beav. 84, 89 : Swin/en y. Swin- ^. 27^v. 148 ; M'Oregor r. Topham, 8 Hare, 488, 490 : 3 H. L. Ca. 132 ,■ Waters v. Waters, 2 « "" fs P. R. 263. , I «'em6«rton v. Pemderfon, 18 Ves, 290. '' *' ' v,v .; ■ G82 TRIALS OF QUESTIONS OF FACT, i gmtmrntrm as -IT : t if' j'jH ^■^>W V It seems, also, that even after three trials, the Court has power if it sees reason to be dissatisfied with the verdict, to grant a fourth. An application for this purpose was made to the Court in Pemherton v. Pemherton} and no objection was raised to the power of the Court to direct a fourth trial : though the result of the case was, that Lord Erskine, being satisfied with the verdict, refused the motion. The Court will not, however, direct a new trial after a third, unless upon some special ground ; and in Attorney -General v. Montgomery,'^ Lord Hardwicke said, that where there had been two trials, the last of which was at Bar, the Court has suffered the last to prevail ; and that to lay down a rule that there must be three would be attended with great expense. In The Warden and Minor Canons of St. PauVs v. Morris,^ after two trials, at Bar, a third trial was refused : although evidence had been rejected at the last, which the Court thought ought to have been received ; and in Bates V. Graves* the Court defused a third trial of an issue as to the validity of a will of real estate : although neither of the former trials had been at Bar. The rules which regulate the Court of Chancery in granting new trials of issues directed to Courts of Common Law having been considered, it is now proposed to state those upon which the Courts of Common Law act in granting new trials at law. For certain mistakes made by the judge during the course of the trial, a new trial may be granted. Thus, if a judge at the trial, admit improper evidence,^ or reject evidence which ought to be admitted,® by which means the result of the trial might have been different, the Court will, in general, grant a new trial.^ In some cases, however, the Court may refuse a new trial, though evidence has been improperly rejected : as where the fact which such evi- dence was offered to establish was proved by other means, or was not disputed,^ or was admitted by the opposite counsel f or where, 1 13 Ves. 290, 302, 313. '" / «.viv-,' - 2 2Atk. 378. ,^ . ,. - 8 QVes. 155,171. 4 2 Ves. J ^7 293 5 Tutton X. Andrewt, Barnes, 448 ; Baron de Rutzen v. Farr, 4 A. & E. 63: 6 N. * M. 617; Ai< Tatham v. Wright, 1 H. .\ W. 729 ; 7 A. & E. 313. 6 Smedley ▼. Hill, 2 W. Bl. 1106 ; Boyle v. WUeman, 10 Ex. 647 ; 1 Jur. N. S. 115 „ , 7 See Robimon v WUiiainson, 9 Pri. 130 ; Freeman v. Arkell 2 B. & B. 494 ; Oravenot-y. »<»«'■ hotue, 1 Blng. 31 ; Crease v. Barrett, 1 C. M. & R 919 ; Baily v. Haines, U Jur. 80, 81, Q. D , where it was held to be immaterial that the Jury professed to have given their verdict indepcU' dently of the evidence improperly received. 8 Edwards v Evans, 3 East, 451 ; Rex v. Teal, U East, 311 ; Alexander v. Barker, 2 C. 4 J. 1»; Strridt V. Roberts, 5 D. & L. 460, B. C. : Doe Walsh v. Langfield, 16 M. ft W. 497. 9 Mortimer v. MCoUan, 6M. & W. 68 ; see Straeey v. Blake, 1 M. & W. 198, AND ASSESSMENTS OF DAMAGES. 683 jBBuming the rejected evidence to have been received, a verdict in ivour of the party offering it would liave been clearly and mani- ifestly against the weight of evidence, and certainly set aside, on application to the Coui"t, *is an improper verdict ;^ and the Court refused a new trial on the gi-ouud of the improper admission of evidence, where there clearly appeared to be sufficient evidence support the verdict, independently of the evidence so admitted.^ it may here be stated, that no new trial will bo f^rnTitorl by reason of the ruling of any judge that the oiamp upon any document is sufficient, or that the document does not require a stamp .^ If the judge misdirect the jury,* a new trial may be granted. IWhere there is a misdirection on a point immediately in issue, and jibr which a bill of exceptions will lie, a new trial is a matter of ight, but this is not so where the judge makes a mistake on some Icollateral point. In the latter case, a new trial will only be Igranted if the Court is satisfied that injustice has been done by Ithe misdirection.^ Where the judge's direction was correct, but Ithe Court thought the jury might have misunderstood it, a new [trial was granted : the costs to abide the event.^ An incorrect rection to the jury upon a point which could not have influenced Itlieir verdict, is not a ground for a new trial -J nor is a wrong jobservation on a matter of fact, which is left to the jury ;* and Ithe Court refused a new trial where there had been misdirection ifith respect to one item only of the plaintiff's demand : the plain- consenting to reduce the damages by the whole sum, in respect lof which the misdirection took place.® Where the defendant ob- Itained a verdict in a case in which the plaintiff ought to have been jnon-suited, there being no evidence in support of his case, the ICourt refused a rule nisi for a new trial, on the ground of misdi- ■a 1 Per Parke, B., 1 C. M. & R. 933 ; Baron de RuUen v. Farr, 4 A. & E. 53 : 5. N. & M. 617 ; Doe Talham. v. Wright, 1 H. & W 729 : 7 A. & E. 313 ; Boianquet v. Shortridge, U Jur. 71, Ex. ; Dareh v. Tozer, 13 Jut. 959, Q. B. ; Ferrand v. Millignn, 10 Jur. 6 Q. B. -"'■'-- "^ -^ - - • _.•'..«. 4M. &P. 377. where the judge re- lent. .. , ... -, r-. C. J., in ifoore V. TwkwU, 16 L. J C P. 153 ; 1 C. B. 607 ; Cox v. Kitckin, 1 B. & P. 3S8 Calcrafl v. OOtbt, 6 T. R. 20; itobttwon v. Cook, 6 Taunt, 636 ; Wicki v. Clutterbuck, 2 Bir g. 483 ; 10 Moore, 63 ; I J,*"?*' ^- ^''*> 1 C. M & R. 89 ; Duke of NewcattU v. InkabitanU of Broxttowe, 1 N. & M. 698. I JKiiimmv fledZey, 2 C. & K. 167 ; see Lord v. Wardle, 4 Sc. 402. ;J«Ky V. Windham, 6 O. B. 166. Wnnlorv.Athlon.Vi L.]. N. S., ' 'we V. Tuckwell. ubi iuo..- spi. 1 ., , Ex. 363 . 11 M. & W. 401. Tuckwtll, ubi tup.; see Maufield v. WadtUy, 3 B. & C. 367. .v«' ^684 TRIAXS OF QUESTIONS OF FACT, W rection, but granted a rule nisi to enter a nonsuit.^ If the ml\Ji does not give the jury a sufficient direction, a new trial may some-l times be granted.^ If the judge leaves a question to the jury which he ought to de- cide himself as a point of law, and the jury decide the question! correctly, the Court will nou grant a new trial.^ The Court will not grant a new trial for an objection, either to the direction of the judge at the trial,* or to the admission* orl rejection® of evidence, unless such objection was distinctly raisedl at the trial. Where evidence is tendered for a purpose for which I it is not admissible, and rejected, a new trial will not be granted merely because such evidence was admissible for another purpose not stated at the trial.^ An objection to the admissibility of evi- dence must be made before the summing up.* The Court will not I grant a new trial upon an objection which has been waived at nm\ prius;^ nor on the ground that the judge has refused to recall a| witness, unless it is very clear that he was wrong.^" If the judge improperly discharges the jury from giving a ver- 1 diet on one or more of the issues, the Court may grant a new trial." Where, however, there were two issues, and the jury found upon both, but the judge, under a misapprehension that the finding upon the first issue rendered the second useless, discharged the jury upon the second issue, it was held, that the proper course was to apply to the judge to have the verdict entered according to his | notes, and not to move for a new trial.^^ It seems that a new trial may be granted, if the judge impro- perly refuses to postpone the trial.*^ - K , ^ 1 Vane v. Cobbold, 1 Ex. 798. 2 Elliot V. The South Devon Railway Company, 17 L. J. Ex. 262 ; IladUy v. Baxendalt, 18 Jur.33^, Ex., where the judge omitted to give a sufficient direction as to the mode of measuring th: damages. As to the effect of nondirection, see Ford v. LoLcy, 7 Jur. N. S. 684, Ex. 3 Doe Strickland v. Strickland, 19 L. J. C. P. 89. 4 Robinson v. Cook, 6 Taunt. 336 ; Morrish v. Murray, 13 M. & W. 62 : 2 D. & L. 199; Wardmn \^ BeWwuse, 9 M. & W. 596 ; Hazeldine v. Grove, 3 Q. B. 997 ; WaUon v. Whitmore, 8 Jur. 9M, Ex. ; Hearne v. Stowell, 6 Jur. 458, Q. B ; Brmon v. Storey, i Sc. N. R. 9 ; Doe Strickland v. Strickland,^ C. B. 725 ; Horlor v. CarpenUr, 27 L. J. C. P. 1. „ , ^, 6 Malin V. Taylor, 2 Hodg. 3 ; Williams v. Wilcox, 8 A. & E. 314 ; Walker v. Needham, 1 Dowl.N S. 220; Doe OitbtH v. Ross, 7 M. & W. 102 ; Doe Phillips v. Benjamin, 9 A. & E. 649; Aom v. Wagner, 7 A & E. 116 n. ; Kenn v. Neck, 3 Dowl. 163. , - 6 Gibhs V. Pike, 9 M. & W. 361 : 1 Dowl. N . S. 409 ; Goslin v. Coi-ry, 8 Sc. N. R. 24 ; Sorden v. ton- ton, 3 Jur. 1027, Q. B. ; Whitehouse v. Hemmant, 27 L. J. Ex. 296. 7 Rexv. Grant, 3 N. & M. 106 ; Doe Kinglake v. Bevis, 18 L. J. C. P. 628. 8 Abbott V. Parsons, 7 Bing. 563. 9 ShirUy v. Matthews, 1 Jur. 67, Ex. ; Melin v. Taylor, 2 Hodg. 3 ; Morrish v. Murray, ufri snp. 10 Middleton v. Bamed, 18 L. J. Ex. 433. 11 Tinkler v. Rowland, 4 A. ... the absence of the judge. llUcrUy. Hugha, 7 M. & W. 399 : 1 Dowl. N. 8. 82 ; Dauntley v. Hyde, 6 Jur. 133, Ex. ; and see jffawv. Toj/tor, 2Chit. Rep. 268. The affidavit of a juryman to the effect that he would not M*P*"^ to the answers given by the foreman of the jury to the Court, if he had known they would have entitled the plaintiff to a verdict, held, if admissible, no ground for disturbing the verdict: Raphael v. The Bank of England, 2b L.J. C. P. 33. As to when the affidavit of a juryman is inadmissible. «2n' *<*«'»o»»'. Wille8,484 : Barnes, 453 ; Wray v. Thorn, ib. 464 ; Parker v. Thornton, 1 mI' U* ^^- Raym. 1410 ; and sec Dovey v. Hobson, 6 Taunt. 460 ; Oee v. Swan, 9 M. & W. , "™i per Parke, B. I! '„' '■ X!^», 12 East, 231, n, ; and see Wray v. Thorn, Willes, 488. i< "^' 12 East, 229 ; see Dicker^on v. Blake, 7 Bro. P. C. 177 ; Torbock v. Lainy, 6 I ur. 318, fcfcll*! I? ' ' objection was taken before the verdict was recorded ; Earl of Falmouth v. *oi>«rt», 1 Dowl. N. S. 663 : 9 M. & W. 469. As to granting a new trial upon the ground that a P«raon who appeared on the jury was not on the panel, see Came v. Nicholl, 3 Dowl. 115 ; Hill • ft, 7 "^ *"'* *^ ^- fl^o6»<"»f «*W ««P. ' MW!/ V. Macauley, 14 Jur. 80 Q. B. The Court refused to receive affidavits from the jurymen that « L t'e*" 2 ""' influence the verdict : see WiUiamt v. The Great WuUm RofOway Company, I W«e v. Ktmorrt, 7 Jur. 202, Ex. ■^m 686 TRIALS OP QUESTIONS OF FACT, If the jury return a perverse verdict, the Court will grant a m trial, and, in general, without pajrment of costs.^ If the jury find a verdict contrary to evidence, the Court will, in general, grant a new trial,^ even in the case of a trial at bar;'| but not if the verdict was such as the justice of the case required;' and it was refused where the credibility of a witness was left tol the jury, and they found a verdict against his evidence : althoughl there was no evidence to impeach h*j credit.'' Where the eviJ dence is conflicting, a new trial will seldom be granted, unless thel evidence against the verdict very strongly preponderates.® In a| question, however, relating to real property, where the inheritance! would have been for ever bound by the verdict, the Court granted! a new trial : although the case had been left to the jury upon conl flicting evidence.^ In granting a new trial upon the ground thatl the verdict is against the evidence, the Court is, in a greati measure, guided by the opinion of the judge who tried the casej whether the verdict is satisfactory or not.^ For excessive damages, the Court will grant a new trial as ofl course, or set aside the execution of a writ of inquiry in all casesj where the damages may be ascertained by mere calculation ;' audi in other cases of actions ex contractu, if it appears clearly that the damages are excessive ;^" but a new ti:jal has been refused in anl action on a bill or note, where the jury found for no greateif amount than the bill or note, though it was alleged that less v^asj due ;^* and where the value on which the damages were calculatedj was assented to by both sides at the trial, the Court refused tol reduce the damages on the ground that the basis of the calculationj was erroneous.12 In actions ex delicto, such as action for trespass," 1 See Harriton v. Fane. 1 Sc. N. R. 287 ; Gibion v. Muskett, 3 Sc. N. R. 427 ; Mouldy. GriffitKt,i]\iti 1010, Ex. ; Parker v. Great Western Railway Company, 3 Railw. Ca. 17, C. P. I 2 Bright v. Eytwn, 1 Burr. 390 ; Miller v. Taylor, 4 Sc. 513 ; Levy t. Milne, 12 Moore, 418 ; Mmv 'I Cleatby, 1 M. & Sel. 676 ; see Glynn v. Houston, 2 Sc. N. R. 648. 3 Musgrave v. Ifevinson, 2 Ld. Raym. 1368. 4 Wilkinson v. Payne, 4 T. R. 468 ; Sampson v. AppUyard, 3 Wils. 273 ; Goslin v. Wikock,2ii.m Aylelt V. Lowe, 2 W. Bl. 1221 ; Foxcroft v. Devonshire, 2 Burr. 936 ; Denn v. Barnard, Cowp. »1 BoUm. V. Pritchard, 4 D. & L. 117, B. C. ; but see 3 B. & AM. 692. L 6 Lacey V. Forrester, Z Dowl. 688 ; but see the observations of Tenterden, C. J. & Bagley, J, i"| Davis V. Hardy, 6 B. & C. 231. ...» I 6 Ashley v. Ashley, 2 Str. 1142 ; Doe Mason v. Mason, 3 Wils. 63 ; Swain v. Hall, ib.; Anon., I a. -M see Norris v. Freeman, 3 tb. 38 ; Melin v. Taylor, 3 Bing. N. C. 109. d *' 1 7 Swinnerton v. Marquis ojf Stafford, 3 Taunt. 91 ; see ib. 232 ; Lee v. Shore, 2 D. & R. 198 : 1 o.S-\ 94 ; Hodgson v. Forster, 2 U. & R. 221 : 1 B. & C. 110 ; Lowdon v. Hierons, 2 Moore, 102. 8 See Lake v. Deer, 1 Jur. 983, Q. B. 9 See Day v. Edwards, 1 Taunt. 491 ; Sowerby v. Lockerhy, 1 Jur. 796, Q. B. 10 See Wood v. Hurd, 2 Bing. N. C. 166 ; Harrison v. Cage, Garth. 467. 11 Saiy V. PmoU, 1 H. & W. 2. 12 HUlon V. FowUr, 6 Dowl. 312. ^ ... ,, 18 Benton v. Frederick, 3 Burr. 1846 ; Dwker v. Wood, 1 T. R. 277 ; Merest v. Harvey, 6 Taunt. «- | Marsh. 139 ; Lockley v. Pye, 8 M. St W. 188. w AND ASSESSMENTS OF DAMAGES. 687 for diverting a watercourse,^ or the like, where tliere is no certain mftasure of damages,^ a new trial is seldom granted on this account : unless the damages were outrageous f or the Court is gatisfied that the jury acted under the influence of undue motives, or of gross error or misconception ;* and the same as to the exe- cution of writs of inquiry.^ A very clear case of excess must be made out ;• and it may be here mentioned that, for this purpose, iLc Court will not receive affidavits of the defendant's witnesses, to explain or add to evidence given by them at the trial.^ It is very usual, where an excessive verdict has been given, for the judge to suggest to the counsel to agree on a sum, to prevent the necessity of a new trial.^ A new trial will sometimes also be granted, or the execution of a writ of inquiry set aside, and a fresh inquiry granted, if it appears clear to the Court, that the damages are too small ;* or if the smallness of the damage has arisen from some mistake on the part either of the Court,^** or the jury," or from some unfair practice upon the part of the defendant.^^ Where, in an undefended action on a mortgage deed, a verdict was taken for the plaintiff by mis- take for the principal only, the Court refused to increase the images by adding the interest, but offered to grant a new trial.^* ^ But, as a general rule, the Court will not grant a new trial, in an ' ction for a tort, on account of the smallness of the damages.",. For the misconduct of the jury, also, the Court will, in general, [grant a new trial, if the misconduct be such as to satisfy the Court that the verdict has been determined on without that grave and serious deliberation, that right exercise of judgment, and that total absence of all partiality, so necessary to the proper execution 1 PfeydeW T. Earl of Dorchester, 7 T. R, 529 : 1 Chit. Rep. 729, n. (a). J bM Bennett v. AUcott, 2 T. R. 166 ; Day v. HoUoway, 1 Jur. 794, Q. B. a ^•*'""^«. 7 Bing. 316 : 6 M. & P. 125 ; Sharp v. Brice, 2 W. B. 942 ; Leiih v. Pope, t6. 1327 : n^ o. • ^"'■'o/ Dorchester, 7 T. R. 529 ; Bruce v. Rawlins, 3 Wils. 61 ; WiUiamt v. Ounie, i ' 1 ™ r" ^ • *""«» V. SoiUk Wales Railway Company, 27 L. J. Ex. 366. I tta«*er» V. Caulfield, 6 East, 244 ; EdgeU v. Francis, 1 Sc. N. R. 118 ; Creed v. Fisher, 18 Jur. 228, SfleniOTiT. Frederick, and Bruce v. Rawliiu, ubi sup.; Irwin v. Dearman, 11 East, 23. 6 ^tWwry V. Broton, 10 Moore, 106. T«i«jpiv.ffayi«W,8Dowl. 882. ,„'• I Y^ A'aerson, J., 7 Bing. 320 ; see Leeson v. Smith, 4 N. & M. 301. »!^*J-£r*K' i Q- ^- 8" ■ 7 Jur. N. S. 671 ; WiUon v. Hicks, 26 L. J. Ex. 242 ; IfxchoU v. ,. „*??"»«*> 28 L. I. Ex. 4. 1 ir"'^"5 ^- **'*w«•• 426 ; Levy v. BailUe, 7 Bing. 349 : 6 M. & P. 208. J Ir *■ ' "^*««l>to»». 2 Salk. 647 ; see Hall v. Stone, 1 Str. 615. U mtr V. Brown, 2 M. & W. 199 : 6 Dow). 313. sSSH^li ^"^*' 1 C. B. 444 i QibbB v. TurmaUy, ib. 640 : Mauricet ▼. Brecknock, 2 Doug. 609 • R^durds V. Hose, Ex. 218 i 23 L. J. Ex. 8 : Apps v. Day, H « 112. ^ ;t-. 4A '3 ' ( 688 TRIALS OF QUB8T10W8 OP FACT, i of the important duties of jurymen. Thus, if the jurors eat or (Irink, after the summing up, at the expense of the party for whom they afterwards find a verdict ; or if they determine their verdict by lots ; or if they or any of them have previously declared that the plaintiff should never have a verdict ;^ or the like : the Court may set aside the verdict, and grant a new trial.' Where two of I the jury, during the progress of a trial, which lasted two days, dined and slept at the house of the defendant on the eveniiig of | the first day, and, consequently before the summing up, the Court held that it was discretionary whether the verdict should be set aside and a new trial granted ; and as the party making the appli- cation did not entertain any belief that the jurors, in giving their verdict, wore influenced by their visits, and there were no grounds for suspicion of unfairness, the Court refused to do so.^ The Court will not receive afiSdavits made by any of the jurymen,* or affidavits of what any of the jurors have said, respecting such misconduct :^ it must be proved in some other way ;^ and this is the case, though the misconduct is, in some degree, confirmed aliunde ;' though it seems that where, in moving for a new trial, affidavits imputing personal misconduct to a jury are used, affida- vits of any of the jury, rebutting such imputation, may be used in answer.* If the cause be tried in the order in which it is inserted in the cause list, in the absence of the opposite party,* or his counsel, the Court will not grant a new trial, unless under very special cir- cumstances ; and then, as a general rule, only on an affidavit of merits, and on payment of costs. ^** 1 Dent y. Hundred of Hertford, 2 Sall<. '"'4 , : 2 Comyn, 601 ; see Gaimjord v. Blackford, 6 Pri. 36. 2 See Hughes \. Budd, 8 Do'*l. 3/5; Cooksey v. Haynes, 27 L. J. Ex. 371. For a aw where all the jury were not prtsi.-nt ivhen the verdict was given, see Rex v. H^(w/«", 2 Stark. Ill ; 6 M. & S. 366. 3 Mortis V. Vivian, 10 M & W. 137 : -a Dowl. N. S. 335 ; see R. v. Kinnear, 3 B. & A. 468 ; i Chit. Rep. 401. 4 Harvey v. Hewitt, S Dowl. 598 : Roberts \. Hughes, 7 M. & W. 300; Vaise v. Delaval, i T. R. II ; Onions v Naish, 7 Pri. 203 ; Hartwright v. Badham, 11 Pri. 383 ; R. v. ffW&r, 6 M. 4 S. 366 ; Bridgivoodw. Wynn, i H. & W. 574 ; Baih v. Macauley, 14 lu 80, Q. B. 5 Harvey v. Heivitt, ubi sup. ; Strakery. Graham, 7 Dowl. 223 ; 4 M & W. 721 ; Burgess y. Lmi- ley, 6 Sc N. R. 518 ; i D. & L. 21 ; la L. J. N. S. C. P. 257 ; Addison v. IVilliamson, 5 Jur. 466, Ex. ; Davis v. Taylor, 2 Chit. Rep. 268. 6 See Haf vey v. Hewitt, ubi sup. ; where affidavits where made by persons who witnessed the jury drawing lots for their verdict. 7 Owen v.- H^harbuton, i B. & P. N. R. 326 ; see Uindlc v Birch, 8 Taunt. 26 : i Moore, .155. 8 Standewicke v. IVatiins, a D. & L. 503 ; see Taylor v. Webb, Trials per Pais, 24. 9 See Cook v. Bcardsall, 29 L J. Ex. 35, where the defendant intended to conduct his own cause in person, and there were two Courts sitting. 10 Seey4>tt>«., 2 Salk. 645 ; Thirds. Goodier, i Pri. R. 717, Ex.; Bland v. Warren, 7 A * E; '3'' Watson, V. Reeve, 5 Bing. N. C. 112 : 7 Dowl. 127 ; Breach v. Casterton, 7 Bing. 224 ; 4 M. s. r. 867 ; Masters v. Barnwell, ib. n. ; Gavilt v. Ciawley, 8 Bing. 144 ; i M. & Sc. 229 ; R. v. Rtckm- son 8 Dowl. 311 ; Nash v. Swinburn, 4 Sc. N. R. 326 ; 3 M. & g. 650 ; i Dowl. N. S. 190, where tlie defendant's attomey|s clerk misread the notice of trial ; Curtis v. March, 4 Jur. N. S. m'l Ex., where the clocks differed. AND ASSESSMENT OF DAMAGES. 689 H the party for whom a verdict is afterwards given, deliver to ' jnry, after they have left the box, evidence which has not been bown to the Court.^ or if he has used improper influence with be jury, to induce them to give a verdict in his favour, a new trial I be granted. Where handbills reflecting on the plaintiff 's char- er were distributed in Court, and shown to the jury on the day the trial, a verdict agaij^st him was set aside, and a new trial nted, although the defendant, by his affidavit, denied all know- je of the handbills.' But merely desiring a juror to attend at I trial of the cause is no ground for a new trial.^ ■A u Where, by a fraudulent trick upon the part of the defendant, be plaintiff's counsel were taken by surprise, and the defendant bereby ohtained a verdict, the Court granted a new trial.* Where [plftintiff was non-suited, in consequence of a refusal by the de- dant's counsel at the trial to admit certain documents in lidence, which had been agreed to be admitted by the defendant's ley's agent, the Court granted a new trial, with costs to be by the defendant.* i; ,,•■ •.l,V IV 'the A new trial has been granted on account of the non-attendance a material witness ; and the Court in one case granted it with- costs, where a material witness for the defendarit was kept out way by the contrivance of the plaintiff, to pre7ent him from g served with a subpoena ; but, in a later case, where a witness plaintiff was kept out of the way by the contrivance of the fendant, the Court refused a new trial : observing, that the tiff ought to have applied for a postponement of the trial, or ihdrawn the record.* And the general rule is, that a new trial not be granted, on the ground that evidence has not been en that might have been given at the trial ;'^ and the Court will on motion for a new trial, hear affidavits of any facts which it have been brought forward at Nisi Prius.^ The plaintiff !VJ -.li •/, A X .}(,' :■:'!! U : <■ U«te. jCMter V. Mere$t, 3 B. & B. 272 : 7 Moore, 87 ; and see Spencer v. DeWUlott, 3 Smith, 321. |2>««T. KmftwW, IStr. 648. IHH.E. 1814; see ilnderaonv. George, 1 Burr. 362; Edie v. East India Company, 1 W. Bl. 298 ; I Sf M '■ ^'^*'*V. 5 Taunt. 277 ; Lemane t. Mealin, 11 Jur. 168, B. C. ; and see Long t. Bilke, [ n ..^' ^- 176. where the effect of a judnnent produced in evidence was n'isrepresented. JmJHwW T. ilM, 6 Dowl 420. f iwjMand V. Datuon, 1 C. M. * R. 709 ; and see Edteards v. Dignwn, i Dowl. 642 ; Paekham ▼ L »*«*w«n, 3 » 166 ; Henning t. Samiul, 2 Dowl. 766 : 3 M. & So. 818 [C»t» ». Berry, 1 Wils. 98 ; and see 1 C. M. & R. 710, n. ; Macbeath v. EllU, 4 Bing. 578. 20 X5 ill I n m\ «90 TRIALS OF QUESTIONS OF FACT, ought, if unprepared with his evidence; cither to make application to put off the trial before the jury are sworn, or should withdrai his record, and not take the chance of a verdict.* . ,, , The Court has granted a new trial where it appeared clearlJ that the plaintiff's case was a mere fiction supported by perjnryj which the defendant could not, at the time of the trial, be prepaiei to answer.* It will, however, not in general be satisfied with thj mere afl&davit of the party making the application, contradicting the witnesses on the other side:' the witnesses must in general! indicted and convicted ;* or some other satisfactory proof of th^ perjury must be offered to the Court. Even where the witness were indicted, the Court refused to stay execution until the indictj ment should be tried .^ Where a witness made a mistake in his evidence, by reason which a verdict was given against the party who called him, thJ Court refused a new trial : although the mistake was explained bj the affidavit of the witness himself ;^ but, under similar circn stances, the Court of Common Pleas granted a new trial.' When a defendant insisted that he was surprised by a misstatemen made by one of the plaintiff's witnesses, the Court refused a nei{ trial : the micct<).tement having been made in answer to a qaestio that was collateral and beside the issue.' In some cases, where a party is taken by surprise, at the tria the Court will grant a new trial.^ Thus, it will be granted, : by a fraudulent trick upon the part of the defendant, the plaintiffj counsel was taken by surprise, and the defendant thereby obtainef a verdict.^* But the Court never grants a new trial upon ti ground of surprise, unless satisfied that the verdict was substaa tially wrbng ;" and it was refused where, by reason of the defeij 1 Harriton t. Harriion, 9 Pri. 80 ; Edwardi v. Dignunh «6» ««P- .* Bm$iit v. WUdnan, 8 : 286 ; 2 Moore, 179 ; see Hoare v. SUverlock, 19 L J. C. P. 215. a Fabrilius ▼. Cock, 3 Burr. 1771 . If the plaintiff has sworn falsely on a matter not mtttriu I merits of the cause, a new trial will not De gpranted : Uoneyman ▼. Letoit, 23 L. J. ^J>' 8 Feize v Parkinton, 4 Taunt. 640 ; see Aliken v. HoteeU, 1 N. & M. 101 ; Spragw J. J(«< Chitt. 271 ; but see Liiiter v. Mundell, 1 B & P. 427 , , 4 Beerfield r. Petrie, 2Tidd. 93.,; Seeley v. Maheto, 4 Bing. 661 ; Hampthire v. Harrit, I Jar.' 6 Chitty's Aroh. 601 ; Wanoick v. Bruce, 4 M. & S. 140 ; see ThurUtt t. Beaumont, 1 Bii«. Ml Moore, 612. 6 HuUh V. Sheldon, Say. 27. 7 Richardton v. Figher, 7 Moore, 646 : 1 Bing. 146 8 Magnay y. Knight, 2 So. N. R. 71 : 1 M. ft O. 044. „ „ See Todd v. Emby, 2 Dowl. N. S. 670 : Belle v. Thompion, 8 Chitt. 104 ; HarrUm » Barrt* Pri 89 ; Long t. BUke, 1 8c. N. R. 176. 10 AnU, p. 1026- 11 Tharpe v. Stitttwood, 6 Sc. N. R; 780 ; 1 D. ft L. 84, per Coltman, J. ^T AND ASSESSIIENTS OF DAMAGES. 691 dtntB having msafficiently disclosed their case to their attomies, the latter were taken by surprise, and unprepared to prove a cer- tain document at the trial, and a verdict was given for the plaintiff.^ So a party nonsuitei* for nonproduction of a document from a public office, is not entitled to a new trial on the ground of surprise vbere he has served the clerk in the office with a suhpana duces Uem to produce the document, but has omitted to apply to the bead of the office for permission for its production.' And where, at the trial, the defendant produced a deed which he had had notice to produce, and there being an attesting witness to it who was not called, the plaintiff was nonsuited, it was held, that the plaintiff was not entitled to a new trial on the ground of surprise, tboagh he was not aware, before the trial, that there was an attest- ing witness : it not appearing that he had made any inquiry upon tbefluhject.' A new trial will seldom be granted, where a verdict has been given against a party, or a plaintiff has been nonsuited for want of evidence which might have been produced at the trial : because it would tend to introduce perjury ;* even although the evidence iras briefed, and his counsel thought fit not to produce it 'J^ unless the verdict is manifestly against the justice and equity of the ease.* Bat if new evidence, discovered after the trial, is such as to satisfy the Court that, if the party had had it at the trial, he most have had a verdict, the Court will grant a new trial upon payment of costs, in order to do justice between the parties.^ The discovery of witnesses, who can contradict those produced on the former trial, seems to be no ground for a new trial.^ A cause having been stopped while a witness was under exami- joation, and the plaintiff nonsuited, upon a statement by his coun- lelof the facts he was prepared to prove, the Court granted a new trial on payment of costs, upon an affidavit that the witnesses could have proved a more complete case than that presented by the UM. a v" •- I 237. Salk. 861 ; see Wit$ t. PolehampUm, 2 Salk. M7. 2Chltt. 267. Km. M» -*■»■«*««, 2 W. BL 9W ; Weak t. CcMouay, 7 Pit 677 ; TliurUU v. Beaummt^ 1 I ftSl^V- ***«• y Bro P. 0. ed. Toml. 177. » «»»r T. Itwi^p, e So. N. P. 707 s 1 D. * L. 7». 692 TRIALS OF QUESTIONS OF FACT, The Court will not, as a general rule, grant a new trial, to let the party into a defence of which he was apprised at the first trial.* If a party is entitled to a new trial, ex debito justitia, upon one of several issues, the Court cannot confine the new trial to such issue only, but must grant it as to all of them.^ Therefore, if the judge at the trial allows evidence, which is inadmissible, to be | given upon one of several issues,' or, if he, in his direction to the jury, mistakes the law,* or, it seems, makes any other mistake, | for which he might have been required to seal a bill of exceptione, a new trial can only be granted upon all the issues.*^ But if the granting of the new trial upon one of several issues is a matter in the discretion of the Court, as if the verdict upon such issue be against evidence or the like, it may be granted upon sueh issue { only.* A jury having assessed damages upon an erroneous prin- ciple, the Court, in granting a new trial, refused to limit the I inquiry to the question of damages.^ Where, in trespass, there were several issues, one of them on a plea of liherum tenementmA * and the judge at the trial improperly rejected evidence applicable to that issue only, the Court discharged a rule for a new trial, after a verdict for the defendant on several issues, on his consent- ing to the verdict being entered for the plaintiff on that issue, and gave no costs of the rule to either party.® Where there were two issues, and the jury found upon both, but the judge improperly discharged the jury upon the second issue, the Court held that I the proper course was to apply to the judge to have the verdictj corrected according to his notes.® ' <• ' • o: •''. . If the jury, at the second trial, finds for the party against whom I . the former verdict was given, the Court, if the case is doubtful, orl the second verdict does not accord with the justice of the case,! may be induced, under circumstances, to grant a third trial. It isj entirely in the discretion of the Court, however, to do so or not:! « 1 Vernon v. Hunkey, 2 T. R. 113 : see Buxton v. Mardin, 1 T. R. 84 : RUchie v. Bomfield, 7 Tiuiill 809 ; Pickering v. Dawson, 4 Taunt. 779 ; Bodington v. Harris, I Bing. 187. „ f 2 Earl of MaceU^ld v. Bradley, 7 M. & W. 570 ; 9 Dowl. 813 : Uutehinton v. Piper, iwuw. w^ 3 BemoKoni v. Farebrother, Sa.tt Ad. 873. i Hutchinion t. Piper, 4 Taunt. 666. 5 Bemaieoni v. Parebrother, ubi tup. _ ,, » d tM K i 6 Earl of Maeeleifeld v. Bradley, and Hwehinson ?. Piper, uM «up. ; but wee Bull. «. r. w>, "• and see, as to a venire de novo, Davie r. Lovmdu, 4 Enng. N. C. 478. | 7 Mahoney t Frati, 1 C. & M. 326. 8 Hughet t. Hughet. 16 M. ft W. 701 ; see Ba^cter v. Swte, 6 H. ft O. 9S6. 9 lU* T. T^mer, 8 Do«i. 211. AND ASSESSMENTS OF DAMAGES. 6ft8 for the losing party in such a case is not entitled to it by any rule or practice of the Court; it has accordingly been refused, where the second verdict was satisfactory.^ It is also in the discretion of the Court to grant a third trial after two concurrmg verdicts ;* but this is seldom done ;^ and the Court has refused to grant it, ftfter a new trial for excessive damages, and the same damages fflven by the second verdict.* And so, also, where the two con- Gnrring verdicts were for the defendant : although the judge, before whom the second trial was had, expressed himself dis- uMed with the verdict.^ But where, in such a case, the action was brought for a matter savouring of the realty, and the plaintiff ffoald have been concluded by the verdict, the Court, under circnm- fitances, set aside the last verdict, and ordered a nonsuit to be ffiitered : leaving the plaintiff to contest the matter a third time, if he would.* The 9.pplication for a new trial must be made to the Court of Chancery, whether the trial was had before that Court, or a Court of Common Law.^ .... ' 1 . ' ' .It ■•■ The application for a new trial must, in all cases, be made before the cause comes on for further hearing.^ It is made by motion, ftf which notice niust be given/ ' / ■i..)j Where the trial has been had before a Court of Commtpn Law, no positive time is fixed within which the application must be made. In Lugard v. Daly^ however,' Lord Hardwicke stated, as a reason which weighed greatly with him, in refusing an application for a new trial, the length of time {viz., five years and a haif ) wbich hA elapsed since the trial, which he said would be an objection even in Courts of Law; and he observed that, although it had^ot j been set down till lately upon the equity reserved, it could not be wid that the other side should not have applied for a new trial: I for perhaps the defendant might have no reason to set it down. 1 JJirlir T. An-U, S W. Bl. 068. ! S?S!* »• «**<»», * Burr. 2101 ; Oibton v. Mvlutt, 8 So. N. R. 427. I m f •»**'■ ^- *««'«. 8 Bing. N. 0. 892. T gM* ▼. ffdaU, 9 Salk. 649 ; Ohamben J. Robimon, S Btr. 692. * MmtrtM V. JTsr^utf qf Staford, 8 Taunt. 232. • fcl Short, iD. * B. 198 ; Tb. * C. 94. 1 j^ ▼. CAodd 2 Dlok. 676 ; Bootle v. BlundsU, 19 Vm. 600. VmS^/^***"- ^ofUgom$ry, t Atk. 878 ; Rodatn r. KoumU, 6 H»i», 8W ; ud n* /Aiwton 1 1 1'Jf^J ^''- SM, M to iMUrttM to bt iMWd on th* moUon. • ' »•!. D, 19J, 194. 'I 694 TRIALS OF QUESTIONS OF FACT, Upon the application for a new trial, the judge's rotes taken at the trial are the proper evidence of what was then proved ;^ and where the application is made for the new trial of an issue directed to a Court of Common Law, an ex parte application should be made to the Court of Chancery to send to the judge who tried the issue for his notes of the trial.^ This application is not of course, but must be supported by a statement showing a reasonable ground for questioning the verdict.^ If the parties agree thereto, the Court will allow copies of the judge's notes taken at the trial to be made for the parties.^ The evidence given in the suit may be referred to by either party on the application for the new trial, although it was not actually made use of at the trial.^ And any facts upon which the application is founded that cannot be col- lected from the judge's notes may be proved by affidavit ;' and so at Law, where the new trial is moved for on the ground of the I improper rejection or reception of evidence, or for misdirection, or on account of the verdict being against the evidence, no affidavit { is necessary ; but where the ground of the motion cannot be col- lected from the judge's notes, an aiUdavit is necessary f and, as 1 1 general rule, affidavits of witncc-t.c;:;' Upon an application for a new trial, the costs of the previonsl trial will, in general, be reserved until the further hearing ;^* the! Court has, however, under the circumstances of the case, frel 1 Bee Ord. 6 Feb. 1881, r. 1«. In Ohuioerjr, it U » common praettce for tlie partiee to tgm thiti of the evidence shall be taken by a ihorthand writer Inatead of the Judge. 5 Otaltt/s Arch. 896. , i i« 8 Jforrtf ▼. Daviu, 8 Ruu. S18. See also Memorandum, 6 Mad. 68 : Bwngtxfori t. Jagtt, i '" * Ut 601. 4 Hargrave v. Hargrave, 10 Jur. 967, M. R. 6 SUmty t. Wade, 7 Sim. 695, 618. „„ ..... 6 See Bait India Company ▼. Bazett, Jao. 91 ; Oibbt v. Hooper, 2 M. & K. 863 ; Wilton t *«•« U Sim. S8 ; Hargrave v. Hargrave, 18 Jur. 463, M. R. ; Shield! r. BowAer, 1 D«J*;* ": ** M'Oregor r. Topham, 8 Hare, 488, 496. Ai to the allowance of copies for eounwl o( w w hand writer's notes of the erldenoe on the trial, see MaKm v. Priee, 1 Phil. 690 : 9 Jur. SH. 7 Chlttys Arch. 1684. . » , «• c M 8 Phmlpt T. Hatfield, 10 L. J. N. S. Ex. 88 ; 8 DowL 888 ; Bdger v. Enavp, 7 Jw. H>>,V^I 9 Kr.Orunt, 8 N. & M. 100 ; and see Ot6&« T. Pike,lDom\. N.8.409;9H:& W. ttl:"*'^ 6. Feb. 1801, r. 14. 10 CUet T. BuUman, 13 Jur. 686, C. P. 11 O'Contior y. Maione, 9 CI. & F, Swanit. 848 ; Dunean t. Var 417, 481 ; Beames on Ooets, if. 678, '698 ; and see Bearbloek r. Tyler, Jao. m : W***?* '•£*!?'« 'arty, 8Phll.«96; OorporatK > /BoektiUrY. Lit, t Ds0.ll.e» 1, 167 : Morgan & DaTvy, 70. If AND ASSESSMENTS OF DAMAGES. 695 [tly imposed on the applicant the condition of paying the costs of the previous trial. ^ Where a new trial was directed on those terms, and the applicants did not proceed to a new trial, it was held that they were not compellable to pay such costs under the The following are such of the rules as to costs, on which the Courtfl of Common Law act in granting new trials, as would appear to be applicable, in granting new trials in Chancery. A new trial will be granted without costs, where it is a matter of right hy reason of the misdirection or other mistake of the judge, orthelike.^ Where the new trial is granted for the misconduct of the jury, as where the verdict is perverse, or the like, the costs areasually directed to abide the event of the second trial.* If a party has obtained a verdict by trick, the Court will grant a new tri*l without costs, or perhaps, in a very gross case, will oblige him, and sometimes his attorney, to pay the costs.^ Where the plaintiff had a material witness for the defendant concealed in his house, and prevented him from being served with a svhpoena, it was granted without costs.^ If granted on the ground of surprise not fraudulent, it seems to be on payment of costs.' Where a . new trial is granted on the ground that the verdict is against evi- dence, the costs of the first trial abide the event, unless the Court otherwise orders.^ Where the costs are ordered to abide the event of the second trial, if the same party succeed on both trials ^ he will be allowed the costs of the first as well as the second ;* but, otherwise, the costs of the first will not be allowed." Where a rule for a new trial has been obtained on payment of costs, there is a broad distinction between these costs and costs in 1 Ahuit. Jliomat, 8 Vera. 76 ; Baker ▼. Hart, 3 Atk. 642 ; CUew v. Gateaigne, Amb. 8S8, 824 ; SwmUn r. ^tMrdf, Beamea on Costa, App. No. 16 ; and see Earl Darlington t. Bowu, I Wen.ro. i UMifrt T. naur, 7 Sim. 526, 627 : and see Houmrth v. Samuel, 1 B. & Aid. 500 : JoU^fe v. Jfundy, 8L. J. Ei, 100; 7 Dowl. 286 : 4 M. & W. 602. I ( M« T. Bayle Cowp. 897 : Harris v. Butterley, 2 tb. 485 ; Jaekton v. Duehaire, 3 T. R. 663 ; Oood- rvlit T. Saul, 4 tb. 869 ; see Dm OObert v. Rou, 7 M. & W. 102 ; Edwardt v. Soott, 2 Sc. N. R. 2B8 ; Lord t. WardU. 8 Bing. N. S. 680 : Earl of Maeeletfield r. Bradley, 7 M. & W. 670. i HaUr Cove, 1 Str. 642 ; Hodgton r. Banii, 8 Chit. 268 ; SkUlUoe v. Claridge, «. 486 ; tee Brown 'Clarke, 12 M. W. 26 ; 7 Jur. 1048, Ex. I iMtrton T. Oeorge, 1 Burr. 862 ; Trubody v. Brain, 9 Pri. 76 ; see Hullock, 891. « BuU. N. P. 828 ; bee TurotMind V. Daufon, 1 C. M. ft R. 709. I CNrtwod V. Sim, 8 Olilt, 260. a 17k 18 ^c. 0. 186, 1. 44 : see Meule t. Ooddard, 5 a ft A. 766 ; EvOni v. Eobinion, 84 L. J. Ex. . <>f As to the meaning of " abide the eyent,** see Chitty's Arch. 1530. » Tr'tmey v. Thoma$, 1 H. BI. 641 ; Canham t. PUk, 2 C. ft J. 126 ; *. 168, a : Skerloek t. iM i'H"''*' ^ B^' SI : bat see Hudion r. Mqjoribanki, 8 Moore. 440 : 1 Bing. 398. V» iytoii T. Oibbi, 8 T. B. 619 ; Chapman r. Partridge, 2 B. ft P. N. R. 882 ; Bird r. Appleton, 1 EUt, 111 ; Doid y. Jteal 2 C. ft M. 226 ; Evam v. Robinson, uM sup. c;, t Im. «96 TRULS OP QUESTIONS OF FACT, iJB*"" the cause. The former costs do not include the costs of the j ings, dr of obtaining admission of documents, or of giving notie to produce, or of the briefs : in some cases, however, somet may be allowed for amending the briefs.^ Where there have two trials, and the successful party is entitled to the costs of thJ sBcond trial only, the Master, in taxing costs, may allow fees onthj second trial with reference to those given at the first.^ Where party who succeeded on the recond trial was not entitled to thel costs of the first trial, it was held, that the Master was right inl allowing the successful party all such costs of the first trial as we available for the second f and, therefore, that he was right inl allowing the costs of the briefs, aubpcenasy and copies on the fintl trial, but not the fees on the briefs, or the consultation fees, or i ccf'^ " serving the auhpoBnas for the first trial. Ab Oommon Law. unless the new trial is a matter of right, as inl tho '^ase of a misduection of the judge,* it may be directed upon! terms: acL ..6, that witnesses infirm, or going beyond sea, mayl be examined upon interrogatories, or that their evidence may be| read from the judge's notes of the first trial f that certain docu- ments may be produced at the trial ; that certain facts, not inten- ded to be litigated, may be admitted f or that the party may makej discovery of certain facts upon oath. The costs of the application for a new trial will, in general, be I t directed to follow the costs of the new trial.' If the application is refused, the costs are not costs in the cause, and cannot be] recovered by the successful party : unless the motion is expressi ,to be dismissed with costs.« ^^^ ^, ^^.,^ ^n ^ .or ^nirr ^ mw The form of an issue cannot be changed upon a motion for a new I trial. If the party is desirous to question the form of the issue, he must do so by presenting a petition for a reheajring of the decree or order directing it.^ Where a new trial is directed, it is not nsnal | 1 Lord T. Wardle, 8 Dowl. 174. 2 WilkiTuon ▼. Malin, 2 Dowl. 66 ; Lord t. Wardle, vbi tup. 8 Lambert v. Lyddon, 4 D & L. 400. 4 See Hawtayne v. Bourne, 8 M. & W. 266, n. ; Earl Harhorough ▼. Shardtow, ib. ; JTMOMifT. Frasi, 1 C. ft M. 326 ; 1 Dowl. 70 : DeBemardy v. Harding, 28 L. J. Ex. 840. 6 Anon., 2 Chit. 426 ; DoeGUbert v. iioM, 7M. ft W. 102 ; Anon., 7 Jur. 1088; 1 D. ft L. TiS. 6 See ITivHiUes t. Sainsbury, 7 Bing. 487. ^ ^ ,,, 7 Duncan v. Vartv, 2 Phil. 696, 700 ; and see White v. Litie, 3 Swuist. 866 ; Beuues on Cotti, Uh n. ; Looke t. C ;..:un, 2 M. ft C. 43, 48. 8 White T. LitU, 4 Mad. 214 : 226 ; and see Devie y. Lord BromUow, i Dick. 796. , _ , 9 White ▼. LUU, 8 Swonst. 861, n. (a) : 1 C. P. Coop t OoU. 861 ; ae* alw Legard t. Zta^r, 1 To. a. 19> ; and poit, Rehearings and Appealt. AND ASSESSMENTS OF DAHAQE8. m or necessary fonually to set aside the previous verdict : as no soii)- eeqaent proceedings can be based upon it ; and it should not be given in evidence at the subsequent trial.^ .> ^^ ;^ , i^iiavi^v.r' K Orders granting or refusing applications for new trials of issues niaj be reheard,' and appealed from,' like other orders; and where the trial has been had by a jury before the Court itself, there is the same right of appeal from any order made by the Court, on an application for a new trial, as from any other order of the Court ; and it is presumed that where the trial has taken place before the Court without a jury, an appeal will lie £rom an order of the judge before whom the trial was had, granting or refusing the motion for a new trial. :(-.!! Ul-.' ■r.-i-Uv.i s'-n bli Section llL-^Fwrther Hearing after the Trial. If the order for the trial of a question of fact has been made before the hearing, the cause must be brought to a hearing in the usual way ; and the verdict upon the trial will form part of the evidence; but if the trial or assessment of damages has been directed at the hearing, the cause must be set down for Airther hearing. r <■',.. m •Jil! i The cause may be set down as soon as the trial has taken placed The Court will not stay the further hearing of the eause because 4n appeal from an (»*der refusing a new trial is pending.^ ,.,^^ , , The decree of the Court at the further hearing^ is usually in accordance with the finding of the Court or jury upon the question of fact; or, if there have been more trials than one, with the last finding. The Court, however, will, even then, if it thinks that the question of fact has not been satisfactorily determined at the trial, 1 O'Connor v. MaUme, 6 CI. & F. 672, overruling Balur r. Hart, 8 Atk. 641 For form of Qr4er, n* Btton, 990. \ no* T. £Mt, 8 Swuut MS. 8 WOrtgor t. Topham. 4 H»r«, 162 ; 8 H. U C». 188. Sl^7-*2^.«H«*,8i8. • I'fiir tBtoM «i w^nSTMe sSoi?,' m' ■# ..*'): *;1 i 4 M 9ts,ws.«ia 698 TRIALS OF QUESTIONS OP FACT, vs4 direct a new trial or new issaue, in such form as may suit the juBtice of the case ;^ or give a decision contrary to the verdict. Thus, in Armstrong v. ArTnstrong,^ Sir John Leach, M. R., without directing a new issue, decided at once against the parties in whose favour the verdict was found, And his Honor's decision was supported, upon appeal, by Lord Brougham : but it is right to observe that, in that case, the issues appear to have been so framed that the verdict threw very little light upon the question which it was important to decide, and the whole matter was before the Court with sufficient precision to enable it to come to a decision without another reference to a jury. Where also, in a suit for specific performance, the agreement found by the jury was of such a nature that the Court would not enforce it, the bill was dismissed.' If, after a question of fact has been directed to be tried, the cause is brought on for further hearing, and it appears that the parties have not gone to trial, the Court, if it is dissatisfied with the grounds upon which the trial was not sufiered to take place, will still direct it to be tried. Thus, where an issue was directed to tiy the validity of a debt claimed against a testator's estate, and,atthetrial of the issue, the executor entered into a compromise with the debtor, subject to the opinion of the Court : upon the case coming on again for hearing. Sir William Qrant, M. R., being of opinion that the compromise was improper, directed the parties to proceed I to try the issue : the executor paying all the costs of the former | proceedings at Law.^ The costs of an issue are in the discretion of the Court,^ and do I not follow the verdict as a matter of course. In general, they willj only be disposed of at the further hearing of the cause.' If, how-j ever, the issue has been directed on an interlocutory applicatioD| they may be disposed of previously.' "- " ' " ,: '"y ^T But although the costs of an issue, directed by the Court, are saidl to be discretionary, the general rule of the Court in awarding themj 1 See BIa«ft6um t. Oregton, 1 Bro. C. C. 420, 488, 4S4. f S M. & K. 46, 62, 68. 5 Morriton y. Barrov, 1 De O. F & J. 6SS. 4 Legk v. HolUnoay, 8 Vea. 218. „ „ , 6 See Seton, 978 : Corporation of RoehMUr v. Let, 2 De O. M . & O. 427, 481 ; Staety r. ^nm, < DeQ. 4i J. 199: 6 Jur. N. S. 608. atcukUn V. Xdteardi, 1 Yes. J. 138, 186 : Boy$» v. CoMough, 1 K. ft J. 124, 144. 7 Duncan ▼. Varty, 2 FhU. 606, oTemiling Malku r. Priet, i CoU. 190 ; 9 Jur. 660 : Rig^y ▼ WuUm Railway Company, 14 Jur. nO, 712, V. 0. W. AND ASSESSMENTS OF DAMAGES. 699 is that they follow the event, and are given to the successful party'" '^^ ™^®' however, is liable to exceptions; thus, in the eaaeof a bill to establish a will against an heir at law, he has a riffht to be satisfied how he is disinherited ; and if an issue is directed to try the will, he will have his costs, although the will is establish, ed: unless there are any special circumstances in the case which I will induce the Court to refuse them.^ The most usual case for ising an heir at law his costs of an issue, is where he sets up insanity and fails to prove it : in such cases, the heir is not considered entitled to his costs of the issue f he has however been allowed them even in such a case.* In some cases, the Court has gone the length I (^compelling an heir to pay the costs of an issue, but it must be a I very strong case to induce the Court to do so ; such as misconduct,^ I spoliation or secreting of a will,' or where he vexatiously con- I tests the will, by setting up a case of insanity, knowing that the I devisor was perfectly sane.'^ The Cour".; will, however, on the ground I of vexation, decree the costs of an issue against an heir who fails, where he himself has filed the bill to set aside the will for insanity, instead of proceeding by ejectment f and it seems that, even where Ithe heir could not have proceeded by ejectment, in consequence of ^ I outstanding terms, and the Court, for that reason, dismisses Ithe bill without costs, it still will order him to pay the costs of the Me.' t.)J;; !" )'.i'.-! .'iU Where a new trial baa been directed in consequence of the I misdirection of the Judge,%r the miscarriage of the juiy,^^no order I fill in general be made as to the costs of the previous trial. ; ^«.'. ' -'4 i| *;ii»:;fa'- 1 Beimcs on Corti, 187 ; Horgui & Dttyey, SS. t Bmty T. Eyre, 8 Atk. 887 : Wright t. Wright, 5 Sim. 449 ; see alio, Wehb t. Claverden, t Atk. 4tt : Crew r. JolHff, Prec. in Oh. 88 : Wuton \. Meteal/, 8 Had. 46 : Grove v. Toung, S Oe O & 8. tS, 40; Staeey t. SpreOUy, 4 De O. Jc J. 109 ; 6 Jur. N. S. 608. I WU T. WUtm, 18 Vm. 87, 92 : Smith t. Dtarmer, 8 T. 8e J. 278. 4 Jtotirte T. Kenlake, 1 K. & J. 761. iMidOtUmy. MiddUton, 6 De O. ft S. 666. ( . „; ,. ,l8ifii«»v. i^r»,3Atk.887. '''^^" "' ' T White V. rOfon, ubi lup. I WObj. Cleverden, vbi tup. ; Seaife v. Seaife, 4 Run. 809 ; Smnfen v. Strinfen, 27 Bmt. 141. I man T. Wright, 2 R. * H. 1, 82. I UlMrNoeftT. Tayhr, Jac. 671 : WkUe v. IMt, 9 Swanst. 842, 848; Corporation qf Boeht$t«rr. „ £M,SDeQ.l{.*0.427.481. U Anmm T FdM^, 8 PhlL 696, 700. io . ru;. aA(>>. A- 1 ■4.. .r.f. .srre fOO rROCUfiDtlfOg UNDER DBOSSBS FOR A PARTITION. . , .. r ^. , .,: . ,,,, ..V,.,.; ,f.,,., ■ 1 — , . .' r... ■ I V J,,.. 'P '.V CHAPTER XXIII. ;i t..» •I .V, PROCESDINQS UNDER DEGREES FOR A PARTITION, TO SETTLE BOUN. I V " Bear. 673. For forms of decrees for a partition at the hearing, and in Chambers, see SetoD, wi. 673. 4 Saton, S7S. 1^ riiRTITION. — BOUNDARIES. — DOWIR. ■>* 701 kjiQthtt the evidence is taken, the partition made, the bonndaries fixed, and all the facts ascertained and set forth in his Report The Enelish cases, read with this explanation will not mislead. The practice where Commissioners are appointed is given, as cases may occur of a partition being required in a county where there is no Master. It may further be observed that the practice now to be )inted out is irrespective of that under our Statute as to the Partition and Sale of Real Estate, C. 86 of the Coa Sta. of U. C, which will be noticed presently. When the partition is to be made by commission, and the title of I the plaintiff and of all the ocher parties is clear upon the record, the Court will, at the original hearing, order a commission of partition I to issue, in the first instance, without any previous inquiry. If the titles are not clear, the Court will direct an inquiry as to them. I The plaintiff must, however, state upon the record his own title and the titles of the defendants ; and must show that he and the defen- dants are among them entitled to the whole estate. If necessary, the Court will direct an inquiry to ascertain the shares in which they are so entitled ; and then order a partition according to the rights of aU or such of them as appear entitled : dismissing the bill u against those who do not appear to have any right.^ The Court will not, however, grant such a reference in order to enable plaintiff I to complete his own title.2 ; , '? ^ , .. , i . > : ,i!;f<^ Where the Court directs such inquiries by the decree, it generally goes (m, by the same decree to order a partition to take place, in the shares to which the parties are certified to be entitled, and the com- mission to issue ; but further consideration should be adjourned, in case aQ parties interested are not parties to the suit.' The Court, however, sometimes abstains from ordering the commission to issue until the cause comes on for further consideration :* though this should not be done except in special cases, in consequ*'., >» of the delay and expense it will occasion. Whore more than one commission is required, it may be ordered or provided for by the original decree ; or a subsequent order for it may be obtained on motion in Chambers.* 1 Per Lord Eldon, In Agar v. Fairfax, 17 Vm. 562. J .^ *. Mmhead, 6 Bwv. 218, 219. S Agar r. Fairfax, 17 Ves. 6SS, 568 : Seton, 678—679, and cMes there cited. The pnctioe u ttftted in Cole V. Semll, 16 Sim 284, and Attorney-General v. Hamtlton, I Mad. 21i, is not now lOUowed. ! f tt»'"«»-0«i«nrf T. Bamaim, 1 Mad. 216 ; and see Seton, 678, , , * Seton, 678, '"-K •# 1' i % '■■■-'f m 702 PARTITION. — BOUNDARIES. — DOWBR. 3 ^ii i ■'•i' 5ts» The names of the Commissioners should be agreed upon betwe the parties, who join and strike names. Each party appearioff bil a separate solicitor is entitled to name four Commissioners ; but twJ only of each set of four can be retained ; and not less than feu names will be inserted in the commisHion,^ unless the Court od Judge otherwise directs.* If the parties cannot agree upon names, the Judge at Chambers will determine who sb"'^ be name on a summons being taken out for that purpose.' To expeo however, it is very common for the parties to agree, amongst them-j selves, upon two persons to act as Commissioners : in which caBeJ two fictitious names must be added, so as to preserve the form o^ the wrii* The proceedings under the commission are open, and not secret and no oath of secrecy is required to be taken by the Copimisaioners) or those employed under them.^ To enable the Commissioners tol perform their duty, they are armed by the commission with powerl to cause all such witnesses as they may see occasion, to come beforel them to be examined. Thi.s may be done by service o^ a sutparwl and notice, in like manner as a subpcena and noticr served tol procure the attendance of witnesses before an examiL 4^d, uponl the witness attending, the oath may be administered to him by twol or more of the acting Commissioners : the oath being, mutotul mutandis, the same in form as that administered by the Examiner, | The attendance of the witness may be enforced, in the same manner | as the attendance of a witness before the Examiner. ' r- The Commissioners should, it seems, examine the witnesses apartl from each other, if they have any suspicion of manufactured I evidence ; but otherwise, their proceedings should be open, as they act in a judicial capacity, in the nature of a Coui*t, at which the parties and their agents have a right to be present, as was expressly j directed by the writ of partition at Common Law.' The Commissioners themselves examine the witnesses ; and Lord • I 1 Braithwaite'a Pr. 9S6. In Galloway v. Maekeriey the eommiBiionen wen named in the deem directing the partition. The lands partitioned were in Tasmania ; and the return wu fllad Uth January, 18M. _ ,,. 8 See Watton ▼. Dnke of Northumberland, 11 Vea. 163, 168 ; Hotoard r. Bamvell, 8 N. B. 414, { V. C. 8. '. 5 MoreiBood t. Hall, and other cases cited in Seton, 688 : Howard r. BarwoM, itM vtf- : Bnitb- waite's Pr. 886. 4 Braithwaite'a Pr. 286. 6 See Lord Redesdale's opinion upon the Oommisston in Cwrton r. LyiUr, Seton, lit ed. 191. 6 Lord Redesdale's opinion, in Curzon v. LytUr, Seton, let ed. 198. PROCEEDINGS UNDER DECREES FOR A PARTITION. 703 le was of opinion that it would not be advisable for the Commissioners to let the solicitors for the parties put the questions : though he was not clear whether the parties had not a right to such lasistance, if they thought proper to use it.^ The witnesses may be ex&mined upon interrogatories ; but in that case, a direction to that effect must be inserted in the decree and commission.^ The Com- missioners are not bound, personally, to take the depositions : that ig^ to write down the answers of the witnesses; but they may employ clerks to do this part of the business. The clerks, however, must act entirely by their direction, and write the substance of what falls from the witnesses, in ♦he language the Commissioners direct. If any dispute aricMs, us to the evidence given by a witness, the Commissioners must agree amongst themselves upon the words of the deposition, and, having done so, the deposition must be read over to the witness, and ought to be signed by him before he is dismissed.' If any of the Commissioners propose to receive evidence touching any matter not relevant to the business before them, the other Commissioners should object to receiving such evidence, and may refuse to sign the depositions, if taken, and to annex them to the return.* , , : > ,,•. The depositions on behalf of the different parties should be kept distinct The depositions should, according to the directions in the decree and commission, be returned with the commission.^ .,, ., (ii*V^ t i x-f it i .*\ f> According to the usual form of decrees made in cases of partition, all deeds and writings relating to the estates to be divided, in the custody of any of the parties, are to be produced before the Com- missioners, upon oath, as the Commissioners shall require.' The Commissioners, when once they are appointed, though named by the different parties, are Commissioners for all the parties.' In fact they are to act as judges : the whole power of the Court being delegated to them ; and, if four act, and there is a difference of 1 Lord S6d«:d»le'a opinion, in Curzon r. L]/«(cr, Seton, lit ed. 180. ' . > u> -ci^dV^ , .' S lord Bcdflsdale'i opinion. 4 Hid, 196. 5 Brtlthwaite'i Pr. 984. In Watson v. DuJce of Xorthumbtrland, 11 Ves. 153, it wm sUted, at the bar, that upon rery few commissions tiu any return been mode of the evidence, tb. 167 ; and Lord Eldon said, he believed the practice to be v~ stated, that the return was made without the evidence ; A. 181. A compliance with the directions of the commission would, however, appear to be the proper course, and that now adopted : Braithwaite's Pr. 287, 288. Jjiton.STl. 7 P«T Lord Eldon, in Watton v. Dvk« o/ NorthumberlaTul, 11 Tea. 15S. 160 704 PARTITION. — BOUNDARIES. — DOWER. -XjUH ■is'' .It opinion amongst them, one being of one opinion and three of another, the three make the return ; and mo, if three are present and two concur in opinion against the third, that is sufficient ; hat the commission does not authorise two out of four to act, where all four are present ; and, therefore, it does not authorise a double return by two Commissioners one way, and by the other two another way ; though if two only are present, a return by them will be good.^ As the Commissioners act as a court, their proceedii^ ought to be open. The parties or their solicitors should attend them ; should point out what may tend to give the Commissioners full information on the subject ; should produce their deeds and other evidence, as well widtten as oral ; should know what evidence is given on both sides; should be at liberty to cross-examine the witnesses under the control of the Commissioners ; and take every step n&cesaaiy to discover the truth, and enable the Commissioners to make a proper retum.2 i.-i!,,,^ ;(,« .WiM'^ i .■i^-nhrj-y^vin-,^ rv: The commission itself ought to be produced to thi. Commissioners when they meet, and should remain with them till L proceedings are closed, and their return annexed.' "' ' ' "'' '^^''' ^ 'f'^s .(' ^""rtie course to be pursued by the Commissioners, under a com- mission of partition, is very clearly pointed out by the terms of the commission. In the first place, they are directed to meet together, at some certain place by them appointed, and are from thence to ** go to, enter upon, and walk over, the estate." In order that they may do this, they must firstascertain the estate which is the subject of I the commission ; and for that purpose, they must look into the bill and answers ; and if, from thence, they can ascertain the property, they must stop there : if they find the descriptions in those instru- ments not sufficiently accurate to enable them to proceed, they must endeavour to supply the defect in the pleadings by evidence. But the pleadings must still be their guide as to what evidence i they shall receive : for they are to divide " the estates in question in the cause,"^ and no others ; any evidence, therefore, touching estates j not in question in the cause will be irrelevimt to the business before 1 Ibid. 168, 188. S S«e Lord Redesditle's opinion, in Cur ton v. Lyiter, Seton, lit ed . 199. 8 Ibid, ivr. ^ _,_^ „ 4 In the modem form of commission, the estate to be partitioned is referred to by its desenpnonu | the decree : to whidi the words, "in the decree, and in the pleadings of the oaase, moitpinw- ularly mentioned," are superadded : see Bnlthwalte's Pr. IW. 'M PROCEEDINGS UNDEB DECREES FOR A PARTITION. 706 ^''■■^: mmissioners the Commissioners, and ought to be rejected by them, except so fax as it may be necessary for the purpose of ascertaining what are the estates in question ; and such evidence may be necessary, if there is any confusion or intermixture of boundaries,^ between the estates in Question and those not in question. „ , , . , = , . . , Having ascertained what the estate is, which is to be the subject of the partition, the next thing the Commissioners have to do is, to make "a fair partition, division, and allotment, thereof," into as many shares and proportions as the decree or order, under which the commission issues, directs. In doing this the Commissioners must exercise " the best of their skill, knowledge, and judgment ;" and, provided they do that, and act fairly, the Court will not, it seems, distrust their return upon the mere allegation of conflicting opinions by different surveyors, with respect to the comparative value 0^ the several lots : the Court considering that, as the Com- missionei's are named by the parties, and are, therefore, judges of their own choice, the principles which apply to arbitrators are properly applicable to them,^ Where, however, it can be shown that the Commissioners have committed a gross error in judgment, (although there is no proof of partiality,) the Court will set aside their adjudication.* . It is to be observed, that, in making a partition in Chancery, every part of the estate need not be divided, but that it will be iiifficient if each party have his proper share of the whole.* Thus, where two-thirds of an estate belonged to the plaintiff, and one- to the defendant, and the estate consisted, amongst other 1, of a mansion-house and of farms and lands about it, and the [defendant insisted that he was entitled to have one-third of each lotted to him, Lord Macclesfield said, that although in making le partition care must be taken that the defendant should have a part in value of the estate, there was no" colour of reason that ly part of the estate should be lessened in value in order that the ifendant should have his third of it ; which, if he should have one- of the house and of the park, would very much lessen the I \ ^ RedMdaie'g opinion, Jr. Curzon v. Lynter, Seton, Ist ed . 196. tt " ""• ^ °^^- ^^ '' ««« *•««>. Manners v. CharUaworth, 1 M. & K. 330 ; Coop. t. Broufrh. !&^'«''*"*7»' 1 Y. 4 0. Ex. 588. I Biw no "*^ *' ^""^' * **• ^™"- ***• ^^- ^®*' ^^^ ' •*"* "** ^"" "' ^*«<**<»»». 19 31 ,"ff r 'V 706 PARTITION. — BOUNDARIES. — DOWER. value of both.i So, if there be three houses of different values tol divided amongst three, it will not be right to divide each house] for that would be to spoil every house ; but some recompense should be made, either by a sum of money or rent, for owelty of partition to those who have the houses of less value.^ The CommissionersJ however, have no power to award sums to be paid by way of owelty J unless authorised by the decree.' '.'I. ■f It has, however, sometimes happened, that the estate to be divided! consists of one entire thing, such as a house,* or a cold bath :* in| such cases, the partition must nevertheless be made, and the diffi- culty of doing it will be no reason for not effecting it. So, the reiit| payable in respect of water pipes, by a public company for supply- ing water, laid through the land, has been divided, by apportioningl it between the parties, according to their respective quantities of I the land through which the pipes ran.® In like manner, a mill mayl be divided, by giving to the parties every alternate toll dish: as was done at Common Law, in the case of a writ de partitione faciri em^y In the case of advowsons, the partition is effected by direct- 1 ing alternate presentation : which, as we have seen, is done by the! decree, without issuing a commission.^ So also there may be a par- 1 tition of a manor.* The Commissioners having apportioned and divided the property,! should proceed to set apart and allot the shares to the parties. This! they should do, when it can be accomplished, by lot: for which purpose they should call in some indifferent person, and require that person to draw lots for the shares of each party. ^** It is to be observed,! however, that the course of making the choice of shares, by lot,| should not be resorted to where it cannot be done with fairness, ai III •a 1 1 Earl 0/ Clarendon V. Hornby , 1 P. Wms. 446. 3 Earl of CUverdvn v. Honihy; L P. Wms. 446 ; Peers v. Needham, 19 Beav. 316. 3 Mole V. Marisfield, I5 Sim 41 ; Seton, 679 For form of decree, see ib. 580, No. 3. , 1^ 1 4 Turner v Morian, 8 Ves. 143, 145. The end of that ca.se was, that the commission having M«n executed, an exception was talien by the di-fendant, on the ground that tlje Commiwioners n«a allotted to the plaintiff the wliole stacli of chimneys, all the fireplaces, the only »'?''''»'* ',^„„. house, and all the conveniences in the yard ; and the exception was overruled by Lord tiao" • I who said he did not know how to malce a better partition for the parties ; that, he P*"**i:"! commission with great relu>;tance, but was bound by authority ; and that it must be » fj^ I case to induce the Court to Interfere, as the parties ought i* agree to buy and seU ; see u »» ^ 157, n. 6 Wamery. Baynei, Amb. 689. e md. I 7 Earl 0/ Clarendon v. Hornby, vbi lup. ,„ - n. n 11 ' 8 Seton, 686—688 : Lndieoat* v. Steers, 1 Dick. 89 ; Johnttone t. Baher, 22 Beav. 662 ; w w. ■• & 0. 439 ; 2 Jur. N. S. 1053. 9 Hanbury v. Husney. 14 Beav. 16*2 ; Seton, 686 ; Cattley v. Arnold, 4 K. & J. 696. 10 Lord Redesdale's opinion, in Curzon v. Lytter, Seton, 1st ed. 197. PROCEEDINGS UNDER DECREES FOR A PARTITION. 707 with due regard to the situation of the parties, and of the shares ; but only when tLore are no circumstances to induce the Commis- sioners to allot tlie shares otheiwise.^ In such cases, it is the duty of the Commissioners to assign the shares to those parties to whom they would be of most value (independently of their value in the market), with reference to their respective situations in relation to the value of the property before the partition took place. Thus, where Commissioners were directed to divide lands equally between i., B., and C, and they accordingly divided the lands into portions ofqual value in the market, but assigned to J. an inn of which C. M been for many yeara the occupier, on which he had expended money in improvements, and adjoining to which he had purchased property for the purpose of his occupation, it was held by the L.C.B., Lord Abingbr, that the adjudication of the Commissioners was wrong, and a fresh commission was directed to new Commissioners.^ The Commissioners, having divided and allotted the estate, should prepare their certificate : which m ist detail their proceedings, and appoint the shares of each party, according to their allotments, to be enjoyed by them in severalty : distinguishing each part, if so directed by the commission, by metes and bounds. There is no prescribed form of certificate : it is in the nature of a report ; and, as a rule it should follow, as nearly as may be, the language of the commission ; and the particulars, description, and quantities of the several parts of the estate may be described in the schedule.* The certificate should be signed and sealed by the Commissioners ; and each schedule and plan, annexed thereto, should be signed by them ; but their signatures need not be attested.* The Commissioners should also endorse on the commission their return thereto, and sign the same : adding the word " Commissioners " after their names.® The Commissioners are not limited as to time in returning the writ : they should, however, execute it without delay.^ If the Commissioners connot agree upon a division or allotment, ■'1 |Fic; 1 CannitigY. Canning, 2 Drew. 434 ; 18 Jur. 640. The Court wlU not give any special dirMtton " Wright y. Vernon, I Dt. & B. Wl. to the allotment, on the application of a stranMr : i J^J' /»*»"<>», 1 Y. * C. Ex. 688, 648. I BntthwHte's Pr. 28«, n. \ Bnithwalte's Pr. SSs! < Bnithwkito'i Pr. US. For (orm of oider mit to eompel lotum, mo Soton, 688, No. li. . > g 708 PARTITION. — BOUNDARIES. — DOWER. .J they must make separate certificates:^ though the c^nseqaence thereof will be, if the Commissioners are equally divided, that both returns will be quashed.^ ■ '",■"'"> • '• , The certificate having been signed and sealed by the Commission- ers, must, together with any plans therein referred to, and the depositions of the witnesses, be annexed to the commission ? which must then be closed up and sealed by the acting Commissioners. It seems that if, by mistake, any document referred to by the Com- missioners in their certificate has been omitted to be annexed thereto, the Court will, upon motion, direct it to be added.* If there are two certificates, they must both be annexed to the commission. The commission, and certificate and other documents annexed sealed up as above mentioned, are then transmitted by the Commis- sioners to the Record and Writ Clerks' office, and there filed ; and any party may obtain an office copy.^ The commission having been returned and filed, an order to con- firm the certificate nisi may be obtained, on motion of course. This is generally done by the party suing it out ; but if he neglects to do it, the other side may obtain the order.^ If any ground exists for objecting to the certificate, such as irregularity in its execution, or misconduct or partiality on the part of the Commissioners, a special motion must be made on notice, and supported by affidavits, to quash or suppress the certificate.^ Formerly, exceptions could be taken to the certificate, but now it is conceived that, where the certificate is objected to, but it is not desired to suppress it, a motion should be made to vary it. tmQ.' tf'.;i Ui->:.oJ>- "i'l 5> , So, if there be a double return, and if one party alone applies to quash one of the certificates only, the Court will, if it sees proper, order that certificate to be quashed. This appears to have been done in EaTidle v. Adama,^ where two certificates were made, and, 1 Lord Redesdale's opinion, in Curzonv. Lytter, Seton, Ist ed. 197. a Walton V. Duke of Northumberland, 11 Yes. 163, 163. , 8 In the following: order : 1. The commission ; 2, The certificate ; 3. The plana ; and, 4. The dep«i- tions : Braithwaite'a Pr. 238. 4 8«e Manintrt t. CharUnawth. 1 M. & K. 3S0, 334 ; Coop. t. Brough. 62, M. 6 Braithwatte's Pr 238 6 For form of order, see Seton, 683 ; ,^^ _ 7 Pwrt V. Needham, 10 Beav. 316 ; Watson v. Duk« of /Northumberland, 11 Ves. 166 ; «'«||« ;; Totty, 1 Sim. 186 ; Manner$ r. CharUtworth, 1 M. & K. 880 ; Coop. t. Brougtt. 62. For torn oi order to quash, see Seton, 683, No. 17. 8 Cited in Wtion r. DmH of No rt kmm bt rltmd, iiM tup. I Ml PROCEEDINGS UNDER DECREES FOR A PARTITION. 700 upon the application of the plaintifl', one of those certiiicates was guppressed and the other established : the former being considered, though nominally a return, as no return in fact ; and therefore to be suppressed, as if never annexed to the commission. It does not appear, from the statement of the above case in Watson v. Duke of Northumberland, what the nature of the return suppressed was ; but, in all probability, it was a certificate by one of the Commis- sioners only, in opposition to the certificate of his colleagues : in which case, the return being of one only would be a nullity, not fewer than two being authorized to act. If the return had been by two Commissioners against the return of two others, both the returns would, for the reasons before stated, have been nullities, and must have been quashed, as was the case in Watson v. The Duke of Northw^berland,^ and in Corbet v. Davenant -^ in which latter case, the Court of itself refused to proceed, and ordered the return to be li! If the return to a commission is quashed, the Court will order a new commission to issue ; and in Watson v. The Duke of North- wmherland,^ where there were two returns, each by two Commis- sioners, it ordered the new commission to be directed to five Com- missioners. If the certificate of the Commissioners is not objected to, the order for confirming it should be made absolute, on a motion of course, supported by an affidavit of service of the order nisi, and the Registrar's certificate of no cause shown.* ;, , . . • ., ^ , When the decree directs the partition to be made in Chambers, or where, though a commission is directed to issue, the parties have liberty to carry in a scheme for the partition in Chambers before the commission is issued, and desire to avail themselves thereof,' a copy of the decree is left at Chambers, and an appointment to pro- ceed thereon is taken out and served on the opposite parties, in the usual way. Upon the return of the appointment, directions will be given as to the further prosecution of the matter. Evidence, con- sisting usually of valuations and affidavits by surveyors, must then 1 11 Vm. 166. Ul, 163. « J Bro. C. C. 261 . S 11 V«s. 16S. In Canning v. Canning, 2 Drew. 4S4 : 18 Jur. 640, the new oominiMlon ' to thr< e Comtnigeionen , see S^n, 688. 4 For form of order, see Seton, 688. i ON ffotmrd T. Aamwett, 1 N. R. m, L. JJ . I directed 710 PARTITION. — BOUNDABIES. — DOWER. i it is m be adduced to show the best mode of effecting the partition ; and the scheme of the partition will be approved, without the expense of a commission.* As before mentioned, all this is usuaUy done, in this Province, by a Master. . ..., ,. «. .J, By a partition in Equity, the equitable right only is vested ;* and therefore, whether the partition is made at once by the decree, or is directed to be made in Chambers, or under a commission, the decree usually contains a direction that the parties shall execute mutual conveyances to each other of the allotted shares, according to their respective interests therein. The conveyances should always be directed to be settled by the Judge or a Master where infants or married women are interested ; but if all the parties are sui juris, the conveyances are only directed to be settled by the Judge or Master in case the parties differ about the same.^ When the convey- ance has to be settled by the Judge, the procedure at Chambers is the same as in ordinary cases of settling deeds at Chambei-s. One party cannot refuse to execute the conveyance to another on the ground that the remaining party has not executed the convey- ance to him.^ A decree for a partition generally contains a direction, that, after the partition has been had, such of the title deeds in the possession of the parties as relate solely to any distinct part of the premises which shall be allotted to either of the parties alone, shall be deliv- ered to or retained by him, and that the rest shall be deposited in Court for the mutual benefit of the parties, subject to further order ; or shall be retained by the party having the custody thereof, he undertaking to abide by any order which the Court may make as to the same, with liberty for any party to apply to the Court for directions concerning the same.^ In general, the party entitled to the estate of greatest value is entitled to the custody of the deeds ; and he may be required to enter into a covenant to produce them, and allow copies of them to be taken.* When the parties are equally interested, the plaintiff will have the custody of the deeds.^ 1 l8t Rep. Eng. k Irish Com. App. 68. * 2 Whaley v. Bawton, 2 Sch. & Lef. 372 ; Miller v. Warmington, IJ. * W. 484, 498. 8 See formB of orders, Seton, 671, 67'^. 4 Orger v. Sparke, 9 W. R 180, V. C. W. 5 Jone$ V. Mobinson, 8 De G. M. & O. 910, 912 ; Setou, 681. _ , , . . 6 Seton, 677 ; see the general form of an order as to the title deeds, settled by Lord HardwioM, Hand. 162 ; 3 De O. M. & O. 910, n. ; and see Jones v. Robuuon, u6» «ip. : Mton v. MUon, « Beav. 632 : 6 Jur. N. S. 136 ; and forms of deores in Seton t fiSl, 502, 7 EUon V. Elton, ubi tup. PROCEEDINGS UNDER DECREES FOR A PARTITION. 711 With respect to the costs of a partition, the general rule of the I Court is now understood to be that which was pronounced by the Court, in giving judgment in the case of Agar v. Fairfax } that as the party came into Equity, instead of going to Law, for his own convenience, the rule of law should be adopted, and therefore, no costs should be given until the commission; and that the costs of issuing, executing, and confirming the partition, should be borne by tiie parties, in proportion to the value of their respective interests ; but not the costs of any subsequent proceedings.^ The costs of an infant,' or of a married woman,* or lunatic,^ will be declared to be a charge upon his or her share, including costs before decree.* The costs decreed in partition suits are as in other suits, party I and party costs: and where any of the parties are not 8ui juris, costs as between Solicitor and client are not decreed even by con- sent^ In a suit for partition, in drawing up the decree the parties iiad omitted to have inserted a direction to tax the costs as between Solicitor and client, or to apportion them amongst the several parties Kcording to their respective interests : on a motion for an order directing the Master to do so upon taxation, Spragge, V. C, made |tiie order to apportion the costs, as that would effect a proper carry- : out of the decree pronounced, but refused the order for taxation I as between Solicitor and Client, that being a variation of the decree 1 which could pioperly be done on re-hearing only.* In suits between |joint owners for partition or Sale, the costs are to be borne by the ties in proportion to their respective interests in the property, I except that in the case of partition the Court, if it sees fit, may I give no costs to either party up to the hearing.' Where one of the parties had made a lease of his undivided share, the costs of the lessee, who was a necessaiy party to the suit for ••■'' ■■ ■ ■/• ' ■: ■■ . .;-, -■.:.' 'i. 1 17 Ves. 633, 668 3 See Beames on Coste, 31 ; see also Calmady v. Calmady, 2 Ves. J. 668 ; Baring v Naih, 1 V. & B. K4; Morrit v. Timmim, I Beav. 411, 418 ; M' Bride v. Malemnton, 2 Dr * Wal. 700 ; Seton, 581, 682 ; Morg^an & Davey, 172. J Shtpherd v. Churekill, 26 Beav. 21 ; Cox v. Cox, 8 K & J. 554. In recent cases, where it appeared to be for the benefit of the infant, the Court has directed the costs to be raised by a sale of the e tate, withoijt ajnartition ; Hubbard v. Hubbard, 2 H. & M. 38 ; Donaldton v. Fairfax, ib 4(1, n. (a) ; and see ITiaekeray v. Parker, 1 N. R. 667, V. C. W. ; Davit v. Tarvty, 9 Jur. N. S. 964 ; 11 W. B. 679, H R. ; Grijus v. OriJ/leB, 11 W. R. 943, V. C. K « riumng v. Annstrong, 6 N. R. 181, M. R. In this case, the coats were directed to be raised by « , ..'''f o> ^he estate, although there wat the usual clause against anticipation. ssin^teeou y. HopHtu IJur. N. 8. 1199 ; 4W. R. 107. V. C. 8. » Skq^rd V. ChurekUl, and Cox v. Cox, ubi mp. I Sf!?^ *■ ;:: t It has been decided, that Commissioners of partition have no lie on the commission for their charges.^ Besides this mode of partition, it may be effected under the Ontario Statute 32 Vic, c. 33, amended in 1873. These Statutes have provided full details of the practice to be adopted under them: and it will be convenient here to refer to the clauses of the Chancery I Act under which our Court sometimes proceeds. Sec. 45 of that! Act (Con. Sta. U. C. C, 12) provides that, " In regard to the parti. tion and sale of estates of joint tenants, tenants in common, and I co-parceners, the Court shall possess the same jurisdiction as by the laws of England on the 10th August, 1850, was possessed by the Court! of Chancery in England, and also by the laws of Upper Canada is I possessed by the Courts of Queen's Bench and Common Pleas, orj by the County Court." The fact that there is an outstanding terml in land to portions of which infants are entitled, is no defence to al bill of partition, although it may influence the Court in deciding! between a sale or a partition of the estate. To a bill of partitionj a lessee for years may be a necessary party.' In the case of application by petition for partition under the Statute (c. 86, C. U. C.,) it was decided that partition, where ordered under that ActJ is to be made by the real representative : that the question whethen partition or sale should be ordered is proper to be referred to tha real representative, who is to make sale if ordered : — that the Cour may order a sale in the first instance if it see fit : — and that tha Court will use its own machinery for carrying the purposes of th^ Act into effect.* As to this Act it may be observed that it present no advantage over the ordinary practice of the Court under a bill foj partition, and in the case just quoted the late V. C. Esten reraarke that " The Court will use its own machinery for carrying the purpo of the Act into effect, so far as possible, consistently with the expresi directions of the Act, of which the provisions are somewhat singulan 1 CornUh V. Oest, 2 Cox, 27 ; Beames on Costs, 82 : but see Herbert v. Hedget, 10 Ir. Eq. R. ^T'/V!i' ii; ''1,1' ,t !; H ij. tll'U, » .1(1 I i' . ■'!, '■:■ , r)i\, ■ i V- .' ■■■ ;••'■■ !-»:.:i.''/ Section II. — Proceedings under Decrees to settle Boundarits, In a suit to ascertain boundaries, the decrees generally directs a commission to issue for that purpose.* It may, however, direct the question to be tried before the Court itself with or without a jury, 1 or before a Court of Common Law.* JS .tRff-T rc' .Jt'.:i it ')V. A commission to settle boundaries partakes very much of the same nature as a commission of partition ; it is nearly in the same form, and is sued out, executed, and returned, and the certificate of the Commissioners is objected to, confirmed, or quashed, in the same manner.^ There is, hovvever, frequently this diflference between com- missions to ascertain boundaries and commissions of partition, namely, that, in the case of a partition, the thing to be divided is clearly ascertained and described : whereas, in the case of a commis- sion of boundaries, it is often impossible for the Commissioners to ascertain them with sufficient certainty to set them out. Where, 1 Arnold v. Hurd, 1 Cham. R. 252. 2 MeDougall v. McDougall, 14 Qrant, 267. 3 God/fey v. LitteH, 1 R & M. 59, 63 ; Tainl 221 ; 2 R & M. 630, 636. A8 to the Jurisdiction, m Speer v. Crav)ter,2 Mer. 410, 417 ; Attotiiey General v. Stephetu, IK & J. 624 : 1 Jur N 8 1039 : 6 De G. M. 4 0. 141 ; 2 Jur. N. S. 61 ; Godfrey v Littel, ubt mp. ; Tulloeh v /TortJiy, 1 Y. ft O C. C. 114 ; Hickt v. Mattings 8 K. & J. 701 ; Seton, 690, 691 ; 2 L. C. Eq. 867, «««}.; Ktory Eq. Jur. s. 10. e( seq. All parties inierested must be parties ; Ray ley v Be$t, 1 B.&a. 669. For forms of decrees, see Seton, 68S— 690, 691. 4 Godfrey v. Littel, vJtn sup. 6 See Braithwaite's Pr. 838 ; and caaea cited below. f PROCEEDINOS UNDER DECREES FOR A PARTITION. 715 irever, it is through the default of the tenant or copyholder that ndaries are confused, the Court provides for the case of its being lie to ascertain them, by directing so much of the defen- nt's own land to be set out, as shall be equal to the quantity orig- Uy granted]or leased.^ In such case, the Commissionei-s must ed accordingly. ..• ,*. -(' *^l. r^j}; i '^ a .n i-ui lo >i«0".> lit is to be obserA^d that, in a bill by a picbeiidary agaiubt several ' his lessees for a commission to ascertain the boundaries of his ebendal lands, which had become intermixed with their own lands, ^rd Eldon held that the plaintiff had a right to name as many issioners as the defendants.' I The decree, in a suit to settle boundaries, does not order mutual Inveyances, as in the case of a partition ; but directs that, after ie lands have been set out, the defendant is to deliver possession ereof to the plaintiff, and that the plaintiff and his heirs are to l^ld and enjoy the same against the defendant, or any person or ons claiming under him.^ I The further consideration oi the suit is generally reserved until «r the return of the commisbijn, or trial of the question.* hen, therefore, the commissioners' certificate has been confirmed ))solute, the cause must be set down for hearing on further con- deration, in the usual manner. No certain rule appears to be laid down with reference to the Us of suits to settle boundaries. Where, however, it does not bear to have been owing to any default, either in the plaintiff or pendant, that the lands have been mixed or confounded, the burt will du'ect the costs to be borne by the plaintiff and defen- Qt equally : though the interest of one party is more inconsider- ble than the interest of the other.^ The decision of the Court jith respect to costs will also be influenced by the relation of the ties ; and it is to be recollected, that it has been long settled hat a tenant is bound (among other obligations resulting from that ption) to keep distinct from his own property during the tenancy, i Sfetr y Crawter , i Mcr. 410, 418 ; Wiltisy. Parkinson, 1 Mer. 507, 510 ; Attorney-General \. Ful- leiioH, a V. & B. 263, 264 ; Lord Abergavenny v. Thomas, i West, 649 ; Duke of Leeds v. Earl I uLr.*"*f'^^^ 4 Ves. i8o, 186 ; Attorney Generals, Penruddocke, Seton, 589. I' f y.*i Parkinson, i Swanst. 9 13 if-dAtergaveHuy v. Thomas, Seton, 591, No. 1. 14 ^604/rn V. Lhtell, Taml. 234 : Seton, 588. ll.Vw»My.i«JVrt,< 3Atk. 8a. H. ■(■ , >, I '•I 716 PARTITION. — BOUNDARIES. — DOWER and to leave clearly distinct at the end of it, his landlord's prop not in any way confounded with his own.* If, therefore, it slJ appear that a tenant has either voluntarily or negligently pennitti the boundaries of his own land to get confused with that of landlord, the Court will, in all probability, compel him to pav costs of his misconduct or negligence.' .4I> .., Section III. — Proceedings Under Decrees to Assign Dower. Formerly, the Court would not assist a widow in the assignmel of her dower,' out of her husband's estate, if there was any don as to her Lgal right. Where the title of dower was disputed,! referred" her cJrim to the decision of a Court of Law:' either directing ar. issue, or by ordering the bill to be retained fora cer time, with liberty to the plaintiff to bring a writ of dower, as might be advised.* Now, however, it is presumed that the Con will itself determine the legal right.' When the right to dower has been established or admitted, i inquiry will be directed what lands the husband died seised wherein his widow is entitled to dower ; and the dower will then 1 directed to be assigned.^ ■ - ' ' v. ..}'. This may be done, either in Chambers,^ or by directing a coi| mission to issue, or by reference to a Master." A commission assign dower is nearly in the same form, and is made out, execj ted, and returned, in the same manner as a commission of par tion. It is to be observed that, as in the cp settlement of bou I Attomty-General y. Fullerton ubi sup. . 3 And see further as to costs, Metcalfe v. Becktuitk, a P. Wms. 3;' ; //a ' 'j:Main v. StansfeU, Stil SOI, No. 4, where the costs were directed to be paid rateably ; Bean, on Costs, 35; Morgan | Davey, 174. 3 As to dower, and the jurisdiction of the Court in respect thereto, see Sudg. Stat. 244, et se^.; 673, etseq.; Tudor L. G. Conv. 55, etseq.; Story Eq. Jur. s. 624, etstq. ; Smith's Comp. i8S,| stf. ; a L C. Eq- 402, 403. 4 Ld. Red. lai, 122. . , 5 Muftdy V. Mnndy, a Ves. J. 12a, 128 ; Read v. Read, Ld. Red. 122, n (b) ; Curtu v. Curtu, 1 Bro. C. C. 6ao ; D'Arcyy. Blake, 2 Sch. & Lef 387, 39a 6 Chancery Act, s. 26. 7 See form of decree in ^<'j^/ v. Meggot, Seton, 621, 673. ; If PB0CEEDIHG8 UNDIR DI0REK8 TO ASSIGN DOWER 717 trtit V. Curtu, i riee, it generally forms part of the decree, that when the dower I been assigned, poBsession shall he delivered to the plaintiff.^ Tbe widow is also entitled to an account of the arrears of her er; and this, notwithstanding the death of the heir pending the it: although at law her right to damages would have been lost that event.' The widow's right to the rents and profits, accrued 01 the death of her husband, is not limited to the time of filing tel»ill.* .-,..■ It may be mentioned here, that interest will not be allowed on tars of dower.* i • m-.- ■ ' • / • I The original decree usually directs an account of rents and t)fit8 : whether the assignment of dower is to be made in Gham- i or by conomissioQ.^ Lord Redesdale observes, that " in the two oases of partition end ligmnent of dower, as no costs can be given in a Court of Com- on Law npon a writ of partition or a writ of dower, no costs have bmmonly been given in a Court of Equity upon bills brought for |iie8ame purpose."" As respects dower, this appears to be the iresent rule of the Court, in cases where the widow comes into burt for the single purpose of having dower assigned her : the lie, however, is subject to exceptions where previous questions are lised, in litigating which the party is vexatious '^ therefore, where lie widow had, without any just pretence, been kept out of her bwer, Sir William Grant, M. E., awarded her her costs.' In ^i%oXi, Meggoty^ also, the Court appears to have awarded the ridow her costs, up to the time of the decree : reserving the con- sideration of the subsequent costs until after the report.^® In Equity, as at Law, a widow is not entitled to arrears of |lower, unless her husband died seised. In such a case, she is not, I a general rule, entitled to costs in equity, unless she has made ' f^'S?' *• Meggot, Seton, 671, No. i ; Goodtnough v. Gcodtnough, uii sup. ' C"*** V. C«rt«, 9 Bro. 0. C 620 : contra, Ld. Red. im. 3 u>Vm v. Curtu, ubi sup ; Mundy v. Mundy, 3 Ves. J. 122, 128 ; Oliver v. Richardson, o Vts. aaa. \ loiiuyy.GtUoH, cited 3 Bro. C. C. 49S i H'akefitldy. CAilds, i Fonb. 83. , .„, , , orms, Seton, 67a, 6jS. - 1. Red. 122. 7 ^«wt,Calcraft, i Bro. C C. 134 , see aUo Sir Samuel RomiUy's note of S. C. id. ed Belt, («) ! Jam/ordv. Bam/ord, 5 Hare, 903, aos- P^^ *■ ^Z*''. 1 V. & B. ao ; Beames on Costs, aa, n. (/} ; and see Fry v. NoiU.j Oe G. M. & „ iJr ^1 ' *J"- N- S. ia8 ; aoBeav. 598; i Jur. N S. 767 ; Harris \. Harris, n W. R. 6a,M.R. ' jnon, 671, 6m. J see OuikwaiU y. Outkwaite, refemd to in Beames on Co«tc»l(8. n. (/). As to cQMs in <<■. iSGnmt. 378. ' ' ?«*";' ». Scett. 2 Cham. R. 974. 3 At^ihc duuet of the Maiten in ordinary, see ist Rep. Chan. Com. (185a) pt t6 *t ttq. - il t ^1^ i ■I 780 FB0CEIEDING9 J^ .X^i ^J^IJlXtES' CEAHBKB9. w< M I ^ The Master's office was abolished in England in 1860, and thJ business formerly done by a Master is now done by a Judge Chambers, assisted by officers answering very much to the ok Masters, but now called " Chief Clerks." We, however, have rej tained the office of Master, and we have also a Judge sitting Chambers, who is assisted by an officer styled the "Referee Chambers." Order 210 provides that "A judge sitting in ChamJ bers may exercise the same power and jurisdiction, in respect oil the business brought before him, as is exercised by the Court ; all| orders made by a judge in 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 by any act or acts now ini force, or by any General Order or Orders of the Court, may bel exercised by the judge sitting in Chambers." The duties and powers of the Eeferee are pointed out by Orders j 660 to 667 inclusive, which are as follows : 660. The Beferee in Chambers is hereby empowered to do such thing, and to transact any such business, and to exercise anyl such authority and jurisdiction in respect of the same, as, byl virtue of any statute or custom, or by the practice of the said Go'irtJ is now done and transacted by a Judge of the Court sitting in| Ohaim))^rs, except the matters following : •■■i.'rih;: i^r '■'■■ ' 1. Granting writs of Habeas Corpus, and adjudicating] upon the return thereto ; 2. Appeals and applications in the nature of Appeals ; 3. Proceedings as to Lunatics under the Consolidated! Statutes of Upper Canada, chapter 12, section 33, ■ * and the 28th Victoria, chapter 17, sections 6 to 11 1 inclusive; 4. Applications for Writs of Arrest ; I iu ■■-J 6. Petitions for advice under the Property and Trusts Act, 29th Victoria, chapter 28, section 31 ; 6. Applications as to the custody of Infants, under the ConsoHdated Statutes of Upper Canada, chapter 74, sectigu 8 ; J GENERAL COURSE OF PROCEEDING AT Ch^MBERS. 721 7. Applications as to leases and sales of settled estates ; to enable minors, with the approbation of the Court, to make binding settlements of their real and per- sonal estate on marriage ; and in regprd to questions submitted for the opinion of the Court in the form of special cfi,ses on the part of such persons as may by themselves, their committees, or guardians, or other- wise, concur therein, under the 28th Victoria, chapter 17, section 1 ; • 8. Opposed applications for Administration Orders ; 9. Opposed applications respecting the Guardianship of the person and property of Infants ; 10. Ex parte Injunctions ; ' ' 11. Proceedings as to Partition and Sale of Real Estate, under the Ontario Statute 32nd and 38rd Victoria, chapter 33; ' • 12. Applications for Leave to Appeal or Ee-hear after the time limited for that purpose has elapsed. i , , ,i , 561. Notice of an application for an administration order, or re- hpecting the guardianship of the person or property of an infant, Imay be in the following form : " Take notice that an application Iwill be made to the Referee in Chambers on, &c., or, if opposed, pen to a Judge in Chambers so soon thereafter as a Judge shall be pitting in Chambers," &c. ; and in such case the application, if is to be heard by a Judge in Chambers forthwith, if a happens to be then sitting in Chambers, or on the first Mon- ay thereafter on which there shall be a Judge so sitting in Chambers. 562. In case any matter appears to the Referee proper for the jdecision of a Judge, he may direct the same to be heard before a |Judge in Chambers. 568. The Orders regulating the conduct of business in Chambers w to apply to proceedings before the Referee in Chambers. 564. Where the Refer ,j in Chambers deems it proper to award osts to either party, he may direct payment of a sum in gi-oss in of taxed costs, and direct by and to whom such sum in gross 1 to be paid. 22 • 722 PROCEBDINOS IN THE JUDGE S CHAMBERS. m 666. All orders made in Chambers are to be signed by the Referee, and further authenticated by the stamp of his office ; and such of the said ordtTs as require entry are to be entered by the Entering Clerk in a separate book kept for that pui-pose ab hitherto. - ' ■ " :n ■_.:< 566. Appeals from orders of the Referee in Chambers are to be I made within fourteen days. . 567. The fees "heretofore payable to the Judges' Secretary under I the Tariifs referred to in Orders 309 and 353 respectively, are hereafter to be paid by law stamps. An appeal will not lie from an order made by the Judges' Secre- tary until it is signed and entered.^ A party cannot use affidavits! not used before the Judges' Secretary, or make a new case on an| appeal.- The matters to be disposed of in Chambers are thus pointed out; Order 197 provides that " The following business shall be disposed of in Chambers, together with such other matters as the Court from I time to time thinks may be more conveniently disposed of therej than in full Court, viz. ; >'"i " 1. For the Sale of the Estates of Infants, under Consolil dated Statutes of Upper Canada, chapter 12, sec- tion 50 ; " 2. As to the guardianship, maintenance, and advancej .. ment of infants ; n ** 3. For the Administration of Estates upon motioD| without bill ; Ml' " 4. Foftime to answer or demur ; "6. For leave to amend bills. "6. For changing the venue; 'V « -• ' " 7. To postpone the examination of witnesses, or to allo^ the production of further evidence ; 1 Oibb V. Murphy, 2 Cham. R. 13.'. 2 Ban^ of Montreal r. WiUon, t Chun. H. 117. QENERAL COURSE OF PROCEEDING AT CHAMBERS. 723 ) i^i'A "8. For the production of documents; " 9. Relating to the conduct of suits or matters ; ' " 10. As to matters connected with the management of property; " 11. For the payment into Court of moneys, by parties desiring, on their own behalf, to pay in the same." Whatever applications can, under these orders, be made in Cham- bers, must be made.^ The Court refused to hear, otherwise than in Chambers, a motion to extend the time for payment of mortgage money.^ A commission de hmatico inquirendo will be granted in Chambers ;' and so may a writ of habeas corpus.^ But all appli- cations in the nature of an appeal from a Master's judgment should be made in Com-t and not in Chambers.^ Where a party moves in Court for what should properly be moved for in Chambers, the Court will not allow the party so moving any costs of the applica- tion, even if the Court feels itself called upon to grant the motion.' Order 198 provides that "The course of proceeding in Chambers is, ordinarily, to be the same as the course of proceeding in Court on motion. Notice of the application (where the proceeding is not a f arte) is to be served in the same manner as a notice of motion returaable in open Court. In other cases, an appointment is to be obtained which may be in a form similar to the form set forth in Schedule K, hereunder written, with such variation as the circum- stances of the case may require."'^ And Order 199, that " Where it appears upon the hearing of any matter that, by reason of absence, or for any other sufficient cause, the service of notice of tbe application, or of the appointment, cannot be made, or ought to be dispensed with, such service may be dispensed with, or any substituted service, or notice by advertisement, or otherwise, may be ordered." The following Orders, as to the mode of taking accounts, estab- lish a practice almost identical with that adopted in the Master's , , Fitzgerald v, U. C. M. Co., Ibid; Jay v. Maedonell, 2 Ch»m. R. 71 ; but see Order 681. : r'"?'.V "• CouHney, 10 Grant, 52 : aiid see Kiiw r. Cnrnor, 10 Orant, 804, to the same effect. l8«»8oh»duleK,Volm. i if •f 724 PROCEEDINGS IN THE JUDGE'S CHAMBERS. office:^ Order 200 provides that "Where an account is taken in Chambers, special directions may be given with respect to the mode in which the account is to be taken and vouched ; and in taking the account, the books of account in which the accounts re- quired to be taken have been kept, or any of them nhaW be taken as prima facie evidence of the truth of the matters therein con- tained, with liberty to the parties interested to take such objections thereto as they may be advised." This Order is very similar to Order 228, which will be noticed in describing the practice in tbt Master's office. .4 .. ,. Order 201 provides that " An accountin^Jt party is to bring in his account in the form of debtor and creditor, and verify the same by affidavit, unless otherwise directed. The items on each side of the account are to be numbered consecutively, and the account is to be referred to by affidavit as an exhibit, and not to be annexed thereto, and is to be left at Chambers." 'And Order 202, that "A party seeking to charge an accounting party beyond what he lias by his account admitted to have received, is to give notice thereof to the accounting part3% stating, as far as he is able, the amount sooglit to be charged, and the particulars thereof, in a short and succinct manner." By Order 203, "No state of facts, charges, or dis- charges, are to be brought into Chambers; and where original deeds or documents can be brought in, no copies are to be made, without special dkection;" and Order 204 provides that, " Where directed, copies, abstracts, or extracts of or from accounts, deeds. or other documents, are to be supplied." ' '■*■• T'*!/ The course of proceeding in Chambers is ordinarily the same as the course of proceeding in Court upon motions. The evidence made use of is usually adduced by affidavit. If affidavits in the cause are subsequently made use of at Chambers, the witnesses may be cross-examined thereon.^ " f^*^^ Order 540 provides that " In all cases where, according to the present practice, a reference to the Master would be dii-ected, the Court may dispose of such matters itself, if it thinks fit, and may direct the proceedings to be taken in full Court, or in Chambers, a it finds expedient." 1 By Order 6S0, this word "shall " is to be read u permissive. 2 SpUtU 7. Hughes, 11 Jur. N. S. 161 ; It W. R. 361, 8. c. ; and see Jeimer ▼. Mvrritt 10 W. RNA GENERAL COURSE OF PROCEEDING AT CHAMBERS. 725 When a party moving desires to have his application heard be- fore a Judge, it does not entitle him to have it heard at a future day, but it may be heard at once. The Court will not encourage the hearing of motions before a Judge, where the object of doing so is obviously to gain time after it has been refused by the Secre- tary.^ An order made by a Judge on an appeal from the Secre- tary is a Chamber order ; and if costs or further directions are reserved, they should be disposed of before a Judge in Chambers, and the order made thereon entitled lu Chambers. Where, there- fore, ill such a case the cause was set down, and in the list of causes to be heard on further directions, it was held to be impro- perly set down, and the costs of the day given against the party setting it down.- It will be convenient to introduce here several Orders relating to the sittings of the Court, and the regulation of Chamber business. Order 590 provides that "A Judge will sit in Chambers every Monday, and on such other days as the state of business may re- quire, to hear and dispose of such Chamber applications as cannot be heard and disposed of by the Referee." Order 591, that " Appeals from the referee in Chambers, or from local Masters and others, when they are acting under Order 36, or under the Act for Quieting Titles, are to be heard in Chambers, and are to be set do^^^l for that purpose on or before the preceding Saturday. Seven clear days' notice is to be given of all appeals under tlie Act for Quieting Titles ; and two clear days' notice of other appeals from th(i Referee in Chambers. All such appeals are to be argued by counsel." , . . . . . u..,.-. ^■1 Order 592, that "A Judge will sit in Court on Tuesday, Wednes- day, and Thursday ."and on such other days as the state of business may require, in every week, for the despatch of all business other than rehearings and Chamber business." Order 693, that ** The business before the Court will be taken as follows : 1 LoeAIan v. Reynoldi ; Monk v. Waddtll, 9 Chun. R. 464. 2 JMby V. Jictrty, SCttuun. R. 400- - n. 4 w '*(! .41 726 PROCEEDINGS IN THE JUDGE'S CHAMBERS. ■ti\h' "Tuesday. — Motions. ' " Wednesday. — Hearings pro confesso ; and on Bill and Answer; Motions for Decree; Further Directions; Petitions ; Demurrers. +< .. • " Thursday. — Appeals from Masters' Reports." L.J' .'IVi? J- Order 694, that " No orders of course, or orders made in Cham- bers, are to be entered, except — ns -,■- < • « ;, ; ,, •; , .„. i'>r^ P(. -ii:! ,* 1 • .' / ■ V- . r. '• -Mi '1 i I < ** for Administration ; " for the Sale of Infant's Estates ; *i, for Payment of Money into or out of Court; " for Foreclosure or Sale ; ', . " of Revivor; *^ Vesting Orders ; ,^,j ,,., ,;,j^ i , and such other orders as may from time to time, in any particular case or otherwise, be directed to be entered." ,, > ,.;,„ f* 1 x.i The right to use the proceedings in the cause, as evidence at Chambers, is subject to the same rules and restrictions as govern the admissibility of similar evidence before the Court ; therefore, evidence will not be admissible merely because it appears on the decree to have been taken at the hearing of the cause : for the evi- dence may be admissible against one defendant, or for one purpose, and not against another defendant, or for another purpose.^ The rules with respect to fOing affidavits in proceedings before the Court have been before fully stated ; and they are generally ap- plicable to proceedings in Chambers. 1 Han4ford v. Hcmd/ord, 6 Han, 21S ; Md Me SmUk ▼. AUhut, 11 Vm. 6M. GENERAL COURSE OP PROCEEDING AT CHAMBERS. 727 It seems, also, that the evidence of witnesses in another cause, lietween the same parties, may be read at Chambers without an order to warrant it ;* though, as we have seen, notice is necessary I tn authorize the reading of such depositions or proceedings before the Court at the hearing.^ In Lubiere v. Oenou,^ however. Sir Thomas Clarke, M. R., made an order for the reading of the deposi- Jtions in a cross cause, on an account before the Master, directed in I the original cause ; but it is to be observed that, in that case, a diffi- Ictilty was suggested, arising from the circumstance that the cross |hill had been dismissed. < Oral evidence may also be made use of at Chambers.* The attendance of a party or witness in Chambers is procured in I the same way as before the Court at Examination and Hearing I Term, or before a Master or Examiner, by subpcena, and when Ipapers are recjuired to be produced, a subpc&im duces tecum is used. The rules before stated as to the tender of expenses to witnesses, [apply to persons summoned to give evidence in Chambers ; and a party to the suit, when so summoned, is entitled, like a witness, to [require the payment of his expenses before he is sworn.^ The Judge has the same power of ordering the production of Idocuinents, for the purposes of proceedings at Chambers, as he has [for the purposes ot proceedings in Court ; and such production may [be obtained in the ordinary way. Au order made in Chambers by the Judge in person is subject to [appeal in the usual manner ;** but the Court of Appeal will, in gen- jeral, decline to hear a])peals directly from Chambers, where the [parties have not had an opportunity of being heard by counsel.^ Mwott., 3 Atk. 624. *"' ">:'•/■ ■ ' . ; ■': i Orter 175. 5 1 Ves. 8. 679. j See He Electric Telegi-aph Company of Ireland, Kx parte Buna, H Beav. 137 ; 3 Jur. N. 8. 1013. ) Oavty V. hurraiU, 24 Beav. 403 ; 4 Jur N. S. 230 d mndert v. Dniee, 3 Drew, 139 ; Snotodvn v. Metropolitan Railtoay Company, 1 De O. J. .\. S. |<« ; Jur. N. S. 583 ; but see ite JT Veagh, M' I 'eagh v. Croall 1 De O. J . <\ S. 399 : 9 Jur. N. 8. ^7, where the Lord Chancellor declined lo hear an appeal iroiu an order made bv V. C. Stuart at Vn»mber8, in person, refusing with costs an application by summo s, by a creditor, for produc- Mun of documents, in the course of prosecutiu); accouuts under a decree : notwithstanding tlie * ' C. had declined to adjourn the question into Court (or argument by coimsel. In th^t case, Uie creditor subsequently moved before the Court below (or an order similar to that re(uMd in \;>iMibers ; and appealed aiiainst the Judge's refusal o( the motion ; sec 1 De O J. & S. 401 ; 9 , ^'"T. N, S. 240. *^ ^^ ' '^ygkM V. Gulliver, 1 De Q. & J. 113 ; Harriion v. Mayor of Southampton, 20 L. T. 61 L. JJ. (, atKeAtmoity. Sw\ft, li Jur. N. S. 274 ; 13 W. K. 632, L. JJ. Whe e the Judge deoliued to ad- journ the matter into Court to be argued by counsel, the appeal was heard : RidguMy v. Jfew- *^, 4 Oe 0. & J. 16 ; bu- see Jie if Veagh M' Veagh r. CroaU, 1 De O. J. & S. 89» ; 9 Jur. N.S^ 'SI, tup. 'm ■I 1 ■m IK I i il f ■ 728 PROCEEDINGS IN THE JUDGE'S C.*HAMBERS. 1 I; if j! ''''^ (• ':!; ^.I' Order 210 gives to all orders made by a Judge in Chambers the force and effect of Orders of the Court, and they are appealed in the same way. Order 208 provides, that " The Court may adjourn for consider- ation in Chambei-8 any matter which, in the opinion of the Court I may be disposed of more conveniently in Chambers : aud any mat- ter pending in Chambers may be adjourned to open Court; and such matter may be so adjoumed at the request of either party, subject to such order as to costs or otherwise, as the Court thinks I right to impose." A Judge in Chambers has a discretion to refuse | to adjourn any matter to be heard in Court.^ By Order 209, " Mat- ters adjourned from Chambers are to be heard in Court by one l Judge, unless by special leave, which may be granted ex parte ; and without such leave are not to come before the full Court, except by way of re-hearing the order made in Court thereon." Order 205 provides, that " Where in the prosecution of any pro- ceeding under a decree, it appears that some persons, not already parties, ought to be made parties, and ought to attend or be enabled to attend the proceedings, directions may be given for serving an office-copy of the decree upon such parties, and upon due 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." And by Order 206, " Every office-copy of a decree directed to be served under Order 205, is to be endorsed with a notice to the effect set forth in | Schedule L^^ hereunder written, with such variations as circum- stances may require." Order 207 declares, that " A party served I with an office-copy of a decree under Order 205, 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, set aside, or vary the decree." 1 Walsh T. DeBlaquiere, 12 Gnuit, 107. i For Schedule L, 8e« Vol. HI. I PROCEEDINGS ORIGIXATINO IN CHAMBERS. 729 Section II. — Proceedings originating in Chambers. • " ' '» 1. Administration of Estates on Notice of Motion. It is provided by Order 467, that " 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 inter- ested under the will of any deceasod per ,011, rut} n;>i)ly to the Court^ upon motion, without bill tiled or any other preliminary proceeding, for an order for the administration of the estate, real or personal, of such deceased person." And by Order 468, that " The notice of motion is to be in the form or to the effect set forth in Schedule U., hereunder written,^ and must be served upon the ex- ecutor or administrator." It is to be observed, that by Order 552 it is provided, that " A notice of motion under Order 467, is to be served upon all proper parties, at least fourteen days before the day named for hearing the application." '»>■ An application was made by a creditor for an administration lordemnder Order 15, of June, 1853. No evidence was offered be- yond production of a certified copy of the will, showing the defen- dant to be executor. Held, that although strict proof of the claim, such as must be given in the Master's ofiice, is not necessary, yet prima facie evidence of the applicant's having a right to call for the administration of the estate, must be furnished, and the motion I was refused with costs.^ Where executors are charged with misconduct, a bill must be [filed: PerSpragge, V. C* Where an order for the administration of a deceased person's estate is granted upon the application of any I person beneficially interested therein, the decree will not contain a |direction to enquire as to wilful neglect and default,^ Per Esten, V.G. 'As I understand the practice prevailing in England, under the order similar to the one under which this application is made, the I representatives are not made answerable for wilful default ; to ob- 1 AlOoQgh the word " Court " is here used, the motion is to be made in Chambers under Sec. 8 of • V «? 'f • *'>^ ^^ certain cases it is to be made before the Referee ; see Orders 660. 661. I For Schedule U. see Vol. HI. S&Cfarfa, iCham.R. 67. ♦ ^J^ieoeViEitaU. 8 Orant, 410. I If 730 PROCEEDINGS IN THE JUDOE'S CHAMBERS. :i '1 i is ^ 1^. M li tain Huch a direction there must be a case made for it by a bill filt-d for that purpose. The aecouiit to be taken therefor, will only k of what has actually come to the hands of the defendants." In these two cases the application for the order was made by parties adverse to the executor. When he himself app'ie.s the rule is different. Where an executor or administrator applies for an order to administer the estate of the testator or intestate, the ac- count will be directed to be taken out of what he has received, or which but for his wilful default might have been received,' Per Eaten, V. C. " In Harrison v; McGlashan^ the application was made on behalf of a party interested in the estate, and adversely to the executor. A different rule prevails in England where the appli- cation is on behalf of the executor or administrator. The usual decree must be made." In this case the plaintiff had asked for an inquiry as to wilful neglect or default. An administration order will not be granted where the grounds on which it is claimed are properly the subject of a bill.^ In this case the plaintilf moved for an administration order, claiming to be a creditor upon covenant of testator for good title. Plaintiff had been ousted by title paramount. The application for the order had been answered by the peraonal rep- resentatives, setting up the Statute of Limitations. Pet- Sjnmiiji, V. C, " The plaintiff now desires to take the case out of the Statute by showing fraud in the testator. 1 think that for such a case a bill is proper, and that the questions which will necessarily be raised can not properly be discussed without pleadings and u})on affidavit evidence." Notice of motion for an order to administer the estate of Marshall deceased, who died intestate, had been served on his widow, E. N. M., as administratrix, the application was refused, there not being any evidence produced showing that letters of administration had been granted to her. Sprayge, V. C* " The Order 15^ providing for the administration of estates without bill applies to simple cases only, aad under it the Coui-t will not grant aii order containing special directions to enquire as to what would be proper to be allowed to the applicant (the widow and administratrix] for improvements made on the property, and for the maintenance 1 Letigerwood v. Ledgeruioud, 7 Grant, 5S4 ; but see Carpenter v. tt'ood, 10 Oraiit 364,8ljewiiigtli»i this special enquiry is not neces.sai} . 2 7 Grant, 631. 8 CaiMron v. Maodonald, lie Macdo)iald, 2 Cliaiu. Kcp. 29. 4 lie MarehaU, Fowler v. Marshali, 1 Cliani. Rep. 29. 6 Order 467 iB a copy of the Order 16 of June, 1863. PROfKEPTNOR r»RIf5l\ATI\0 FN CHAMHKRS. 7flt ■•i nt aM.sLewinKUw llhe infant children of the deceased.* Per Spracfge, V. C. " Upon I application being made, I stated ray impreanion to be that it Lid not be proper to direct the special iuaio«on, 3 Cham. H. 401. «r u um iif 3 Ah tu service out of the jurisdiction see also Stroiig, v. Moore, 22 L. J. Ch. 917 : 1 W. R. 5W, «•' For fonns. see Vol. III. . , ,„., 4 Blakeiy v. Blakely, 1 Jur. N. S. H(J8, V. U K. ; Re Fryer, Martindale v. I'k'iunt. 3 h. * J Ji'l PaHinglon v. Heynuld*, 4 Drew. ^1)3 : 4 Jur. N. S. aM) ; sec contra, Mutter v. //t«<*>n, .•»" '* fanuw, i. 34, V C.8. ; see also Uodsonv Ball, 1 Fhil. 177. 1 PBOCEEDINQS OBIOINATINO IN CHAMBERS. 735 j sMuent direction to take the account in that manner be added to the original order ;* nor, in taking the accounts under the order, can the executor be charged upon an admission of assets :- although any auxiliary accounts or inciuiries which may, in the course of the pro- ceedings, be found necessary, may be thus added.^ The Enghsh practice as to the inquiry for wilful neglect or I default on the part of an executor or administrator is as above stated; but, as before intimated, our Court has determined that the Master has power under Order 220 to enter into tliis inquiry j Aitliout any special direction in the decree,* Under a decree for an account, it is the duty of the Master to find whether a defendant is or not chargeable as for wilful default, if the question arises, without I any directions in the decree to that etlect. Where, therefore, a Master reported only that rents and profits had come to the hands the defendant, and after stating a number of facts, submitted to I ilie Court whether he shall or shall not be charged, the matter was referred back to him to complete his report. It is not competent I to a J'.aster to abstain from deciding any question properly coming before him for his decision.-'' I ■Mi The order, when made, has the force and eti'ect of a decree to the [like efi'ect made on the hearing of a cause between the same pifties.*' Therefore, after the order has been made, an injunction may be granted, or a receiver obtained, to prevent the assets being wasted by the defendant;^ or an injunction granted to stay an action at law by a creditor.** The fact that a creditor of an estate has proceeded at law after a decree fjr the administration of the estate of the testator has been obtained is not sufficient io deprive him of his costs, either at law, or of a niotion in thif^ Court to [restrain his action.^ Where,, imder the order made in a suit commenced by notice of motion, the same relief can be obtained as in a suit subsequently 1 d'IJV*''" ^ A!V'wW«, ubi mp. : 2? '•^'«***n', 8 Jur. N. S. 190 ; 8 W. R. VSS, V.CS. iHutttry. Hudiion,2 Jur. N. S. 34. V.CS. , Partington v. Reynolds, ubi mp ; He Delavante, Mawnte r. Child, 6 Jur. N. 8. 118, V.CS. CfT^nter v. Wood, 10 Grant, 354. « !"f""'<'y V. Buil, i Guam. R. 344. 5 Order 210. \ ^^**'' '• ^^"oktr, a 8ra. i (i 476 ; 3 Jur N. S. 381. Vartwr V Oarr^n, 20 Beav. 4(W. < «« tat^trV, 18 Oraiit 580. ^g 73G. PROCEEDINGS IN THE MASTER'S OFFICE.. I I m ''4 l'^* 1 jCs»- commenced by bill, the proceedings in the latter may, as in other cases, be stayed ; but this will not be done if, ii: the latter suit & larger amount of relief can be obtained thair in the fonner.^ The accounts and inquiries directed by the order are prosecuted in the usual manner. The cause will then be heard upon further 1 consideration, in the mode hereafter pointed out. CHAPTER XXV. PROCEEDINGS IN THE MASTER S OFFICE. I Section 1. — Proceedings under Decrees avd Orders. According to the ancient practice of the English Court, all references to a Master used to be made to one of the two Masters sitting in Court, as assistants to the Lord Chancellor or Master of the Rolls, when the reference was made ; but our practice, where there has been no previous reference, is to refer it to the Master | in Ordinary, or to some Master in the country. It may here be noticed that Orders 14, 15, and 16 pointed out the duties of the Accountant ; but these were abrogated by Order | 559, and his duties are now regulated by Orders 568 to 583, in- clusive which are as follows : , Order 668 provides that " The Accountant is to have charge of] the books required by the Orders relating to the Suitors' Accounts, Suitors' Fee Fund Account, Mortgages, and olher investments, and is to be responsible for the due keeping of the said books inj accordance with the said Orders, and for the correctness of all j entries therein." Order 569, that "The word "Accountant" is substituted for " Registrar " in Orders 255, 256, 852, 368, 369, 371, 373, and 486; I and in Schedule V., Form No. 6; and for "Ledger Clerk" in | Orders 363, 354, 356, and 357." , ; .i 1 Ritehie ▼. Humherlion, 17 Jur. 756, V C.W. ; Rump v. Greenhill, 20 Beav. 512 ; 1 Jur. N. 8. 123; P»Sfo« V. Young, 7 W. R. 286, V.C K : but see Vanrenen v. Piffard, IS W. R. 426, V.C.8 PROCEEDINGS UNDER DECREES ^ND ORDERS. 737 Order 570 declares that " The duties assigned by Orders 365 and 307 to the Registrar and Ledger Clerk are to belong to the ccountant alone." By Order 571, '* Money is to be paid out of Court upon the Jioint cheque of the Accountant and Registrar (or Registrar's Chief fcierk), countersigned as hitherto, and not otherwise." Order 572 provides that "The fees heretofore payable in the Registrar's office upon the payment of money into or out of Court, md upon certificates as to the state of any account, are to be paid in the office of the Accountant." Order 673, that " Where the Accountant is directed by an order to pay money to an unmarried woman, an*! the order does not extend to the transfer or delivery to her of any stocks or securi- ties, and she marries before payment of the money, the Account- ant, if the same does not in the whole exceed $600 of principal money, or $50 in annual payments, may draw for the money in favour of such woman, upon an affidavit of herself and her hus- band that no settlement, or agreement for a settlement, has been made or entered into, before, upon, or since their marriage ; or in case any settlement, or agreement for a settlement, has been made or entered into, then upon an affidavit by the woman and her hus- band, identifying the settlement or agreement for a settlement, and stating that no other settlement or agreement for a settlement has been niade or entered into as aforesaid, and an affidavit of the solicitor of the woman and her husband, that such solicitor has carefully perused such settlement or agreement for a settlement, and that, according to the best of his judgment, such money is not, nor is any part thereof, subject to the trusts of the settlement, or agreement for a settlement, or in any manner (comprised therein or affected thereby." Order 574 declares that " Where the Accountant is directed by any order to transfer or deliver any stocks, funds, shares, or secu- rities to an unmarried woman, and the order does not extend to [the payment to her of any money, and the woman marries before the transfer or delivery of the stocks, funds, shares, or securities, and the same do not in the whole exceed in value $600, then, upon an affidavit vl the woman and her husband that no settlement, or 23 J^, PROCEEDINGS IN THE MASTER'S OFFICE. 4 ■g • ^ agreement for a settlement, has been made or entered into before upon, or since their marriage ; or, in case any such settlement on agreement for a settlement, has been made or entered into, then [ upon an affidavit of such woman and her husband, identifyina such settlement, or agreement for a settlement, and stating that no other settletnent, or agreement for a settlement, has been made or en- tered into as aforesaid, and an affidavit of the solicitor of sudi woman and her husband, that such solicitor has carefully perusal the settlement, or agreement for a settlement, and that, accordiutj to the best of his judgment, the stocks, funds, shares, or securitits.l are not, nor is any rt thereof, subject to the trusts of any settl^l ment, or agreement for a settlement, or in any manner comprised therein, or affected thereby, the Accountant may transfer or deliwr such stocks, funds, shares, or securities to such married woman. ' Order 575 provides that " A similar course to that mentioned ini Orders 573 and 574 is to be adopted in the case of money direettlj to be paid, and of stocks, funds, shares, and securities directed tul be transferred or delivered to a woman who afterwards marritNl where the aggregate value of such money, stocks, funds, shares,] and securities does not exceed $600." Order 576, that " Where money is directed to be paid out Court to persons to be named in an order or a report, and a sum isl reported or found to be due to any persons as legal personal rquv- sentatives, the same, or any portion thereof, for the time hoiii;-, remaining unpaid, may, upon proof to the Accountant of the deatii] of any of them, be paid to the survivor or survivors of them." Order 577, that " Where money is directed to be paid out oa Court to the legal personal representatives of any person, or to ami persons as legal personal representatives, the same, or any portimf thereof, for the time being remaining unpaid, may, upon proof \i the accountant of the death of any of such legal representatives whether before, on, or after the day of the date of the order, paid to the earvivors or sm'vivor of them." By Order 578. " Wliere money is directed to be paid out of Co'jij to any person named in the order, or named, or to be named, in sii report, or his legal personal representatives, the same, or any poij tion thereof, for the time being remaining unpaid, may, on jirooH % l! PROCEEDINGS UNDER DECREES AND ORDERS. 739 the Accountant of the death of such person, whether before, on, or after the day of the date of the order, to be paid to Buch lej^al per- sonal representatives, or the survivors or sui-vivor of them." r,'*- By Order 579, * * Where stocks, funds, shares, or securities, are directed to be transferred or delivered out of Court to the legal per- sonal representatives of any person, or to any persons as legal personal representatives of any person, the Accountant may, upon proof of the death of any such representatives, whether before, on, or after the day of the date of the order, transfer, or deliver such stocks, funds, shares, or securities to the sui'vivors or survivor of them ; and where stocks, funds, shares, or securities are directed to be transferred and delivered out of Court to any person or his legal personal representatives, the Accountant may, upon the proof of the death of such person, wheth'^ : before, on, or after the day of the date of such order, transfer or deliver such stocks, funds, shares, or securities to such legal personal representatives, or the survivors or survivor of them." By Order 680, "No principal sum of money, nor any stocks, funds, shares, or securities, shall, under Orders 578 and 579, be paid, transferred, or delivered out of Court to the legal personal representatives of any person, under any probate or letters of administration purporting to be granted at any time subsequent to the expiration of six years from the day of the date of the order directing such payment, transfer, or delivery." Order 581 declares that *' No interest or dividends shall, under Order 678, be paid out of Court to the legal personal representa- tives of any person, under any probate or letters of administration purporting to be granted at any lime subsequent to the expiration of six years after the day of the date of the order directing such payment, or after the last receipt of such interest or dividends under such order, which shall last happen." Order 582, that " Where money is dii-ected to be paid out of Court to any persons named or to be named in an order or report, and such money shall, by such order or report, be found to be due to them us partners, the sain*' ;nay be paid to any one or more of such partners." •-••••. •■ : : '; - — ■ .■Si ■■■X' I >. ii 'm ;, ■■''p^ 'i ■ no PROCEEDINGS IN THE MASTER'S OFFICE. m si m. i ^ Order 583, that '* Where an order directing the investment from time to time of any interest or dividends accruing upon any stocks funds, shares, or securities standing in the name of the Account- ant, in trust, in or to the credit of any cause, matter, or account, or upon any stocks, funds, shares, or securities which may be directed to be transferred into the name of the Accountant, or to be carried over from one account to another, or upon any stocks, funds, shares, or securities which may be directed to be purchased with any cash in Court, or with any cash to be paid into Court with his privity, is brought to the Accountant for the purpose of having such direction for investment carried into effect, the Accountant may, from time to time, until he receives notice of an order to the contrary, without any further request, invest the inter- est or dividends so directed to be invested, together with all accu- mulations of interest or dividends thereon, as soon as conveniently may be after they accrue due and have been received, in the pur- chase of the particular description of stocks, funds, shares, or securities named in the order directing such investment, and place such stocks, funds, shares, or securities, when purchased, to the credit of the cause, matter, or account respectively, as may be directed by such order." It may be mentioned, in this place, that after a cause has been referred to a Master, it cannot be withdrawn from that Master with- out an order of the Court, and that such an order will not be made unless on very special occasions, such as the incapacity of the Master, from illness, to attend to the business, which, to justify such a removal, must be shewn to be of a very urgent nature. In one case it appears, that Lord Eldon directed a cause to be removed on the allegation of counsel, that he found the Master in such a state, from his advanced age and infirmity, that it was not proper to go into the business before him.^ Sometimes, where the Master has died and a successor has not been appointed, the Court will make an order that the cause, if the matter of the reference requires immediate attention, should be transferred to another Master.^ : 1 Anoii. 9 Ves. 841. „ .. „ 2 In one case it appears that, upon the death of a Master, a sreneral order was made, that all matwn referred to him should be transferred to another, Prac. Reg. 106. PROCBI&DINGS UNDER DECREES AND ORDERS. 741 The prosecution of the decree devolves upon the plaintiflF, he being considered, in most cases, as the person principally inter- ested in forwarding it. A reference upon an interlocutory order is, for the same reason, usually prosecuted by the party obtaining it, whether plaintiff or defendant. In order, however, to prevent delay in the prosecution of the decree by the party whose duty it is to prosecute it, it is provided, by Order 211, that "Every order referring any matter to the Master is to be brought into his office within fourteen days after the order is drawn up, or after the same should have been drawn up, by the party having the carriage of the same : otherwise any other party to the cause, or any party having an interest in the reference, may assume the carriage of the order, and carry the same into the Master's office." This order refers only to delay in taking out the order and bringing it into the Master's office ; and Order 212 provides that " Where a party actually prosecuting a reference does not proceed before the Master with due diligence, the Master is pt liberty, upon the appli- catioE 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 order to commit to him the prosecution of the order ; and from thenceforth neither the party making default nor bis BoHcitor is to be at liberty to attend the Master as the prose- cutor of the order." I 'I u made, that all matten These orders are taken from Orders 17 and 56 of Lord Lyndhurst's orders. Our Order 684 provides that " Where there is undue delay in prosecuting a reference in the office of the Master in Ordinary, or any local Master, he may issue his warrant to the solicitors or parties interested, which may be transmitted by post, calling upon them to shew cause why the reference should not be duly proceeded with. In default of sufficient cause being shewn to excifbe the delay, or upon default being made in attend- ing upon the return of the warrant, the Master is to certify to the Court the circumstances of the case ; and, thereupon, the reference in his oiHce is to be deemed closed, and is not to be resumed until further order." - • .:.. . ..: ;' . . Order 685 provides that "In all cases under the foregoing order, the Master may order payment of fees and costs in such manner as he thinks fit." 742 PROCEEDINQS IN THE MASTERS OFFICE. ■•1:1 ' Order 686, that " Where an appointment fails by reason of the non-attendance of any party, and the Master does not think fit to proceed ex parte, he may fix the amount of costs to be paid by the absent party to the partv attending upon the appointment." Where an order for administration has been granted to a devisee, who was also a creditor of the estate to a large amouut, but did not state that fact when applying for administration, his silence as to it was considered a ground for sustaining an order transferring the conduct of the proceedings under the reference to another party under the will. No one has a special right to the conduct of proceedings in the Master's office upon a reference under an administration order, but ceteris paribus, it will be com- mitted to those who have the greatest interest in conducting them properly and economically.^ ., ^ . , / . . i Where the plaintiff, in a creditor's suit, delays in prosecuting the decree, the Court will give the carriage of it to another credi- tor on his indemnifying the plaintiff against future costs.^ An application to compel a party having the carriage of an order made on an appeal from a Master's report to proceed with an enquiry in the Master's office should be made to the Master viho has possession of the case.^ No order is necessary, under order 211, to authorize the defen- dant to take the carriage of a decree out of the plaintiff's hands.* In an administration suit, after delay on the part of the plaintiff, the conduct of the reference was given to a solicitor representing certain creditors of the estate. The plaintiff's solicitor, with the consent of the defendant's solicitor, but without notice to the solicitor of the creditors, or informing the Court that such solici- tor had the conduct of the reference, applied in Chambers, and obtained an order to change the venue from Goderioh to Stratford. Such order was, on application, set aside with costs.^ 2. — Warrant to Consider the Decree. .'.! Order 216 provides that " Upon the bringing in of an order, the solicitor bringing in the same is to take out a warrant (unless the 1 J'errin v. Perrin, 3 Cham R. 462. 2 Patterson v. Scott, 4 Grant, 146. 3 Miller v. M'Saughton, 1 Cham. E. 206. 4 Smith V. Henderson, 2 Ch4 Hi- Order 217 provides that " Upon the return of the warrant tol consider, or upon the bringing in of the reference where the war| rant is dispensed with, the Master is to fix a time at which to pro. ceed to the hearing and determining of the reference, and is tol reguhite, in all other respects, the manner of proceeding with tliel reference, and is to give any special dii'ections he thinks fit as to-l .SI :;u "1. The parties who are to attend on the several accountBl and enquiries ; " 2. The time at which, or within which, each proceedini; | is to be taken ; " 3. The mode in which any accpunts referred to him are to | be taken or vouched ; "4. The evidence to be adduced in support thereof; ^ "5. The manner in which each of the accounts and enqui- '■ I , . ries is to be prosecuted ; . , . " And such directions may be afterwards varied, or added to, asj may be found necessary" Before the Master's office was abolished in England, the issuing of a warrant ** to consider " was imperative in every reference, bat our Court has left this in the discretion of the Master. The pro- 1 priety of this is forcibly described in Daniel's Practice. In speak- ing of the English orders, which are very similar to ours, excepting I as to the discretion given to the Master in issuing a warrant "to| consider," he says: ^ " These orders appear to have been framed for the purpose of carrying into effect the recommendation of the commissioners for enquiring into the practice of the Court ; and certainly if the | objects suggested in their report as likely to result from the adop- tion of the recommendation could be attained, the continuance of I these orders amongst the general orders of the Court would be | most desirable. It is obvious, however, that, in many cases, the observance of them would be perfectly useless, and that in others, especially in those in which the enforcement of their provisions would be most desirable, it would be impracticable to carry them into effect. It is observed, by an intelligent writer upon this sub- PROCEEDIMGS UNDKR DECREES AND OJEUDEBS. 745 Iject 'that, in certain references, the obligt*.ion to take out this I warrant is a tax upon the suitor, an expense without the slightest Ldvantage; and there is something ludicrous in a warrant to con- gider bow a decree dismissing a bill with costs, or containing a Limpie reference, is to be prosecuted.'* Where the decree is more complicated, and it is in those cases chiefly that the proposed meeting of all parties to consider the method of carrying on the ■decree would be attended with most advantage, how are the direc- Itions of the order to be complied with ? It is to be recollected Ithat, upon this attendance, the Master must, necessarily, be totally ligQorant of any of the circumstances of the case ; all that he has Ikfore him is a copy of the ordering part of the decree alone. He lis in no situation to decide what parties are entitled to attend future proceedings. He may perhaps be able, in general, to decide Iwhat advertise^aents will be necessary in carrying on a creditor's suit, but how can he point out, without knowing more than he is likely to do from the mere ordering part of the decree, which of Ithe several proceedings directed upon it may be properly going on IjKiri passu, and, as to what paiiiicular matters, interrogatories for Ithe examination of the parties, appear to be necessary ? and Iwhether matters requiring evidence shall be proved by affidavit or Iby examination of witnesses ? All and each of these matters re- Iqaire, in cases which are at all out of the ordinary routine, a know- ;e of the facts and circumstances of the case, which, in many lof such cases, it would be impossible to acquire &om the verbal linfcrmation of the solicitors attending, or of their managing prks, and indeed could only be properly brought before the Mao- er in the form of a state of facts,^ which would be attended with i considerable expense to the suitor, and was evidently not within lilie contemplation of the commissioners, in recommending the prders in question. It is true that, in some cases, a compliance nth the directions of the 51st order might be productive of advan- age, by affording an opportunity for suggestions and mutual com- ttunications to pass between the solicitors or their clients, in the presence of the Master; but, in the generality of cases, especially I contested ones, these are not very likely to occur ; and, instead pf the Master having to listen to useful suggestions and commu- ■■:t'i -^' lltalth'iCh.Pr. ICC. " j S^ ^'^> '" '^'■V under thk order, Master ^tntford oompelled the party to bring In Nnm, and proponiM to the Buumer of executing th«de«rM. S Smith, 100. »itat« 746 PROCEEDINGS IN THE MASTER S OFFICE. Tiications between the solicitors, he would very probably be occupied ill listening to discussions and arguments upon points as towhicli he has no power, from want of information, to come to a proper decision. It is evident, therefore, that, in most cases, a compli ance with the terms of these orders, if not injurious, can be pro- ductive of little or no advantage whatever ; and indeed, the impracticability of complying with the 61st order is so strongly felt, that, in some offices, the obligation to take out the warrant to consider the decree is dispensed with, although in others the Mas- ters feel themselves bound to comply with the order."^ The warrant ** to consider " is nevertheless very useful, though it is impossible to make all the directions mentioned in our orders u The solicitors of the parties all met together before the Master; the mode of prosecuting the decree is arranged ; if an objectiou is raised to the attendance of any party, it is decided before any expense has been incurred ; the number of parties who are to be served on the several proceedings is canvAssed and hxed ; certain times are limited for the several proceedings ; and suggestions and mutual communications pass between the solicitors. ' The particular cases in which it may be used to advantage will be pointed out hereafter. - - >" 3. How the Warrant to Consider is taken out and underwritten. The warrant is headed with a short style of the suit — as Jones i. Smith — and is underwritten thus : ''To consider the decree in thit cause dated on next, at o'clock. The Mattti will fix the time to make it attendahle. *" Serve a copy on the opposiit solicitor. , rl; This service need not be personal on the solicitor, but leaving i copy at his ofl&ce is sufficient ;* but it must be made between the hours of ten o'clock in the forenoon and four o'clock in the after noon, except on Saturday, when it must be made between ten a.m. and two p.m. ^ If the service is made after these hours, it deemed as made on the following day in the first case, and on th( 1 S Smith, 100. t Prie$ T. PriM, dted In 2 Bmiih't Pnw. 10*. S Oont O. O. No. 410i PROCEEDINGS UNDElt DECREES AND ORDERS. 747 londay following in the second. * These orders apply to the ser- Luponthe solicitor of "pleadings," "notices," "orders," "and her proceedings." I There is a difference in the practice here among the various Mas- to the time required between the service of a warrant and i return. The English practice was to have one clear day between tesernce and retui*n of a warrant " to consider," and two clear Lv9 between the service and returns of all other warrants, except [the case of a warrant " to sign," which required three days ser- ^e. hi our Court, the proper practice requires one clear day's ice of a warrant "to consider," and two clear day's service of I other warrants. * Sundays and all other legal holidays are not liinted— for instance, if a warrant " to consider " be served on ^turday, it cannot be made attendable until the Wednesday follow- ;; and if a warrant, not being a warrant "to consider," be ved on Friday, it cannot be made attendable until the following kesday. When the service is required to be made upon a party BO ha8 appeared in person, the mode of service is pointed out in ders 44 and 45. ^^^ , ;.tuhM.ii.H :t ^ ,.-:.iil.: tn vr:...-Mn iThe service of warrants was dispensed with on production of an pdavit shewing tht ' the defendant could not be served. * Where defendant, in a foreclosure suit, was served with the first war- ut and had absconded, and the subsequent warrants had been tat his residence within the jurisdiction, such service was held Bcient.* ' 1 Ciiam. B. 66. 748 PB0CEEDIN08 IN THE MAHTER'S OVf ICE. Upon the return of the warrant "to consider," the Masi makes such directions (which he enters in the Master's Book) the prosecution of the decree as to him may seem best, folb as closely as possible the directions in Order 217. The Court, « sidering that it is impossible to map out the proceedings to taken in a suit, have conferred upon the Masters the most an powers enabling them to work the decrees brought before thi almost in any way which may seem advantageous to the part interested. These powers are more ample than those which possessed by the Masters in England, and the consequence been that the proceedings in the Masters* cmces here aremo^ pie and expeditious, and less expensive, than they would have be had the English practice been fully adopted. Our Court has pi vided, by Order 240, that " In giving directions, and in regulat the manner of proceeding before him, the Master is to devise adopt the simplest, most sr iedy, and least expensive method prosecuting the reference, a. i every part thereof ; and with t view, to dispense with any proceedings ordinarily taken, but wbi he conceives to be unnecessary, and to shorten the periods for t ing any proceedings ; or to substitute a different course of p ceedingB for that ordinarily taken." ''a. O.J On every attendance before the Master under a decree or oril he marks in his book the names of the solicitors who attend, no other attendance than those so marked will be allowed on ta tion of costs, unless it can, in some other way, be shewn to taxing officer's satisfaction that the attendance was actually ma This is, however, sometimes impossible to do, and it is, the/efi a matter of consequence to the solicitor that he ascertain from Master, before he leaves his office, that his attendance i properly marked, for it not unfrequently happens that this is o ted to be done, either from the solicitor coming in after the Mas has commenced the proceedings, or from the hurry of busini This precaution is of greater importance in cases where the Mi is at liberty, under the tariff, to allow $2 per hour, for this can be taxed unless a direction that it be allowed be made at the ttm the Master's Book. tA Order 229 provides thai ** No states of facts, charges, « PR0CEEDIKO8 ITNDER DECBEBS AUD OItI>KBS. 749 jfis ve to be bronght into the Master's office ; and where ' deeds or documents can be brought in, no copies are to be without special direction." Order 241 provides that " Where the Master directs parties not littendance before him to be notified to attend at some future day, different purposes at different future days, it shall not be to issue separate warrants, but the pitrties shall be noti- one appointment, signed by the Master, of the proceedings taken, and of the times by him appointed for taking the oe. I A warrant shall be so underwritten as to explain clearly what leedings are intended to be taken under it : and if proceedings taken of which the warrant gives no notice, or which are incon. nt with the underwriting, in the absence of parties interested, who might, if present, have opposed them, such proceedings be set aside and the benefit of them refused to the parties so ly proceeding. - ^ - ^ •' ■• When a warrant was underwritten " to settle advertisemeiat for lie of the balance of the unconverted assets of the estate," and hont farther warrant the accountant directed that an offer for bonds of the entate be accepted, and the purchaser, a party |terested under the will, made a profit on such purchase, the er, apon the question being submitted to nim, declared Buid ofits to belong to the geneM.1 estate.^ «. < V, [Order 213 provides, that " Every reference is to be called an and led with at the day and time fixed, unless the Master in his etion thinks fit to postpone the same ; and in graating an I to postpone the hearing of a reference the Master may ke such order, as to the costs consequent upon such postponement i thinks just." One of the Masters for the purpose of enforcing nctuality on the part of Solicitors in attending upon warrants, iblished the practice not only of giving costs — (usually $2.00 to opposite Solicitor) against the party asking the adjournment i of adding to his directions that these costs should be paid before P&rty seeking the adjournment again appeared in his ofiice. in cases where the party taking out a warrant failed to attend |i>nimi T. Denimm, Z Cbun. B. M9. 11 750 PROCEBDINOS IN THE MASTER'S OFFICE. i at the hour, he, at the request of the opposite party iu attendana dismissed the warrant with costs (usually $2.00) to he paid to opposite party, before the party in default again appeared in office. The effect of this order is that the defaulting party can i nothing in the Master's (»ffice in the suit, not even take out a nei warrant until the costs are paid ; the effect of this practice is | ensure great punctuality, and as a consequence correspondin expedition in the business of the office. It was however obje that the Master exceeded his authority in providing this mixle i compelling payment of the costs, but the Court held in a ease bntuiili before them for the purpose of testing the Master's authority tlJ theoixier was extensive enough to wan'ant the course he hatl adopts and that he had a right to establish this practice if he tliought tit Formerly in England the Master couid not proceed with a refei^n^ de die in diem, without the special order of the Court— Imt th was altered, and our order 214 provides, that "As soon as Master has entered upon the hearing of a reference he is to pnicet therewith to the conclusion without interruption, where that pi-acticable : and where any reference cannot be concluded in a sing day, the Master is to proceed de die in diem, without a fresh war unless he is opinion that an adjournment other cljan dedieindlf^ Would be proper and conclusive to the ends of ju tioe- andwheni adjournment is ordered, the Master is to note 'n< hi.s book the tin and reason thereof." And order 215 provides, that " In no easel any matter to be discontinued or adjourned for the mere purpose j proceeding with any other matter, unless that course becon necessary." When the Master does not think it proper to compel parties to go on de die, he adjourns the warrant to soq specific day and hour, writing the adjournment in his and all the parties who have been served with the wa " to consider" or a warrant to proceed, which has not allowed to lapse, or has not been dismissed are as much bound I this direction for an adjournment as if they had been served »t| a warrant. Order .242 provides, that " Whore pai-ties are not by appointment from the Master, of proceedings to be taken Wtij him, no warrants are to be issued to such parties in relation to same proceedings." And order 243, that " Pai-ties making de upon such appointments, are to be subject to the same conseque as if warrants had been served upon them." FROdEEDINOS UNDER DECREES AND URDBR8. m Order 231 provides, that " A pany directed by the Master to 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, without any warrant or written direction being served for that purpose." The practitioner should take care i hat a waiTant be not allowed to lapse for want of a proper adjournment. An adjournment by the Master keepH the warrant alive, and obviates the necessity of serving the parties anew. Where these are numerous, or where they appear in person, great difficulty is sometimes ancountered through a neglect of this precaution, and the coats occjisioned by it will be thrown upon the party guilty of the neglect. It frequently happens that a party is unable without any fault of his own, to proceed with th»; reference, in such cases it is usual and jroper for the Master to grant an adjournment without costs. Under the old English practice, the attendance of a party upon a warrant was not required until the second, and in mt)st cases not before a third warrant had been served upon him, but here everj- warrant for attendance before the Master is to be considered ftreemptory ; and the Master may upon the non-attendance of the party served proceed in his absence ea; jM'i'te. In case of the non- I attendance of the party who has taken otit the warrant he cannot proceed ex parte, but must allow it to lapse. In such a case he will at the request of the opposite party in attendance enforce costs as I already mentioned. In order to proceed ex parte he must be furnished with proof of service either by affidavit or admission of service of the warrant if there be one. If the attendance be as an adjournment made by himself, and noted in his book, no such proof is of course required. 4. Parties Entitled to Attend in the Master's Offi.ce. The party conducting the cause in the Master's office must take care that all parties entitled to attend any proceedings under the decree or order have due notice of service of a warrant in the manner already stated. Who these are, where the parties are numerous, and their interests complicated is not always an easy I twk to ascertain, and the following general rules will be useful Ui I the practitioner in pointing out to him the parties who ought to have notice of the proceedings in the Master's office. 752 PROCEKDINQS IN THE MASTER'S OFFICE. w 'i! I ^4 s ? The General rule of the Court appears to be, that all partial beneficially interested, either in the estate or in the fund in question are entitled to attend before the Master on all those proceedinini I which may afi«ct their interests, or increase or diminish their proportion in the fund : thus all parties entitled to a distributive share of a residue are entitled to attend on those proceedings which tend to increase or diminish the residuary fund. ■ M ' '1 'I ■■ This rule, however, is subject to some limitations, if the fund distributable under a will is sufficient, — thus, general legatees odIj are allowed to attend on those proceedings which strictly atfect or I relate to their legacies, and not on the general proceedings ; but ifl the fund is net sufiicient to pay the legacies in full, they ml entitled to attend all proceedings which relate to or may affect the I fund out of which they are to be paid.* Parties entitled only tuthe personal estate are not entitled to attend those proceedings whichi affect the real estate alone ; and the converse of the rule prevenUi those interested solely in the real estate from interfering withl proceedings relating exclusively to the personal estate, supposin always that these proceedings have no collateral bearing on eachl other ; for if either fund may be affected by the deficiency of the| other ; each party may be indirectly interested in both, and is then entitled to attend.^ An executor, as the legal representative of his testator, is entitle to attend on all proceedings relating to the chai'ges of creditoi seeking payment out of the personal estates ; but, after therel has been a report of debts, if all the parties interested the personal estate are before the Court, he is only entitled to attend on those proceedings in which he is personally interested as accounting party.' If-". Trustees are not allowed, (except in proceedings carried on bjj themselves,) to attend before the Master in cases where all th^ cestui que trusts are before the Court ; but if there are any partiei in esse, or who may come into esse, who may become interested, i 1 i Smith, 161 ; vide etiam, ChiUingworth T. ChiUingtoorth, dted ib. p. 200. 2 i Smith, 101. 8iM1.10S. , PROCEEDINOH UNDKK OFXREES AND ORDERS. 753 vho0e interests ai-e only represented by the trustees and is not too remote; the trustees will be entitled to attend the proceedings iffecting those interests.* : Parties having charges on an estate or on a fund, are, if the estate or fund is sufficient, entitled only to attend on the proceedings bnmght in by themselves ; but if there is a deficient fund, each incumbrancer is entitled to attend on the charges of those incura- lirances who claim a priority over him, but not on those who do not charge to be of a prior date to his security.* The same rule applies to creditors coming in to prove their debts under a decree. The above restrictions are adopted for the purpose of protecting the party or the funds upon which the costs of the suit will eventually devolve, from being put to expense, by the unnecessary attendance of paiiies before the Master ; and the application of them \s geneially regulated by the Master to whose discretion it is left. By the 217th order, above referred to, the M&ster, strictly speaking, is bound, where it can be done, to point out, at the attendance upon the warrant, "to consider" the course of proceedings under the I decree, who the parties are that are entitled to attend him, and in I cases where he may be in a situation to do so, at such attendance, it Is very desirable that the terms of the order should be complied I with. It is obvious, however, that, in many cases, this would be impracticable ; but as the order does not preclude the discussion of thJB pomt at any future stage of the proceeding, and the Master may, at any time, entertain an objection to a party attending before him, on the ground, that his interest does not entitle him to do so at the risk of throwing the expense of his attendance upon the fund or the party to be charged with the costs. If the Master, upon an objection being made to the attendance of a party before him, is of opinion that such attendance is inadniissable, he may refuse to mark the attendance of the solicitor of the party in his book, which will [have the effect of depriving such solicitor of the costs of such attend- l&noe upon the general taxation of the costs. , If the Master should be considered to have come to an improper jconclusion in not allowing a party to attend before him, the proper I course to obtain the opinion of the Court upon the point would be \nid. 1 754 PR(X)BBDIMOS IN THE MASTER'S OFFICE. to appeal. On one occasion, an application by motion appears u> have been made to the Court, on the ground that the Master hwi refused to mark in his book, the attendance of a solicitor, and the motion was ordered to stand ove^, that the Lord Chancellor might see the Master, when the object of the motion appears to have bf>en obtained, and it was not mentioned again.^ One of several parties being out of the jurisdiction and alleg<>d by the bill to be insolvent, a decree to take the accounts and wind up the affairs of the partnership has made in his absence ; and be after the decree had been carried into the Master's office returned to this Province, and was, by order of the Master, made a party defendant in his office. From this order the defendant so added appealed. Held that under order 42, of the orders of 1853, S. 15, the Master had authority to add such party in his office, and the appeal was dismissed with costs.* Unless where the parties to be chai|;ed are too numerous to be made parties to the bill, or there is some other special reason, Order 42 of the orders of June 1853 is confined to cases where no direct relief is sought against the |)arties to be added, or where the object is to bind their interests by the proceedings in a mamxer similar to what is provided for by the 6th of the same orders.' Where a Mortgagor had conveyed his Equity of redemption, to the trustees of his marriage settlement in trust for his wife fur life, the remainder to his children, and a bill of foreclosure was filed after his death against the trustees and widow, to which bill, the children being infants, were not made parties ; the Court granted a decree containing the usual reference to enquire whether a sale or foreclosure would be more beneficial to the infants ; and gave liberty to the Master to make the infants parties in his office if he should see fit.* On a motion for a final decree of foreclosure, it appeared that in proceeding under a decree several persons were made de- fendant^ in the Master's office, whom the Court thought were unnec- essary parties to the taking of the accounts directed ; the motion was refused, and the costs caused by making such unnecessary parties were ordered to be deducted from the plaintiffs bill ; the amount then appearing to be due was ordered to be paid in two weeks, or in default foreclosure.' 1 aTumwAV. us. t Patt0r»on t. HcUand, 7 Onat, 66S. Order 844 ii a copy of thb order. 8 Bolph V U. C. B, Soe 11 Grant, S76. DiOuon V. Drtptr, 11 Orant, 878. Him T. brook, 1 Cham. R. 71. T ♦! PROCHEDTNnS ITVDRn DECRBES A!n> ORDERS. 70.) appean Ui Master hbd tor, and the eellor might « have been d alleged by nd wind up and he after imed to this y defendant lealed. HeU' \ Master had appeal was I charged are 8 some other s confined to J to be added, oceedings in of the same ^redemption, his wife for ure was filed lich bill, the irl granted a her a sale or i gave liberty if he should 1, it appeared (re made de- ; were unnec- the motion unnecessary rs bill; the paid in two It w to 1)0 noticed tliat tho Master has not only the powor of mtricting tlieen made, and allsucii iurther c«)sts as are oeeasioned to any of the parties by his being represented by a , are entitled try take copies of them.^ ,; The rigiii; to take copies of proceedings in the Master's Offift-. extends not only to the copies of such mattei's brought in hy th- plaintiff, but to such as are brought in by the co-defendants; an-i. in fact, the right is solely- regulated by the influence of the j>ri,- ceeding upon the estate or fund, and the interest of the jtart) claiming to atten«l in the result of that proceeding.- •4. Making or Addivg Parties in the Master's Ofjire. Order 24-4> provides that "Where, in proceedings U'fcuv the jMaster, it appears to him that some persons not alrea^ly |j8rtie> ought to be made jiarties, and ought to attend, or be enabled w attend the pro'ieedings before him, he many direct an office C()|»y«f the sanie to be served uj>on such pai*ties ; and uixm due ser\ice thereof such parties are to treated and named as parties to the suit. and are to be bound by the decree in tlie same manner as if thfv had l>een originally made parties," And Order 245, that " The office co})y of a decree directed to It- served under Order 24-4 is to be endorsed with a notice to the etfitt set forth in schedule L to these orders, with such variatioa>. at circumstances required." And Order 24G, that " A party served with an office co|)y of a decree under Order 244 may apply to the Court, at any time within fourteen days from" the date of such service, to discharge the onler, or to add to, vary or set aside the decree." ^ The practice as to adding parties in the Master'.s Office in Mortgage suits is peculiar, and will be dealt with specially The rule regulating the adding of parties, and the distinetioii between adding them, and merely serving them with notice of i\k proceedings before the Master are clearly laid down in EmjMi v Englishf in which it was held that where the usual deem- i> 1 2 Smith, 100. •J -1 Smith, 101. o 12 Urant, 441. PROCEEDINGS UNDER DECRKKS AND ORDERS. /.>/ obtained by one of an intestate's next of kin for the adniiiuHtration of his personal estate, the Master is not to make the otlier next of kin parties in his office, but is to see that all have been served with an office copy of the decree, under Order C, of June 1853' before he rewrtu, and generally sjieaking, before he proceeds with the reference. In such a case, the Court may dis|)ense with service of the decree, on any of the next of kin, who are out of the Province, and the applicatit)n for this purpose n)ay l)c maile ex parte. So when the decree is for the administration of real estate, all the heirs iiiustlje served with an office co})y of the decree, hut arc not to be wulejKiHies, or served with the proceedings in the Master's office : though any of them may by notice, require to be served if they desire it. The rule is tlie same when some of the next of kin or heirs are infants. Order GO before referred to, and Order 587 may lie reproduced here. The first j)rovides that " In all the above cases, the persons who, according to the practice of the Court, would !« necessary parties U) the suit, are to be served with an office copy (if the decree ('unless the Court diHi)enses with such service) endorsed with the notice set forth in schedule A hereunder written and after such service, they shall be bound ])y the proceedings in the same manner as if they had been originally made parties to the suit : and upon service of notice upon the plaintiff, they may attend the pro- ceedings under the decree. Any party so served may ai»ply to the Court to add to, vary, or set aside the decree, within fourteen days from the date of such service." - r This order was found inconvenient as the i)ower to dispense with the service was confined to the Court ; to remedy this Order 587 was promulgated which provides that The Master may, while liroceedings are pending in his office, and where he deems it advisable, appoint guardians ad litem : and he may also disi^euse with service of the decree upon the i)ei-sons referred to in Order GO : and in such case he is to state the reasons thereof in his report." Although the bill is pro confesso the defendant may api)ear in the Master's office, and cause mesne incumbrancer to be made parties, although there is no reference thereunto in the decree.^ Or, he may appear and show that the amount atlvanced on a mortgage was less 1 Order 60 dtsplaoes this Older— thoro iire sliyht dtfrereiiceii between them, but these du rot affect . /,'''• ^uwrtlou now under diNCUHiiioti. I Cmtron v. /.yne*. 1 ch»m. Aep. 4S. ^58 PROCEEDINGS IN THE MASTER'S OFFICE. than tlie consideration expressed in it.* He cannot, however, set up usury in such a manner.'* Creditors or other parties proving debts or claims, are only entitled to attend in the proceedings brought in by themselves.' 5. Production of Docuvnenta in Master's Offixx. The practice in England was to insert in the decree a direction that the pai-ties should produce before the Master such deeds, books or papers as he should direct. This is usually omitted in the decrees of our Court, as it is provided by Order 222 that " The Master may cause parties to be examined, and to produce books, papei-s and writings, as he thinks fit, and may detennine what books, pajM-p and writings are to be produced, and when and how long they m to be left in his office ; or in case he does not deem it necessaiy that sue!, books, and papei's or writings should be left or deposited in his office, he may give directions for the inspection thereof, by the parties requiring the same, at such time and in such manner as he deems expedient." The discretion of the Master is limited by the rules which guide the Court in compelling a discovery and produc- tion of documents in other cases.* The Master may make this direction at any time during the reference. It is usually made during some sitting on a wan-ant, but any party may apply for a warrant ex parte, at any stage of tiie proceedings before him for production. The time given for pro- duction in such a case varies from two days to as many weeks,' according to the circumstances of the case. Order 226 provides that " Under every order, whereby the deliv- ery of deeds or execution of conveyances is directed, the Master is to give directions as to the delivery of such deeds, and to settle conveyances where the parties differ, and to give directions as to the pttrties to the conveyances, and as to the execution thereof ;" and Order 230, that " Where directed, copies, abstracts of, or extractB from accounts, deeds, or other documents and pedigrees, and cou- cise statements are to be supplied ; and, where so directed, copies are to be delivered as the Master may direct." 1 P«nn T. Lookvood, 1 Grant, 647. 2 Ihxd. Z Hare v Rott, 2 Ves. Sen. 651. 4 2 Danniull'8 Prao. 472, nute («). ft Wlioro the Order Ih to deponit with the Clork of RouordH and WritH ur with i the time I* ten days, by Order 134, but thU U nut blndlnK upon a Maater, Deimtj-Begiitrw, ^"^^^mfr PROCEEDINGS UNDER DECREES AND ORDERS. 759 Under these orders, the Master has a right to require, by direc- tions made in his book at any sitting under the reference, which the prodacing party is attending, or has been duly notified to attend, or by his warrant, that all such documents as he shall think proper shall be left in his office, and a refusal to leave them in pursuance of such direction or warrant is considered as a disobedience of the order of the Court, and may be treated accordingly. * The war- I rant should be underwritten — * ' T» produce before me, , and depotit in my office, under oath, aU such deeds, books, o'^d papers as are in the custody or power of the relating to the matters \ referred to me, on next.** If any particular * documents only are required, the underwriting should be varied accordingly. * ' ■ • ■ • ' ■ 6. Mode of Proceeding to Obtain Production. i|i Where a warrant is issued, it is to be served in the usual way : it k a two-day warrant. Where directions have been made, no seiTice I is requisite. The directions entered in the Master's Book may be in I the form following : " And I direct that do, on or before next, produce and leave, under oath, in my office, all books, 8, papers, and writings in his custody or power in any manner \relating to the matters referred to me." At the time appointed, sea/rc^ /or the papers and affidavit, and if the documents be not deposited, the {Master icill certify the fact, and on this the party requiring the pro- Uwtian may proceed to attach the party in default. The Master's certificate should be dated on the day the motion comes on to be heard, where the proceedings have been had in Toronto, and where they have been had in an outer county, at the latest time possible loanable the party moving to produce it in Court when the motion comes on. ^ Formerly, the practice was tc obtain an order nisi on I the Master's certificate, but now, in lieu of an order nisi, notice is I to be given of the motion for an order absolute. • And where the application for such order is made, by reason of default in produc- tion of books and papers in the Master's office, or in the office of 1 ^•'"'fy V. Earl Ferrers, 1 M. & C. 804 ; Siddenr. Leddiard, 1 Sim. 888 This latter oue expramly dwides that the order to produce involves an order to leave. It may here be mentioned that an oner to produce cannot regularly be taken out after decree ; Cottle v. Vantittart, 2 Cham. R. 396, . i.^.ir.r ^m ' *•. ^«P*jn»on v. Leaeh, 8 Swan. 98 : Carleton v. Smith, 14 Ves. 180 : SomerviUe v. Joyce, 1 Doiiutj-Regw'fW, ^ Clam. R il02, 1 Con. 0. 0. No. 296. ThU Is a four uletr da/i notice : K$Uv v. 9mitk, I Oham. R. 864, 7C() PROCEEDINGS IN THE MASTERS OFFICE. !*4 't the Clerk of Kecords and Writs, or in carrying in accouuts, serviic of the notice of motion upon the solicitor of the party required to I obey the same, is to he sufficient service. ^ ttt If an affidavit be filed, but the documents be not deposited, it is in the discretion of the Master to grant the certificate.^ But where I insufficient accounts are produced, the Master should issue a war- rant calling on the parties for better — before he certifies.' If the party is prepared to bring in the books and papers as re- quired, he makes and files an affidavit similar to that used on the production of documents. If there is reason to suppose that the producing party has not made a full disclosure, the usual com-se ii \ to examine him upon his affidavit. * It may here be stated that the Master has jurisdiction in mat- ters in his own office, and will not be interfered with on a motion | in Chambers. An order to be directed to him to deliver up hjh, &c., in his hands was refused. ^ If the party ordered to produce requires further time to enablel him to do so, his solicitor should attend upon the return of the! warrant, or at the time appointed by the Master's directions, andj apply for time to do so according to the circumstances. It may here be mentioned that the certificate of a Master as to I the non-production of documents, cannot be contradicted: and! that, where the Master certified that the writings were not delivered I in, but the Clerk in Court offered to prove that they were delivered j in, the Court would not suffer any averment to be made contrary! to the certificate. ^ It is the practice here in cases where the! party orderrd to produce declines to produce all or some documentsj in his possession, but states in his affidavit the reason of such non-l production, for the Master to decide upon the sufficiency of thel reason. If he thinks it insufficient, he states so in his certificate,! and the remedy of the party, if he thinks the Master in error, is| by appeal from the certificate, or by moving to discharge it. 1 Con O.O. No. 206. 3 Henna v. Dunn, 6 Mad. 840. 8 Merkley t, Cauelman. 1 Cham. R. 202. _ . .^ • ^,,„ 4 The pnotiee u to this is similar to that adopted in examining a party on bis affidavit oi piw>" tion before decree. 6 Selmn v. Gray, 2 Cham. R. 464. U »el. Ca. in Cha. 6 ; 2 Uarr. Ed. Nvwl. 404, n. ¥ PROCEEDINGS UNDER DECUEES AND OllDEIlS. 701 ils»ffid»vlto»p»ii" A contempt incurred by the non-production of documents, pur- to a Master's warrant or direction under a decree or order, can only be cleared in the same manner as other contempts, i. e. : bv producing the Master's certificate of the jDarty's having deposited the documents required, and moving to discharge the process upon payment of costs. .■! , , • It may here be observed that besides the process of attachment, I the party in default is exposed, in severe cases, to a writ of seques- tration, but the practice on this point is described in another When the booke and papers are brought in, they should be de- I posited in a secure box, where all parties wishing to inspect them, I or make extracts therefrom, are permitted to do so, on taking out le proper warrant for that purpose. ^ In practice, this warrant is rarely taken out — but sometimes the I solicitor producing requests the Master not to permit inspection without notice. In such cases, the party desiring inspection serves a warrant on the party producing, underwritten : "To inspect the books and papers produced by you on the " This is a - two-day warrant, and the parties, as well as the Master, are entitled I to the usual fees on an attendable warrant. In the absence of this Bcial request, the practice is to allow any party interested to I inspect, the Master charing as for a search, and the party inspect- jing being entitled only to a common attendance. As soon as the purposes of discovery are answered, the docu- ments will be ordered by the Master to be re-delivered to the pro- |ducingparty.2 , . . Yiheie the party ordered to produce admits in his affidavit on [production that he has certain documents but declines to produce them, he must, in the affidavit, state the grounds of his objection. It is the duty of the Master to decide upon the validity of the ex- cuse oflfered, and this involves a knowledge of the rules which gmde the Court as to the production of documents. The princi- I pies are the same whether the party be ordered to produce by the IBenmtt, 80. i See Dunn v. Dunn, 3 Drew. 17 ; 18 Jur. 1008 ; on ap|)«al, 7 De O. M. Jt 0. 207 : 1 Jur. N. S. 122. s ?^;- iki^Li.. '* 7(52 PROCKKDINOS IN THE MASTER'S OFFICE. UBual order to produce, or by the Master under a warrantor byhj direction, and these will be discussed in a different part of th treatise. 7. Ei'ulence in Master's Ojice. ' Where the Court directs an enquiry into a fact, it is in the natu of a new issue joined, and what would be evidence in any otheJ case will be evidence before the Master. ^ The parties in the cause are, therefore, at liberty, in an enquir in the Master's Office, to make use of all the proceedings which ar^ of record in the cause, whether they be pleadings, such as bills) answers, Sec, or in the nature of evidence, such as the depositionJ of witnesses, or affidavits which have been made use of or filed oq former occasions. The pleadings in the cause may be used befon the Master, for the same purposes that they can be used for before! the Court, viz. : as admissions by the pa? ;y on whose behalf theJ are filed. They cannot be made use of as evidence for or againsJ any other party ; thus, where the answer of one defendant, againslj whom the bill had been dismissed, was permitted by the Master I be read as an affidavit against another defendant, and the Master'^ report was excepted to on the ground that he had so done. Lord Langdale, M. B., allowed the exception : his Lordship observingj that certainly there is no rule more distinct as to evidence tbau this, that it ought not only to be evidence in a matter in issue m tween the parties, but it ought to be the evidence of a person diii| interested and giving it for the purpose of declaring the truth, upon the occasion on which it is adduced, but thai the answer is ao answer which is put in to a bill, is put in by • r^'^fcndaut for thel purpose of maintaining his own interest ug^^.ii > -r,i; of the plainj tiff, not for the purpose of declaring the ir . as a disintereste witness between two other parties who are in contest together.- f: The Master may also allow any parties who are competent fo] that purpose, to admit any given facts to be true, and it is directed by an old order of the Court, that if, before the Master, eithej party, by his counsel, clerk, or solicitor, admit a matter of factJ 1 SmUh V. Althxu, 11 Vm. 664. 8 iioare v. Johnttons, S Keen, 658: K»mp v. Wad; U>. 088. ** PKUUKED1^•G^^ UNDKU DKCIIKES AND ORDERS. 763 be Master shall take a m^moraudum thereof in his book of tiutes or memorandums, and the party admitting shall, in his jresence, subscribe such minutes or memorandums ; which sub- briptioDs shall be conclusive to the party on whose behalf the Qe was so subscribed, so as the other side shall not be put to any of of the mattej. * ! It is to be observed, that the Master ought to take the admissions such parties only as are competent to make them, and that ipither infants nor married women will be bound by admissions to heir disadvantage. - . • The right to use the proceef^ings in the cause as evidence before hiaster upon a reference before him, must be understood to be ibject to the same rules and restrictions as govern the admissi- ilitv of similar evidence before the Court ; but if the proceeding I really tlie character of evidence upon the matter directed by the [fcrre to be enquired into, it may be received as evidence before the aster, whether it was made use of at the hearing or not. '^ It seems, 0, tliat the depositions of witnesses in another cause, between ^e same parties, may be read before a Master without an order to wit it. ^ In Luhiere v. Genou, * the Master of the Rolls made I order for the reading of the depositions in a cross cause, on an icotmt before the Master, directed in the original cause ; but it is ! observed that in that case a difficulty was suggested, arising bm the circumstance that the cross bill had been dismissed. ^ I Our Order 175 directs that "A party shall be entitled, upon iice without order, to use depositions taken in another suit, in es where, under the former practice, he was entitled, upon ig the common order for that purpose, to use such deposi- tas." jAnd here it is necessary to call the practitioner's attention to the H that, m strict practice, wherever a reference to a Master is ■ected by a decree or decretal order, under which it becomes nec- I Pnc R«g. 364. The propriety of adberini^f to thia rule is exemplified by what took place in East ' India Company v. Keighley, 4 Mad. 16, in which cohb the discussion before the House of Lords ra principally upon the point, whether the Master's report tliat certain admissions were made . ,,*''"* h'™. could be the subject of exception ; as to which, vide Lord Eldon's judgment, ib. I'm* Smith v. ^lUAiu, 11 Ves. 664 ; for this reason, where the proofs In a cause merely go to *»r!re or discharge a party in a matter of account, when the liability to account is admitted, • m is essary to establish facts by the testimony of living witnesses, m testimony oughi to be obtained by examination of tlie witness and that a Master cannot, in any case, proceed upon an enqnji before him upon affidavit, unless by consent of all parties, as eflfect of proceeding upon affidavit is to deprive the other side! the power of cross-examination. * For this reason it is, that t| Master cannot, strictly speaking, receive affidavits under a decn in which an infant is concerned. ^ And where a reference been made to the Master, under the decree, of a question of legilj macy, and the Master proceeded upon affidavits obtained h America, the Vice Chancellor, Sir J. Leach, on a motion for purpose, directed the Master not to proceed upon the affidavit! but gave the parties liberty, under the circumstances, to apply i the Court, if by death or otherwise it should become imposeili to obtain, under a commission, the evidence of the persons vl| had made the affidavits. ^ Oihbs V. Payne * is sometimes cited as if it warranted the Ma ter in directing that evidence should be received by afi instead of its being viva voce : but that decision was made undj an order requiring the Master, when considering the decree, point out whether the matter requiring evidence shall be provj by affidavit or by examination of witnesses." We have no ordj as extensive as this. In that case the Master had not, on tf consideration of the decree, decided to admit affidavits, but aftel wards admitted them, although they were objected to ; it was helj upon exceptions to the Master's report, that, as the Master omitted to decide, at the time of considering his decree, wheth the proofs should be by affidavit or examination, the practice mained as it was before the issuing of the order, and that exception must be allowed. Mr. Daniel ^ makes the foUowinp mark in this case : ** From the report of this case, it appears | if the Court considered that the 61st Order^ empowered the Mast at the time of considering his decree, to determine upon the mission of affidavits, even where there was no consent by other parties — aed qtuere." It will be observed that, in this ca^ 1 RowUy ▼. Adanu, 1 M. & K. 645 ; and vide WUlan v. Willan, 19 Ves. 690-3. i But if the infant's solicitor concurs in the use of affldavito, the infant will be bound. 3 TiUotwn V. Margrave, 3 Mad. 494. 4 4 Sim. 554 ; 3 L. J. Oh. 40- 58 Daniell'i Prac 487— note o. The Order above dted. ^ ?1 I'ROCEKDINUa UNDKR DKCREES ANI> ORDERS. 7«') fee admission of the afl&davits had been expressly objected to by [e opposite party. It does not appear, however, that a positive gent to reading affidavits is required ; the mere circumstance at a party has allowed affidavits to be used without objecting to m, will be sufficient to prevent his afterwards raising an objec- lon to the Master's report, . on the ground that the witnesses to have been examined viva voce. * Where a Master had refused to allow evidence by affidavit, which j VBS contended he should have allowed, held, that this was such I exercise of his discretion as would require an appeal against it be made to the Court, and not to a Judge in Chambers. * i In England, witnesses who had been examined in the cause re not allowed to be examined as to the same matters by the line party under the decree before the Master without a special er of the Court, and the reason for this restriction was " the inger of perjury, which would be incurred by a witness deposing second time to the same fact, after having seen where the cause nciies, and how his testimony bore upon it, and the anxiety the Court, therefore, feels to prevent improper tampering ith witnesses, and inducing them to retract, or contradict, or ex- in away what they have stated in their former examination upon second." ' tm: I No order is necessary in our Court, but it is presumed that the aster here would be guided by the principles laid down by the jnglish judges in dealing with applications for this order. In peral, the Courts in England will not, by its order, sanction the aster in examining a witness already examined in the cause, as I matters upon which he has before been examined, * unless in m where the first examination had failed accidentally, and with- ht fraud, by reason of his then having been incompetent, as in WordY 5 in which case a witness had given evidence Wer a release executed by him, which, by mere accident, did not fver a very small debt due to him, in respect of which he was Morgan v LewU, 1 Newl. 333, ! . C. r. 370. 7fi0 PROCEEDINOS IN THE MASTER'S OFPICR <■«■ ^1 I ■* i''y iuterested at the time of his examination, and was, therefore mi competent ; and the Court made an order for his re-examinatio before the Master upon the same point.* • ' ' Where the reason upon which this rule is founded doesnniei the rule need not ])e observed ; thus, where the witness lias b^ oxaminf'd oulj' to prove exhibits at the hearing, he may be exa ined before the Master to prove other exhibits. It is also to observed that the rule applies only to prevent a witness frombeinj re-examined by the party who examined him before, and that does not affect the case where a witness, who lias been examiiw by one side before the hearing, \h examined by the other sideaffn the hearing. He is not, in such ease, called for the purposf mending his evidence given be'ore the hearing ; and if he docj mend it, he is adverse to the party who calls him. ^ With respect to the power which one party to the record has examine another party as u witness before the Master, it h to observed that the admissibility of a party as a witness deptujJ upon the same rules and principles as the admissibility of partiej to be witnesses before the hearing. For information upon tliij part of the subject, the reader is referred to another part of tliij treatise. It was the practice in the Master's ofl&ce in England fortlij party intending to examine witnesses to carry into the Masterl office a state of facts, detailing the circumstances which he inteuj ded to prove. Our Order 229 declares that no state of facts sball be brought into the Master's office ; and here, so soon as the iieej essary accounts are before the Master, he proceeds to take tii| evidence viva t'oce. The depositions of the witness are taken in writing in the fir person, by the Master, and, after being read over to the witnesjj are signed by him. It frequently, occurs that on hearing his depoj sitions read the witness desires alterations made. If the U&m feels clear that the witness gave his evidence as he had taken ij down, he should not alter it by erasure or interlineation, bill should add the new statement of the witness to the end of m depositions. The object of this practice is to place before th^ 1 See alto Callow r. Mine*, t Vera. 473. 2 Metjbrd v. Peteri, 8 Sim. 630. PROCEEDINGH ITNDKR DECREES AND ORDERS. 7«7 Lourt (in case of appeal) as clear a view as possible of the state- nents of the witness ; for a witness who varies his evidence in nportant points cannot bo trusted as implicitly as one who, hav- Qg made a statement, adheres to it. • The Master at Toronto^ has jurisdiction to direct evidence pro- ed to be used on an enquiry before him to be taken before a er in an outer county, though not consented to.' It is the tice, also, to use before the Master the depositions taken before oy Examiner of the Court ; and Oj Ut 221 provides that " •Under I order of reference, witnesses may Ite examined before any Exam- ^er of the Court : and foreign commissions for the examination of fitnesses without the jurisdiction of the Court, may, on the cer- jilicate of the Master, be issued by the Clerk of Records and Writs, \pmdpe" In moving for an order ffjr a commission to exam- I a witness abroad, with a view of using his evidence in a pend- ; reference to a Master, the proper evidence on which to obtain oh order is the MaHter's (Certificate, and not an affidavit as to the et8» i In order to compel the attendance of a witness before the Master. pbpana is taken out and served in the ordinary way ; and if the [itness is required to produce books or papeix, it is filled up as a MH tecam. The rules governing the examination before the ister are the same as govern the Court at examination terai : and are given in another part of this work. It may here be noticed that where the evidence given before a ster is conflicting, his judgment on it is, in general, accepted by (Court as correct, and not to be reversed on appeal;* Imt the jmrt intimated in, the case that Masters should be careful not to ch too much weight to oral testimony in opposition to evidence [fectsand circumstances. The Court will not interfere with the etion of the Master in deciding on the relative veracity of wit- es, where evidence has been taken viva voce before him. Where I Master refused to open a case where the evidence was closed, the ground that the applicant had not made such a case as enti- 1 him to a new trial at law, the Court sustained his ruling.^ in J An^HU presumed each Local Mastop. l» '■ This proceeding is discontinued in our Court, and instead, th party brings in his claim, or account. For instance, in a mortgd suit for foreclosure or sale, the plaintiff brings in his account of tli( money claimed by him to be due on the mortgage : — in a redemp tion suit, the defendant brings in a similar account : — in a partneij ship suit, both paities bring in statements of the partnerehij dealings, shewing theii respective claims or demands upon paHnership assets : — in an administration suit, the executor administrator brings in a statement of his receipts and disbun ments on account of the estate, and the creditors send in statemenlj of their claims against it. The practice in these and anali cases will be pointed out under their respective headings, but it mij be well here to refer generally to the rules regarding these portioj| of the Master's duties. . It was formerly necessary to state in the pleadings many matti with which the Master is now permitted to deal without any sjiecilj reference having been made to them either in the pleadings or i the decree. Order 219 provides that "To enable the Master I exercise all, or any, of the powei-s conferred upon him by, or to i the accounts and make the enquiries referred to in the follov Orders, it shall not be necessary that any of the mattere therej mentioned shall be stated in the pleadings, or that evidence then shall have been given 'before the order of reference, or that tH order should contain any specific direction in respect thereof. Ksijffjm PROCKEDINOS UNDKU DKCUKKS AND OliUEUS. 7Ul) Ap4 Order 220, that " Under an order of roferenee, the MaHter have power — " 1. T(» take accounts with rests or otherwise ; "2. To take account of rents and profits received, or which, but for wilful neglect or default, might have been received ; , " 3. To set occupation rent ; " 4. To take into account necessary repairs, and lasting im- provements, and costs, and other expenses properly . incui-red otherwise, or claimed to be so ; " 5. To make just allowances ; " 6. To report special circumstances ; "7. And generally, in taking the accounts, to enquire, adjudge, and report as to all matters relating thereto, as fully as if the same had been specially referred." [Where an order for the administration of a deceased person's ate is granted u])on the application of any person beneficially erested therein, the decree will not contain a direction to enquire I to wilful neglect and default. ^ The Master would, in such a case, der the orders just cited, be at liberty to enquire into wilful neg- > and default. Where an executor or administrator applies for I order to administer the estate of the testator or intestate, the ount will be directed to be taken of what he has received, or |iich, but for his wilful default, might have been received. ^ In I a case, also, the Master has the power to enter into the question [wilful neglect or default without any mention being made of it |the order. py the old English practice, a " state of facts " was brought into [Master's ofiice, where an account was to be taken; but Order I provides that " Where any account is to be taken, the account- I party is, unless the Master otherwise directs, to bring in the in the fonn of a debtor and creditor, verified by affidavit. g^W MCn with the fact to be ascertained, that it is not iMissilJ to decide upon the one without giving an opinion as to the dthei In sucli case, the Master is bound to give his opinion upon tlielaJ as well as upon the matter of fact referred to him ; as in the case j a reference to a Master to inquire whether a good title can bt; nia to land, &;c. The most usual cases in which enquiries as to persons are direct* to be made by a Master, are those in which it is necessary toascer the heir-at-law (jr next of kin of a deceased person. The same of inquiry i.s also frequently directed for the purpose of ascei-tainiJ the individuals fomiing a particular class. A similar iniiuin- also necessaiy where it is referred to the Master to taki' an aaoiii of the debts due by a particular individual, such account involvid necessaril}'-, an inquiry who the creditors are, as well as int/t tl amount of their claims. Our Ordei- 223 directs that " The Master may cause ailvertd ments for creditors, and if he thinks it necessaiy, but not utherwi^ for heirs or next of kin, or other unascertained persons, aud representatives of such as are dead, to be published as the ciicu stances of the case require : and in such advertisements he is I appoint a time within which such persons are to come in and pml their claims, and within which time, unless they so come in, are to be excluded from the benefit of the decree." Where the Court is called upon to administer the estate of ( who has made an assignment for the benefit of his creditors it| usual in the decree to direct the Master to ascertain and rep upf)n the amounts due to the creditors of the assignor ; these i discovered by advertisement. And where it becomes ueceHsaryl ascertain who are the heii-s, or next of kin on an administrationl other suit in the nature of an administration suit, this is also dd by advertisement, where their names are unknown. In an admmj tratiou suit proper, the ordei-s point out the precise mode of pi ceeding ;^ in other cases the proceedings are taken under Order 21 10. Proceedings to Advertise for Heirs, next of Km or Credi/ij Wliere a direction is tnade to inquire for heirs at km, m kin, or creditors, tfie Master on considering the decree, or ail 1 Ordar 487, •( mq. PROCEEDINOS UNDER DECREES AND ORDERS. 773 ikrtit«)j/ afienclaiice on a vmrrant directs an advertiaement to be [jyde^f in f^iwte newspaper published at or near the place where miiien are .mpposed to be, or ivhere the Ancestor lived. It is i\ial to publish this three weeks, but the particular time is entirely tk discretion of the Master, who will he guided by the circuin- ances of each case. In the case of creditors who have signed a of composition, or an assignment for the benefit of creditoi-s, U whose places of business are known, it is usual for the Master i direct that a printed slij) of this advertisement be mailed to them. riie limitation of the day is made in compliance with the order lich, as we have seen, directs that parties who do not come in id j)rove tlieir debts, or otherwise establish their claims l/cfore it ves, shall he excluded the benefit of the decree. It seems, bow- er, that notwithstanding this peremj)tory direction, no objection be offered to the reception of a charge or claim, by the Master, ivided the same is left before the report has been signed. And it, afterwards, although such charge cannot be entertained by the .ster, the Court will let in creditors, or next of kin, at any time lie the fund is in Court. ^ And even where the money had been portioned amongst the creditors (the assets being deficient), and iferred to the Accountant General, to pay them and the costs the suit, a creditor, who swore that he was not aware of the de- e, was allowed, on motion, to come in and prove his debt, upon lyinent of the costs of the application, and the expense incident the same, in recasting the apportionment of the property amongst ; creditors. ^ In Gillespie v. Alexander,^ after the creditors> had proved, had been paid their debts, and the residue had n ordered to be apportioned amongst the legatees, another credi- obtained leave to go in and prove his debt ; but in the meantime fund was apportioned, and out of it some of the legatees re- ived the shares due to them on account of their legacies, and the iiider was carried over to the account of the other legatees, ami ird Eldon held, that the creditor was not entitled to receive the lole of his debt out of the funds of the other legatees remaining Court, but only such part of it as should Ijear the same proportion the whole, as the legacies given to those legatees bore to the Um«(* V. flM», u Ves. 802. MV«T. Uadion, 1 Maa. 680. M Bum. 190. « 774 PROCEEDINGS IN THE MASTER'S OFFICE. J ■I s: whole amount of the legacies given by the will. His LordshiJ howover, reserved permission to the creditor to apply to the Coup as he might be advised, against such of the legatees as had receive payment on account of their respective legacies, and directed thq he and the legatees, out of whose funds he was to be paid in should be at liberty to apply to the Court, according to their reai^J tive rights and interests, with regard to the testator's estate remaiil ing outstanding, as and when the same should be gotten in aiil received. It is to be observed, that when a decree directs enquiries as the next of kin, creditors, &c., it is not usual for the Master, in report, to notice any creditors except those who come in under i decree. He merely states the claims which have been proved, tali ing no notice of the possible claims of others, who, whether entitla or not, did not come in.^ Where, however, under a decree directii an account of the proceeds of a joint adventure (pronounced up a bill filed by one partner on behalf of himself and all the other in which an enquiry was directed as to who were concerned wl^ the plaintiff in the adventure, with the usual direction as to adve tisements, the Master not only reported those who had come in,! proceeded to state the names of several other persons, who, thou they had not come in, were nevertheless considered by him entitlj to shares of the fund ; the Master of the Rolls, Sir W. Grant, further directions, decreed an account to be taken, not onlyj what was due to those who had come in, but of what sums hj been paid by the defendant, before the suit was instituted, to other persons who were reported to be entitled to shares, but wj had not come in, and of what remained in the hands of thedefeii ant, beyond what had been so paid him ; but Lord Eldon appears! have held that part of the decree to be wrong, and to have cons ered that, by analogy to the case of creditors, the parties, who not come in, ought to be excluded from the benefit of the decree, j In the above case, Lord Eldon observed, that it was clears analogy, that if creditors did not come in, and were excluded frj the benefit of the decree, " that would not prevent another having due regard to costs," &c. With reference to this observatij it may be observed, that the rule of the Court is, that the distril comem It is ISteOao IKeei iGUUipu 3 Famll Bro. C. Dick. I Good V, m-intt, 19 VcB, 3Sfi, PROCEEDINGS UNDER DECREES AND ORDERS. 775 tion of property, under the decree of the Court, amongst persons fjund by the Master's report to be entitled, does not conclude the rii'hts of persons who have an equal or paramount title to those amongst whom the distribution has taken place/ such are only precluded from taking the benefit of the decree under which the distribution has been made, and they may, notwithstanding that decree, file another bill against the persons who have taken the property under it, to compel them to refund. Thus, after a distri- bution of the estate of a deceased person has taken place under a decree in a creditor's suit, a creditor, who has not come in under the decree, may sustain a suit against the creditors in an inferior or in an equal class with himself, to compel them to contribute, out of ffiiat they have received under the decree, towards payment of his demand. So, after a distribution of the property of an intestate, amongst the persons who have been found by the Master's report to be the next of kin of the intestate, persons claiming to be next nf kin, either in opposition to, or conjunction with, those amongst whom the distribution has been made, may maintain a suit against them, for the purpose of compeUing them to refund what they have received. Such a suit, however, can only, after a distribution, under a decree, be filed against the parties who have partaken of the dis- tribution ; it cannot be filed against the executor, or administrator, or other person who has acted under *he direction of the Court in distributing the fund,^ for the Court will not permit a party who has acted in pursuance of its decree in distributing a fund, to be afterwards charged for what he has done pursuant to its directions ; therefore, after a distribution of assets has taken place under a de- cree ascertaining the rights of legatees (in pursuance of which advertisements have been published for all persons interested to come in and prove their claims before the Master), a bill, filed by a legatee against the executor, to render him liable for what has been distributed under the decree, will be dismissed, although it appears that the legatee filing the bill was ignorant of the former decree and proceedings.* It is to be observed, however, that although a party making a 1 See David t. Frmd, 1 M. & K. 200 ; OWespie v. Alexander, 3 Russ. 130 ; Sawyer y. Birehmore, 1 Keen, 391. J OUleipie v. A lexander, vbi tup. 3 Pamll T. Smith, 2 B. & B. 337 ; see also Pooley v. Ray, 1 P. Wnis. 866 ; Brooke r. Eeynolde, 1 Bro. C. C. 183 ; 2 Dick. 603. S. U. : and Dougias v. Clay, 1 Diok. 804 ; Kenyon v. Wortnxngton, 2 Dick.ees, 770 PIKX.KEDINGS IN THE MASTERS OFFICE. ilistribution une obsei-vcd, that when a party, who has not come in I under a decree, seeks to compel those who have benefitted by the distribution which has taken place under the decree to refund, he cannot proceed against one only for the whole amount of his de- Land, but he must proceed against them all, in order that they may all be compelled to contribute in proportion to what they have re- ceived;' and upon this principle the Court acted in Oilleapie v. \ Alexander,- before refen-ed to, where a partial distribution had taken place under the decree, amongst some of the legatees, and there were left in Court certain funds, which were directed to be appropriated to the legatees who had not been paid, and afterwards a creditor obtained permission to go in before the Master, to prove his debt, which he proved accordingly, Lord Eldon was of opinion that the creditor was only entitled to take out of the fund in Court, which had been appropriated to the payment of the unpaid legatees, such a proportion of his debt as the amount of the legacies unpaid 1 bore to the other legacies, which had been paid. The principle in Itiilkspie V. Alexande)\^ was afterwards acted upon by Lord Lynd- hurst, in Crreiy v. Sonvncei^ille,^ in which a suit had been instituted to administer the i)ei'sonal estate of an intestate, and the Master reported that uo debts had been proved ; whereupon a decree was made, on further directions, in 1817, apportioning the whole residue amougst the plaintiff and the other next of kin. The plaintiff* being an infant, his share, amounting to four- ninths of the fund, was re- tained, and carried to his separate account; and, in 1825, a foreign prince claiming to be a creditor of the intestate, petitioned for leave to prove his debt against the fund which had been carried to the separate account of the plaintiff", who, coming of age soon after, ap- plied to have the fund paid out, — upon hearing the application. Lord Lyndhui-st held, that if the debt should be established, it must be restricted to the proportion which the plaintiff's share bore to the whole amount distributed, and after reserving a sum equal to I tour-ninths of the claim, he directed the residue of the fund to be out to the plaintiff*. A creditor or other claimant desirous of coming in before the ilaster to prove his debt or to establish his claim, after a report has 1 Oa«d V. Fnnod, tibi it«u. 2 3 Rusg, 130. "' f Puss. 130. *1R. *M. 338. I ,%f 778 PROCEEDINGS IN THE MASTER'S OFFICE 4' P • 5 TTjjjli. ! Ti m T i been made, must move the Court, stating the reason of his not hav- ing come in within the time limited by the advertisement, ain! praying to bo at liberty now to establish his claim ;* this motion must be supported by the affidavit of the claimant. Where a person, who claimed to be a creditor, but had omitted to come in under the decree, resided out of the jurisdiction, and peti- tioned to have his claim referred to the Master, the Court made the order, upon his giving security for the costs.^ The creditor may be cross-examined upon his affidavit.' In allowing costs to creditors the Master is to allow to each creditor the costs of proving and attending on his own claim only.* Our | Order 225 provides that " The costs of proving such claims are, in the discretion of the Master, to be allowed to the creditor 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 I place of taxed costs." With regard to the enquiry as to the heirs or next of kin, any person, at the time appointed by the Master and inserted in the advertisement, who believes himself to sustain either of these] characters, files liis claim and affidavit supporting it. This affidavit, however, is not to be received as sufficient proof, this claim must he I subsequently established by proper viva voce evidence, unless, by j consent, affidavits are used instead. A person claiming as heir at law, shows his title by means of a pedigree, which pedigree is proved by registers of burials and births, i and the parties named in the certificates are identified with thej peraons through whom the claimant derives his title. Where it isj impossible to obtain this strict proof of pedigree, entries in family I Bibles, inscriptons on tombstiones, and even the declarations ofj deceased relatives are, under circumstances, received as evidence. The succession to real property is regulated by the laws of the countr)- where the land lies.® 1 2 Smith, 270. ' ' ' 2 Drever v. Mauderiey, 6 Rnss. 11 3 Ctut V. Poyier. 28 L. J. Ch. S68. 4 Hare v. Rose, 2 Yes. S. 658. 6 See chapter on Evidence. e Brodu T. Bturry, 2 V. & B. 131. PROCEEDINGS UNDER DECREES AND ORDERS. 779 If a party seeks to establish his claim as one of the next of kin of an intestate, he proves his relationship to the intestate by the same description of evidence as is used to prove heirship. If one claimant hae established the genealogy down to a certain person, any claimant may take up his proof from that point. 11. Proceedings after Advertisement. At the time appointed by the advertisement, attend at the Master's office; produce and file an affidavit of its due publication, and of the slip having been mailed {if this direction were made), and the Master will proceed on the claims, or on the evidence as to the heirship, or relationship. Our Order 224 provides that " The Master is to proceed on the claims brought in before him, pursuant to such advertisement, without further notice, and may examine witnesses in relation thereto at the tiine appointed in the advertisement, or thereafter, as he sees fit ; and he is to allow, or disallow, or adjourn the claims, as to him seems just." A person coming in to claim, under a decree as creditor, must bring in an affidavit shewing the nature of the debt or claim. Su£h affidavit, however, is not intended as evidence to the Master, in ■proof of the debt, and must not be used by him as such. " The mean- ing of the practice is, that a person shall not come here and claim a debt, without giving that assurance that it is due, which arises from his affidavit, which, also, if the debt is contested, affords a protection against the conclusion from other evidence that it is due, when the contrary may be within the knowledge of the party him- self ; but where the debt is contested, no attention is to be given to the affidavit."! It may be mentioned, in this place, that a plaintiff in a credit- or's suit, will be required to prove his debt before the Master, under the decree ; 2 and where the decree directed an account of the es- tate of the plaintiff's testator, come to his hands, and of his debts, , ft 780 PROCEEDINOS IN THE MASTKR'S OFFICE. 'I ,1 tlie plaintiff as a creditor to prove a debt due to himself, Lord Hardwicke directed that the plaintiff should be at liberty to <^o i;, before the Master and prove his debt, and that the Master should examine him relating thereto, notwithstanding he was a party.> If it should be found necessary to examine any witness, either for or against the claim, such witness may be examined. It seems, hoAvever, that in supporting charges in the Master's oflfice, the strict rules of evidence are, by mutual understanding, frequently dispensed with, and that bonds, deeds, notes, and other securities, are almost invariably proved by affidavit, recourse being had to the examination of witnesses in very contested cases only, or where fraud is suspected.* It may be observed here, that where a person, not a party to tht suit, carries in a claim before the Master, under the decree, the party representing the estate out of which the claim is made, lius a right to the benefit of any defence which he could have made, il a bill had been filed by the claimant in equity, or an action had been brought at law to establish such claim. Therefore, as we have seen, an executor may, in the Master's office, set up tht Statute of Limitations as a bar to a claim by a creditor under tht decree, provided such claim was within the operation of the statute before the decree was pronounced.^ So, also, if it is objecte(^ tlmt a person is not a creditor for a valuable consideration, that ques- tion may be entered into in the Master's office, and afterwards come before the Comi; upon appeal.* With reference to the effect of the Statute of Limitations, in barring a claim brought in by a creditor under a decree, it may be mentioned that in Sterndale v. Hankhison,^ it was determined that where a bill is filed, by a creditor, on behalf of himself and all others, every creditor has an inchoate interest in the suit from the moment the bill is filed, and, from that moment, time does not run against him ; so that a simple contract creditor, coming in under a decree made in such a suit, was admitted to prove, althougii " ■ >-•< ' ■-/■■ '-' /-.■.:;■.;,,-:■:. :,>: u<'.^-:>m .i;: 1 Seuiman v. Norrie, 1 Dick. 269 2 2 Smith, SOI. 3 It seems also, that the Statute may be set up in the Master's office as well by another creditor or legatee, as by the personal representative : Shetoen t. Vanderkont, 1 R. & M. 347 : ifd qutry, whether it can be set up by the Master? ibid. 4 Per Lord Hardwicke, in Peaeoek v. Monk, 1 Ves. 127—131. 6 1 Sim. 8»8. JIW "^ PUUCEEDINUH UNUEK DECllKKS AND ORDKRS. 781 there had been a lapse of moiit than six years between the fihng of the bill tiud the decree. It is to be observed, however, that the case occurred before the statute,* and that the claimant was, moreover, a creditor by simple contract. Since that period, how- tver, the statute 3 & 4 W. 4, c. 27, s. 40, has been passed, which uperates as a positive bar to all actions, suits, or other proceedings, for the recovery of any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity , or any legacy, but within twenty years next after a present right to receive the same shall have accrued, &c. ; and it has been held that a petition for leave to go in under a decree, to prove a debt before a Master, is a proceediuff^ within the meaning of the above section.^ The effect of the above alteration in the law, therefore, is to prevent all debts being proved before the Master, under a decree, after the period limited by the above section, in cases where they operate as charges upon land or rents and all legacies, leaving, however, the case of simple contract debts upon the footing on which they stood previous to the statute. ■ii .i4- ,f,. Where the Master is satisfied that the claim is properly made' out, he marks it in bis book as " allowed," and it will then form an item in his report,^ and the opinion of the Court upon the pro- priety of the Master's determination may be taken by appealing from the report allowing the claim. With regard to the costs of parties proving claims or accounting in the Master's office, our Com't has, by a series of orders, changed, in several material points, the old practice in England. These will be pointed out when the method of taking accounts be- fore the Master is enquired into. Where the plaintiff, sueing on behalf of himself and the other next of kin of an intestate, alleges in his bill, but does not prove, that the next of kin are too numerous to be made parties by name, the Court will either allow the cause to stand over, or will direct an enquiry by the Master as to the next of kin.* 1344W. 4,c. 27. 2 Berrington t. Evant, 1 Y. & Col. 444 ; a. 24 of U. C. C. SUt. Oh. 88 is a co])7 of this Motion in th« Imp. Stet a Bennett, 64. «J(«M«{iiMmT. AiM(«r,30tsnt,168. ,. •782 I % i I 5: S. .rr»i>j. PROCEEDINQU IN THE MASTER'S OFFICE. 12. Enquiriea as to Legacies and Annuitiea. It is to be observed, that the course of proceeding by advertise- ments to invite persons having claims to come in under a decree is resorted to in those cases, only, in which it is unknown who the parties are, who may have such claims, or rather where it is pos- sible that claimants may exist besides those who are already known. When all the persons who can claim are ascertained, or capable of being ascertained, without such a proceeding, it will, of course, be unnecessary to resort to it ; therefore, when the Master is ordered to take an account of the legacies or annuities given by a will, no advertisement neeu be inserted in the public papers for such legatees to come in (unless the legacy is given to persons con- stituting a class, in which case it may be necessary to ascertain, by advertising, who the parties constituting that class are), because the legacies or annuities will appear by the will. If any of the legatees have been paid, it is necessary that their receipts, for each legacy, or other proper evidence of payment, should be produced, to authorise the Master to report that such have been paid ; and the same observations will apply to annuities.^ It may here be mentioned that legatees are not necessary par- ties, defendants, in an administration suit.' And no interest is allowable in respect of arrears of an annuity.^ 13. Method of Taking Aocounts in the Master's Office. The Master having on the warrant ** to consider " directed the accounting party to bring in his account on a certain day named in the direction and cuLered in his book, the party so directed is at the time appointed to bring it in verified by affidavit. Our Or- der 227 provides that the accounting party is to bring in his account in the form of a debtor and creditor account. It is usual for the Master in partnership cases, when considering the decree, to proceed upon Order 228, which provides that " The Master, if he thinks fit, may direct that, in taking accounts, the books of account, in which the accounts required to be taken have been kept, or any of them, be taken as prima facie evidence of the truth 1 Bennett, 60. 2 Harriton v. Shaw, 2 Cham. R. 44 3 OoMtmith y, Qoldnnith, 17 Qrant, 218. Ml PROt'EEDINUS UNDEU DECUEE8 AND OBDEllb. 7«a of the matters therein contained, with liberty to the parties inter- ested to take such objection thereto as they may bo advised." On the warrant " to consider," the Master makes an entry in his book reserving further directions. The account havinj-; heen brought in with an affidavit which is to be referred to as an exhibit, and is not to be annexed thereto, ^ it is usual for the opposite party to bespeak a copy before proceed- ing upon it.* Tho opposite party is entitled to time to examine the account and affidavit to ascertain whether or not they are prepared in conformity with the directions and practice. The Master has power to direct how and at what time the party object- ing shall make his objection ; but it will be found that on the whole it is more expeditious and less expensive to appoint a time when the parties shall attend before him for the purpose of object- ing. This is better than appointing a day "to proceed," because on such a direction the accounting party may suhpasna witnesses ; and if it should appear that the account requires amendment, in- convenience and loss will follow. If, at the time appointed for objecting, no objection be made, the Master then appoints a time to proceed. Where the account is not in the form prescribed, it is in the discretion of the Master to certify that it is insufficient, and the accounting party may be proceeded against for contempt in the usual way. But this course should not be taken unless the party is contumacious. The account having been properly brought in, the next step, according to the usual practice as laid down in the books, is for the opposite party to surcharge. This is done where it is thought that the accounting party has omitted to charge himself with monpys or property which he has received, or but for wilful neg- lect or default he might have received ; the proceeding is called "surcharging," and the notice required to be given to the account- ing party is called a "surcharge." The "record" to be tried before the Master is, in reality, incomplete until this is filed; and the practice has been to require it to be filed before the account is proceeded upon ; but it will be found moie convenient in most 1 Ord. 227. t Frnons sntttled to attend hare a right to take copies of all writings and docun) mts brought into the Master's office by any party to the reference, 2 Smith. 112 ; out they mu. t be suppfied by the Master, othei wise they wiU not be allewed on taxation. H if ' It*;. M ■fti 784 PROCEEDINGS IN THE MASTERS OFFICE. 'J:S C ^ casefl for the Master to direct, on the warrant " to consider," tha* the parties be at liberty to surcharge when the accounting partv has closed his evidence on the items of his account ; because it frequently happens that the information on which a surcharge can only be framed is obtainable in no other way than on an investi- gation in the Master's oJBfice of the accounts. The consideration. 1 therefore, of the " surcharge " will be deferred until the praciice on the accounts is explained. The next appointment, where the items of the account are nu- merous, should be "to query items." The object of this is to 1 ascertain, before expense is incurred in preparing proof, what items the opposite party will admit. Order 232 provides that " Befort proceeding to the hearing and determining of a reference, the Master may appoint a day in the meantime, if he thinks fit, for the purpose of entering into the accounts and enquiries, ^vith a view to ascertaining what is admitted and what is contested be- tween the parties." And Order 233, that " Where the Master lias omitted to appoint a day for the purposes mentioned in Order 232. he may grant to the party bringing in accounts a warrant to pro- ceed 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 for t.i" purpose of enforcing admissions where they can be made without detriment to the interests of the objecting party, Order 234 pro vides that *' Where it becomes necessary to adduce evidence, or to incur expenses otherwise in establishing or proving items .' 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 the party lias refused to admit, the Master,- before making his report, is to pro- ceed to tax such costs, occasioned by such refusal, as shall appear to have been reasonable and just, and shall state in his report the amount of such costs, and how the same were occasioned." And Order 236, that " The party to whom costs are payable under Order 234, is to be entitled, upon the Master's repoii. becoming absolute, to the process of the Court to compel payment thereof. as in other cases." Order 236 provides that " Where the party entitled to receive the general oosts of the cause is the party ur- a X"' PROCEEDINGS UNDER DECREES AND ORDERS. 785 dered to pay costs under Order 234, he is at liberty to deduct such costs from the general costs, where the general costs and the in- terlocutory costs are between the same parties." It may be mentioned here, that a party conducting an account I before the master is not limited to one charge. If, after his charge is allowed, he discovers other items, with which the accounting party is chargeable, he may either amend his charge, or carry in a further charge, and this he may do as often as may be necessary. In }fapier v. Staples,^ in Ireland, under decree for an account, the plaintiff bad examined the defendant on three successive sets of interrogatories, and had filed a charge, which he amended three times, and had then sued out a commission and examined wit- nesses. Ee aftsrwards filed a further charge, and, after various delays, applied to the Master of theEoUs for liberty to file a sixth, which was refused; but, upon appeal, the Lord Chancellor, Sir A. Hart, gave him leave to file it, observing — " I am not aware that there exists any rule, such as has been assumed, that, in taking the account, a uniform series of proceedings is to be followed — a charge, discharge, and examination, and the subject is then dropped." " It is not the course, in England, to comprise every thing in the first charge ; on the contrary, in the majority of cases, the plaintiff, after he has brought in his charge, looks to the ex- lamination of the defendant to furnish him with further items ; the Court always taking care, and this is the true principle, to indem- nify the opposite partj', and to guard against vexatious irregularity, by making the party pay all the costs incurred through his irregu- larity or delay." His Lordship afterwards said — " I do not lay liny stress upon the point, whether the plaintiff knew of the exist- lence of this item or not ; I think that it is not material. Equity Itould not deserve the name, if it acted on a form to shut out a IJMt claimant, because he came late, whether his doing so was joptional or involuntary. But the same equal justice that admits Ithe plaintiff's further charge, gives the defendant a further oppor- Itunity to dis"'^arge himself, and the order must be so. The de- jfendant must have an opportunity of explaining his case, by evi- Idence, and his denial of the receipt of this sum, by affidavit, will have very great weight in determining it."' '^ HMolLlU. ilMoILttL 26 yl i| ^H 'I ^ f . ^ ,! 786 PROCEEDINGS IN THE MASTER S OFFICE. 14. Proceedings in the Appointment to Query Items. At the time appointed, the Master enters in his book the items to ht\ vouched by their numbers and amounts, thus : Proceeding in Schedule A Filed : No.l $100 00 No. 2 200 00 No. 3 300 00 y-\ ■ It is, of course, convenient to have the whole schedule thusj entered at once, as this saves trouble in referring to it subsequently;! but where the items are numerous, this is sometimes difficult! to do. If No. 1 is allowed by the opposite party, on examining the! voucher offered by the accounting party, the Master marks it withj the word "Allowed," thus: No. 1. — Allowed. .$100 00 If the voucher for No. 2 is not satisfactory to the opposite party] or to the Master, he marks it thus : No. 2 ?$200 00 It may here be remarked that there are four marks which m Master will find it convenient to adopt— " ?"— "V"— 'Allowed " and "Disallowed." The first is used as already mentioned ; thi second is used when such evidence has been given as makes good prima facie case in favor of the item, and on which theitei will be allowed, unless the. opposite party rebuts the case n and this mark "V" (meaning "vouched") will stand until th item is fully disposed of, when the mark "Allowed," or "Disall lowed," will be substituted, as the case may be. The marl " Allowed" is not used until all the evidence affecting the item given, and the Master, after discussion, gives his judgment on it this, so far as he is concerned, is final, unless he sees fit, on cam being shewn, to review the item, or receive further evidence. mark "DisaUowed" is used in the same way. PROCEEDINGS UNDER DECREES AND ORDERS. 787 Many of the items in the Master's Book will, at the end of a I reference, have attached to them the following marks, if this prac- I tice be followed : No. 1.— Allowed V ? $100 00 No. 2— Disallowed V ? 200 00 -for when such evidence is given upon a general item as amounts ioprima facie proof, the Master draws his pen through the "?," and adds the letter " V" — and when the item is allowed or disal- lowed, he draws his pen through the "V," and adds the word "Allowed" or "Disallowed," as the case may be. Where the account has been queried, the Master appoints a time "to proceed." This means that the accounting party is then to I adduce evidence to establish the items of the account which have been queried. The "account" is spoken of in the English prac- I tice as the "discharge." The account is vouched by the production of the proper vouchers, 1 such as receipts, &c., which documents, when produced, are marked by the Master with the initials of his name, as a token of his in- spection or allowance of them. It seems that the party producing vouchers does so at his peril, and that the Master is bound to admit tbem in evidence, unless the other side can lay a reasonable ground to shew that the voucher in question can be impeached, of which [the Master is to judge. ^ In a case in Ireland, Sir Anthony Hart, L. C, states the prac- Itice in England, where the item exceeds 40s., for the executor to produce the voucher, and to verify, by affidavit, the payment of I the sums therein specified ; and then, if no objection is made, the ister gives the executor credit in the account. But if any party objects, the Master then requires the affidavit of the person who jreceived the money ; and if this cannot be had, he then requires Itlie affidavit of some person to verify the signature of the houcher. * . , , , It is to be observed, that the necessity for producing the proper Iwuchers in support of the discharge, is not removed by the cir- I ^9/Lonidale v. Wordtuorth, JW May, 1789 ; cited Bennett, 86. ' ' ' ' ; , '. 788 PROCEEDINGS IN THE MASTER'S OFFICE. I ;^^' ^Jjjjjj^" cumstance of the defendant's answer, in which the items are sworn to, not having been repHed to ; although, in other cases I an answer which has not been replied to, is to be taken as true. The Master must, nevertheless, require the vouchers to be pro- duced.^ It may be mentioned here, that the ordinary course of proceed- ing upon discharges in the Master's office, is by affidavit ; and though, in strictness, in cases where infants are concerned, all evidence should be upon examination vice voce, yet still, if the so- licitor for the infant acquiesces in the reception of affidavits, the | infant will be bound by it. In a case in Ireland, before Sir A. Hart, L. C.,^ where an infant was interested, an order appears to I have been made by his Lordship to restrain the defendant, who was an executor, from issuing a commission to examine witnesses in aid of his account, and he was ordered to verify, by affidavit, | the several vouchers on which he sought credit. If the defendant does not attend and support the queried items, or crave further time, the whole of such items may be disallowed by the Master, or he may direct a further warrant to be taken out to give the party an opportunity of setting himself right before hej proceeds to disallow the payment.' • Although, strictly speaking, every payment insisted upon in the discharge, where it amounts to forty shillings and upwards, mustj be esta))lished by ,a proper voucher, sums under forty shillii may be substantiated by the oath of the accounting party.* ThisI rule appears to have been adopted from analogy to the rule at 1 in accounts, and as it is not sufficient at law, that the party shouldj swear, to his belief only, that the money has been paid, but must swear to the fact ; so, in accounts under decree in equity, it] is not sufficient to swear that he believes he paid the money, butj he must peremptorily swear to the fact.' \ .- ■ - r * . ■ -f V " ' • t " ■; -".'"■- 1 Davenport V, Davenport,! Sim. bl2. 2 Young v. Reynolds, 3 Moll. 21 n 3 2 Smith, 121. . , „,., 4 Anon., 1 Vera. 282 ; Marshfield ▼. Weston, 2 Veni. 176; Bingham v. Lady Clanmorru, 1 Mou-l 20 ; Mverard v. Warren, 2 Cha. Ca. 249 ; but althoui:h a defendant In account shall be di8Cli»n:M| hy his oath of sums under forty shillings, a party shall not, by way of charge, charjfeanotwtF (i party so. ibid. ; see also Marahfield v. Weiton, 2 Vern 176. In Whieherley v. Whtmmi. i| Vem. 470, the Court having been informed that the course of the Court was, that an »e«<"">JX| was to be aUowed, on his own oath, all sums not exceeding forty slkiUlngs each, so '*' ™*. v:| sum was not above £100, declares the rule seemed very unreasonable, and would consider now »| rectify it. . I 5 Robinson v . Cumming, 2 Atk. 409—410. And, au executor may support his disobarge by »w«»niij| to his beUef that sums under forty shUliugs were paid ',. his testator liimself. proceedi:tgs under decrees and orders. 789 But although it is the general rule that every item in a dis- charge, of forty shillings and upwards, must be supported by a proper voucher, there are cases in which a party has been allowed to discharge himself by other means than the ordinary vouchers ; thus, where the evidence in support of a charge, consists of entries in books kept by the party himself, the party has a right to make nse of entries in the same book in support of his discharge ; * and 80, if a paper is produced by one of the parties, from which he takes his charge, the same paper may be read by the other party by way of discharge : ^ thus, where an account furnished by a party before any suit instituted, is ^produced to charge him with I the items on the debit side, he is entitled to resort to the credit de in support of his discharge.^ This rule is adopted, in equity, from analogy to the rule at law, which provides — ** that if, to prove a debt, it be sworn that the defendant confessed it, but withal said at the same time, that he paid it, his confession shall be valid as to the payment as well as that he owed it." Upon this principle, it is held, that where a man, by his answer or examination, admits that he has received certain sums, which sums he had paid, &c., the discharge following in the same sentence, that will be sufficient to discharge him.* It is to be observed, that it is considered necessary, in order to I entitle the party charged by his own answer, to read such answer in support of his discharge, that the discharge should be by the I same sentence with the charge. If it occuiu in another part of the answer, it cannot be made use of ; ^ and it has been held that a I party charging himself in a schedule to his answer, cannot dis- I charge himself by another schedule to the same answer, stating 1 disbursements ; ^ a fortiori is he precluded from discharging himself, in this way, by affidavit.' And it seems that it is not only necessary that the discharge should be by the same sentence j with the charge, but it must form,- as it were, one and the same I transaction. In Thompson y. Lamhe,^ Lord Eldon said — "I am 1 Dtnton v. Earl o/Ox/ord 1 Bq. Ca. Ab. 10 pi. 9. I iMrttr r. Lord Colrain, Bamardlst, 126, acknowledged to be correct, 2 B. & B. 896. * j mrdimm v. Jaekton, 2 B. & B. 382. j mtvay V. Danrin, 7 Ves. 404. f mxtuon V. Seotney, 19 Ves. 682. 5 wanimon v. Jaek»^^< ' 1 4 Qnham v. Oraham, 1 Ves. 362. V.n'^H '• *'Con». 1 Cham. R 88. i; ftn«a«U T. Moon, 6 U. C. L. J. 143. II S™"**^ ▼■ Parks, ibid, 142. 1 8 SnmrtaM t. Parki, « U. C. L. J. 142. y t^iMes^U, ; J t-i ';fV <> ,hv?;>^ •*=*viu. •(tl.;-«-; S- .•*n!\i'< ft tj «- w s: 796 PROCEEDINGS IN THE MASTERS OPPICB. ' The Master, in taking the account, does not, in general, strike m balance till the whole account and surcharge (if any) have gone through ; but, contrary to the English practice, he is, undefl our orders,^ at liberty to make rests in the account. It sometima happens that in decrees directing accounts, the Couil oHers th Master, if he shall find that there are stated accounts, not to disturlJ them ; this direction is usually inserted where a ' d account insisted upon in the answer and proved.'' Where u, settled account! is insisted upon by the answer, but not proved, the order not to i turb the account will be accompanied by a direction that the plaln^ tiff shall have liberty to surcharge and falsify.^ A settled accounJ must, in such cases, be established before the Master in the samd manner an before the Court. 16. Computation of Interest. ' ' A direction to the Master to compute interest upon debts, cies, &c., frequentl}r forms part of the decree. In ordinary suits foil the administration of assets, the direction is, that ' he Master sh& compute interest on such of the testator's (or i ite's) debts carry interest, after the rate the same respectively carry interest,' and upon his legacies, from the time and after the rate directed byl the testator's will ; from the end of one year after the testatoM death.'' ' " " '"'' ' ■"■ "" ' "' With respect to interest on specialty debts, no question can aris Its to its computation, — the rate at which it is to be allowed upod such debts, generally appearing upon the deed or instrument U which the debt is created. '■ ,' ' '■»■,■"'. ' '' /, .■ ::;ii:-.; ' '•'•: J It is to be noticed however, that, with respect to a debt due on boD the rule is to calculate interest up to the amount of the penalty ( the bond;* the Master cannot go beyond the amount of the penalty'l unless the creditor claims upon two securities for the same sum, ona[ of which is a bond with a penalty, and the other a moi-tgage ; which case the Master may calculate interest beyond the penalty < 1 Order 220. - k 2 Cole V. Cok, cited 14 Yes. 679. 8 Kinsman t. Barker, ibid ; and see Polliek t. Perry, 6 Orant, 691, pott. * Setonon Decrees, 61. , 6 Seton on Decrees. 63. 6 Sharp V. Earl of Scarborough, 3 Yes. 667. . . 7 Tew r. Earlqf Winterton, 3 Bro. C. C. 489 ; 1 Yes. J. 461. S. C. Knight v. Maeleait, 3 Bro.a6 490 : Clarke t. Seton, 6 Yes. 411 ; Hughe* t. Wynne, 1 M. & K. 20. T ' •>' PROCEEDINGS UNDER DECREES AND ORDERS. w „ Jfocl«a»»,3Bn).C(l. be bond. It appears also not to be important, in such a case, which struiuent was executed first, the bond or the mortgage,* nor that , party charged executed as a surety only.'^ The rule which limits the computation of the amount due upon I bond to the amount of the penalty, has been held to extend to a ond for securing the payment of an annuity, at least till the deci- Bonof Sir L. Shad well, V.C., in Jeudwine v. Agate f this was gene- ally supposed to have been the result of the decision of Lord Lough- orough, in Mackwwth v, Thomas* but in Jeudwine v. Agate, the nce-Chancellor held that, in point of fact, there was no such deci- linn in Mackworth v. Thovfuis, cind the opinion expressed by his lonor, after looking into the cases was — 'that whenever there is a distinct agreement that a thing shall be done, whether it be the con- eyance of an estate, the relinquishment of a right, the payment of 1 annual sum, or the payment of a sum of indefinte amount, (as in Ihe case of Weinholt v. Logaifif there, notwithstanding the agree- cent appears in the form of a bond with a penalty, the court will onsider that the recital in the condition of the bond is evidence kf the agreement, and will not limit the relief it gives to the amount [if the penalty.'* It is to be observed however, that although his Honor is represented I have stated, that there was no such decision in Mackworth v. 8, as that contended for in Jeudwine v. Agate, he appears to ave meant simply, that the facts in that case were not the same as hose in Jeudwine v. Agate ; and he takes a distinction between ght to retain the arrears of an annuity claimed by an executor, in suit for the administration of assets instituted by a creditor, [(which was the case in Mackworth v. Thomas,) and a substantive ight asserted by the executor himself, in a bill filed to enforce his ght to relief out of the assets, (which was the case in Jeudwine v. i^oAe;) 80 that, in fact, notwithstanding the decision of his Honor in he latter case, the rule laid down, in Mackworth v. Thomas, may be onsidered as still the rule of the Court, in suits by creditors, for the iministration of assets where the claim to the arrears of the an- [luity is made on behalf of the personal representative against whom he bill has been filed, though it is otherwise where a suit is insti- iited by the annuitant himself. 1 .\ir 1 Ctorfe V. Lord Abingdon, 17 Yes. 106. 'lClk.4Fin.611. ^r 3 8 km. 129. 6 8 Sim. 140. j» fe. Vi.w«V> 4 6 Yes. 829. vvp 1 It X--' *■ * 798 PROCEEDINGS IN THE MASTERS OFFICE. Whilst upon this subject, it is right to mention that, till recen enactments, it was held in England that in suits for the adminis tion of assets no interest was to be computed upon a judgment, less an action at law had been brought upon the judgment, to n\ cover interest in the shape of damages ;^ but in Hyde v. Price,* SiJ Shad well, V. C, held, that the circumstance of the creditor hav tiled a bill for the purpose of obtaining the benefit of his judgmena in equity, (the situation of the assets being such as to render a bil the proper remedy,) was equivalent to the commencement of action at law. His Honor also held, that the case was put in a mon , favorable position, by the Act of the 3 & 4 W. IV, c. 42, s. 28,* (bjj V hich it is enacted, that upon all debts or sums of money payab^ at a certain time, or otherwise, the jury, on the trial of any issue &c, may, if they shall think fit, allow interest to the creditor, ati rate not exceeding the current rate of interest from the time whei such debts or sums were payable, if such debts or sums of moneji be payable by virtue of some written instrument, at a certain time or, if payable otherwise, then from the time when demand of nay] ment shall have been made in writing, so as s !' demand shall gi^ notice, to the debtor, that interest will be claimea from the date such demand until the time of payment,') which statute being of J remedial nature, his Honor thought it would be absolutely nece for the Court to adopt as to many of its provisions. All difficult however, as to allowing interest upon judgments has been remova by our Common Law Procedure Act,* which enacts that upon uijj execution against the person, lands or goods, the sheriff may, in i dition to the sum recovered by the judgment, levy the pound fees, expenses of the execution, and interest upon the amount so i covered from the time of entering the judgment. So that now, i action at law, or suit in Equity, is necessary to enable a Master I compute interest on a judgment debt, but interest must be con puted by the Master upon every sum of money due upon judgmem at the rate of six per cent, from the entry of it. Formerly interest was allowed upon the arrears of an annuitjj where they were secured by a bond vath a penalty,' or where 1 1 Gaunt r. Tuylor, 8 M. & K 802. 5 8 Sim. 578. 8 Our Stat. U. 0. C. S. oh. 4!>, s. 2 is the sune in effect. 4 Sec 870. ^ 6 Ntwnwn r. AiUing, 8 Atk. 679. . :If^>V' PBOCEEDINOS UNDER DECREES AND ORDERS. 799 rs of an annuiW auity was given for maintenance/ or where it was left to a by her husband's will* It has also been allowed, where have been great arrears,' or where there has been an obsti- gte delay of payment,* or where the annuitant has been com- by the delay, to borrow money at interest.* The allowance of interest on such arrears, was, however, always eld to be discretionary in the Court; and, in later cases, it has been notwithstanding the existence of circumstances which before Dduced the Court to allow it." In Rohinaou v. CuTfunilng^ Lord iwicke said, there was no instance where the Court had ever arrears upon such an annuity (viz : an annuity secured by at, by way of mortgage, with power of entry in case of arrears), iless, indeed, the annuitant had entered and been in possession of to /v^tate charged with the annuity, in which case the Court would 'ave obliged him to have quitted the possession, unless the awf had agreed to allow him interest for the arrears of his an- nuity, down to the day. This seems to be consistent with the rule lid down by Lord Talbot, in the Countess of Ferrers v. Earl Fer- j,' viz : that ' arrears of an annuity or rent charge are never de- to be paid with interest, but where the sum is certain and fixed ; and also where there is either a claim of entry, or nomine tivE, or some penalty upon the grantor, which he must have un- iergone if the grantee had sued at law, and which would have [obliged him to come into this Court for relief, which the Court will not grant but upon equal terms,, and those can be no other than de- emg the grantor to pay the arrears with interest.' With respect to debts upon simple contract, and other debts ihich do not carry interest upon the face of them, equity, in giving nterest, sequitar legem ; and the Courts will allow interest to be omputed in the administration of assets upon all debts upon ihich interest is given by Courts of law.* Formerly, the rule ppearB to have been not to compute interest in equity, where it I liiton v. Litton, 1 P. Wms. MS ; see also Draper't Comp. ▼. Davit, 2 Atk. ni, _ ,' " ' ,r. - ' Batt«ne.£amtey,2P. WiM. 168. . ,. . < StapWon V. Contcau, 1 Ves. 428. " ' ' . o *^ » Ves. 661 ; Bimal y. Brereton, 1 Dick. 278. •*•«*▼ Barl tif mnt^ten, 1 Ves. J. 451 ; 3 Bro. C. C. 488 S. C. ; Anderton y. Dwyer, 1 Soh. V Imi 301. 't Atk. 411. 8 C» T«mp T»lb. J. ' «*'«mT. Ryhy, 1 Bro. C. C. 289 ; Parker r. Hutekinion, S Ves. U6 ; Upton r. Lord Ferrer$. 6 *«■ 808 ; LntndtM y. CoUeiu, 17 Ve«. 29. ''•? 800 PROCEEDINGS IN THE MASTER'S OFFICE. could only be given at law in the form of damages,^ although M a long time a distinction appears to have existed, and still existg f in favour of allowing interest to be computed upon promissoryl notes, and upon all other sums payable on demand, or on a daTl certain, upon which interest may, according to the practice A Courts at law, be calculated either from the time of the demand! made, or from the fixed period of payment.' It is to be remarked, that, where there has been a stated accountl between the parties, the balance appearing due on such an accountl will carry interest ; ^ because, in such a case, it is held that there! is an implied contract on the part of the debtor to pay, and contracts to pay give a right to interest from the time when th^ principal ought to be paid.* Such balance, however, milst appea upon a regular statement of accounts, and, to constitute such statement, there must be a settlement or acknowledgment by th^ debtor, raising the contract to pay as the ground upon which alon^ interest will be given.^ It may be mentioned here, as a general rule, that a charge o(| debts on real estate does not entitle simple contract creditors interest.® In Barwell v. Parker, Lord Hardwicke is reported have said, that if a man, in his life, creates a trust for the paymen^ of debts, annexes a schedule of some debts, an i creates a trasi term for the payment, as that is in the nature of a specialty, I will make them, though simple contract debts, carry interest.' * It seems, however, that, in order to effect this, the deed mn have been executed by the simple contract creditors, and that thejj must have given up their right to sue the debtor upon his debtj otherwise there would be nothing to shew that they had contract© for a specialty, by taking a security upon the land, and dischargj ing the person of their debtor.® « ■..;■■ ' •- -I^^ 1 Rigby v. Maenamara, 2 Cox. 420 ; Bell v. Free, 1 Swanst. 91. i 2 Lovmdetv. ColUnt, 17 Ves 27; Upton v. Lord Ferrert, 6 Ves. 808 ; Parker v. HittehmiM.\. tup. The Statute before referred to, by authorizing jt^ries to compute interest upon such «« or sums of money as are therein mentioned, instead of giving it in the form of damages '<"*j'3 holding payment, has done away with many of the distinctions formerly existinir "P<"''Jll'P[''{| 8 Barwell ▼. Parker, 2 Ves. 363 , Vernon v. Cholmondeley, Bunb. 119 ; see 2 Gq. Ca. Ab. 531, p. 1| 20 ; Blaney v. Hendricks, 2 Blackst. Rep. 701 ; 3 Wils. 206, 8. C. . J 4 Boddam v. Riley, 2 Bro. C. C. 2 ; 4 Bro. P. C. 661, 8 vo. ed but see Exp. Fumeaux, 2 Cm, n»| and Exp. Champion, 3 Bro. C. C. 436. « Barviell t Parker. 2 Ves. 868 ; EaH of Bath v. Earl of Bradford, ib. 688 ; Lloyd v. WUliuui Atk. 109 ; Hamilton y. Houghton, 2 Bli. 186 ; Shirley v Earl Ferrert, cited •». ; •" Maxwell v. WetUnheM, 2 P. Wms. 26. *' 7 BarwtU r. Parker, ubi tup. : Steteart v. Noble, Vem. It Scriv. 628, 637. 8 HamiUon, v. Houghton, 2 Bll. 186. rfi PROCEEDINGS UNDER DECREES AND ORDERS, 4 801 ■i It may be mentioned here, that, in Shirt v. Westhy,^ a charge, by will, on real estate of the simple contract debts of another per- son was considered as a legacy, and interest was ordered to be computed on such debts. With respect to the rate at which interest is to be computed, the usual rate of interest allowed in this Court, upon legacies and por- tions, is six per cent. In calculating interest, under a decree, the Master usually calcu- lates it up to the date of his report ; but it generally forms part of the decree upon further directions, that the Master shall compute subsequent interest on the debts mentioned in his report, on which he has computed interest.^ ^ . It is to be observed, that the Court never directs interest to be computed on debts not previously carrying interest,^ and that in computing subsequent interest on the debts which carry interest, although it was formerly held that interest, when computed by the Master, became principal, and would carry interest ; * the rule now is, not to compute interest upon interest reported to be due, even in the case of a mortgage,^ though the practice formerly was to consider the interest as principal from the date of the Master's re- port,^ the ground of which practice was, that as the party came for jk favour of the Court ; — he was ordered to pay a given sum on a jcertam day, and if he did not, he was put under terms of paying would indemnify the other party completely J When the Master is ordered to compute interest with rests, the of the Court is to charge the accounting party with com- und interest. It appears, however, that formerly a difference of iractice prevailed amongst the Masters upon this point, and that m of them, at the time of the rests, carried the interest to a irate column, arid computed subsequent interest on the princi- only, and thus charged the party with simple interest only ; le proper course, however, is to add the interest to the principal, it the time of the rest, and to compute interest upon the aggregate i.'- 'Ves. 393. ! S«ton on Decrees, 68. • ? ^KUM V. Hunter, 2 Ves. jun. 166 ; 4 Bro. C. C. 816, 8. C. { »w Bacon v. aerk, 1 P. Wms. 480. 5 Whatton V. Cradock, 1 Keen, 26 ; a';d see ante, 644. ~ » Hjnwr V. Turner, IJ. & W. 47 ; Perkyns v. Bayntim, 1 Bro. C. C. 674 ; and see Broum v. Bark- Mm, 1 p. Wms. 653 ; ButUr v. Duncoinb, 1 P. Wms. 453 ; Astley v. Potok, 1 Ves. 496 ; an4 treiMe v. Hunter, vbi mp. I V'"}*'" ''• Turner, ubi sup. 1 ila}»»a«J V. £oeAm, n Ves. 97, 103. 37 #1 L^. '* 802 PROCEEDINGS IN THE MASTERS OFFICE. * » •.,% ';'^' ^ . Where the defendant was, at the dissolution of partnership, j receive ^£150 more than the plaintiff, and it appeared that settleJ ment of accounts had been delayed by the misconduct of the defenj dant — held, that he was not entitled to interest on the f 150 fron the time of the dissolution.^ To save interest by an appropriation of the purchase money, thJ money should be separated from the purchaser's general bank acJ count, and notice must be given to the vendor.^ Where defendant] had retained moneys, and did not shew that he had deposited then for safe keeping, or kept them in his hands unemployed, he wa held to be properly charged with interest.' .; It very frequently happens that an improper mode of calcolatinffl interest is adopted by parties bringing accounts into the Master'd office, by which compound interest is charged. The true rule o^ calculating interest where payments have been made is laid doi in McGregor v. Gaulin.^ It was there held, that the metho usually adopted in making out an account between debtor an(| creditor, upon a loan of money — viz., that of charging first the inJ terest upon the whole debt for the whole period, as if no paymenlj had been made, then allowing interest upon each payment from tliej time it was made, and so deducting all the payments and interesi from the whole debt and interest — is not the correct way of arrivin at the balance. It is so much in favour of the debtor, that, when there has been a long arrear of interest, and payments made od account by the debtor not covering the interest alone, the debtor] in a few years, without adding any payment in the meantime, will make his creditor his debtor to a very large amount. Per Robinson, C.J.: " It is obvious upon reflection, and 1 won^ der I did not see it when brought to my attenjjion by Mr. Kirkpat rick in another case which I have alluded to, and where it only the difference of a few shillings or pounds ; I believe, never theless, that the mode adopted by Messrs. Baldwin & Wilson often adopted and submitted to ; and where the periods are not loi and large sums have not been paid for interest, it does not mud signify; but in this case the interest on the £400, for nearl; 1 O'Lone r. O'Lone, 2 Grant, 126 ; and see Davidton t. Thirkeil, 8 Grant, SSO< . i G.W. Ji. Co. V. Jonet, 13 Grant, 355. 8 Beaton v. Boomer, 2 Cham. R. 89, 4 4 U. C. Q. B. 878, ' PROCEEDINGS UNDER DECREES AND ORDERS. 803 I twenty years, amounts to ^£440, and goes, in fact, to discharge so much oif the debt, though the defendant did nothing more than merely pay the interest that he ought to have paid as it accrued, had no pretence to receive interest on that payment, because I it had not been the foundation of any calculation of interest against liiinonthe other side of the account." In a year or two more, by the mere effect of allowing to the Idebtor interest upon sums that he had paid for interest, the scale Iwould have been turned against the creditor, and in ten years' Qe, if ihe calculation on the same principle were carried on, the Icreditor would owe the debtor nearly half as much as he had lent |liim, without any new payment being made in the meantime." Ani' n Bamum v. Turnbidl ; ^ " Where various payments had [been made upon a note payable with interest wit always sufficient to \tom the interest due at each time of payment — held, that the usual Imode of adding the interest to the principal, deducting the pay- Iment and charging interest on the balance, could not be adopted, jbnt that interest could only be computed on the balance of princi- remaining due at each payment. Per Burns, J. : " This case I a contract to pay a specific sum, at a specific time, with interest. the payments made had always exceeded the interest due, then here would be no necessity for keeping a separate statement of an nterest account, for it would be obvious enough that any balance ^ue could only be principal. But in this case, where the payment le was often not sufficient to discharge the interest due at the time, then adding the interest, to the principal, and deducting the ayment, and then computing interest on the balance, amounts to, od is a computation of, compound interest. The computation dopted by the defendant is the correct mode — allowing the pay- nent made only to sink so much of the principal as the payment ex- edsthe interest due, and then computing interest on the balance." As the very frequent occurrence of bringirg in accounts so amed as to give the creditor compound interest gives rise to great ficonvenience, since the Master must either delay the proceedings ntil a correct account is prepared, or he must rectify the calcula- m himself in drafting the report, a form of account is appended, pich the Master should insist on being followed in all cases : 1UU.C.Q.B.277. ita^* 48 804) PBOCEEDINGS IN THE MASTER'S OFFICE. Principal due on the mortgage in the bill mentiopod, giyen hy A. B. to C. D., dated 1st January, 1860, securing $1,000, and interest at 6 per cent tiVXli{ Interest thereon to 1st January, 186J $60 00 Deduct cash paid Ist January, 1861 30 00 •30 00 Interest on $1000 from 1st January, 1861, to 1st January, 1862 60 00 ,. , :. .-.• r- ,. ■',■■■'■. ■-''.'<--\ :..'.^. $90 00 Deduct cash paid 1st January, 1862 150 00 $940 ( Interest on $940 from 1st January, 1862, to 1st January, 1863, $66 40 Deduct cash paid 1st January, 1863 500 00 443( r ■■'■'., — — — Interest on $496 40 from 1st January, 1863, to 1st January, 1864 $29 78 Deduct cash paid 1st January, 1864 20 00 Interest on $496 40 from 1st January, 1864, to Ist January, 1868 119 13 ' Balance due Ist January, 1868 Of which $496 40 is principal. " ' It will be seen that, by using two columns, one for principal an another for interest, the calculation is kept clear, and at the the Master sees at a glance what sum is principal on which he i at a future time, be called on to compute subsequent interest- besides, this mode is free from the errors mentioned in McGre^ V. Oaulin, and Barnum v. TurnhuU. , '■, ^;^.; . ' >u V [ 16. Of the Persons who are Bound to Pay and Entitled to Rum Inttrest. Interest is not payable upon a mere contract for lending monej even where the contract is under seal, unless there be an ment express, or implied, for the payment of interest ; and exce^ in the case of mercantile securities, or where the promise to interest is to be inferred from the usage of trade.* 1 Calton V. Bragg, 16 East, 223 ; Higgim y. Sargent, 2 B. & C. S48 ; Page v. iir«wmo»,»B.»| 848. ''-r PBOCEEDINGS UNDEB DECREES AND ORDERS. 806 But upon bond,^ and mortgage debts, interest is payable, though 1 be not expressly reserved, unless the contract expressly provide L conveyance on payment of the principal,^ and where interest tnven, the mortgage is a security as well for the interest as the Lrincipal. Interest has also been given at law, both on appeal and 1 the court below ' in an action on an instrument whereby the debtor acknowledged that he owed a certain sum, for whic^i he had riven a promissory note, payable at a day named, and had deposi- itbe title deeds of an estate, and engaged to execute a mortgage hereof. And it was said by counsel, that in M. T. 1812, interest ad been allowed on a letter promising to give a bond. It has lately doubted * whether a mere deposit of title deeds, with- oat a legal security, will make a debt bear interest which bears none in its nature ; but the anonymous case above cited seems to dispose of the question, unless it be thought that the want of promise to make a mortgage may make a difference. It is, however, well settled,^ that the deposit of deeds alone with intent I create a security, is sufficient to make an equitable mortgage lithout any express agreement : so that to raise a right to interest Qo promise seems necessary. A charge of debts by will, upon real estate, does not entitle limple contract creditors to interest, unless the debtor have given |iothe debt? the quality of specialties in his lifetime, as by making I schedule of debts and creating a trust term for payment thereof.^ the debtor execute a deed of trust for the benefit of his credit- ors, those who execute the deed become mortgagees, and get a tight to interest ; but they have no such right under a mere cove- inton the part of the debtor to pay the debt. If, by the terms the deed, some of the creditors are to be paid their debts, and pthers are to be paid their debts with interest, the latter class ave a priority as to interest.'' Where an award, made under an arbitration, directed the pay- nent of a sum of money on given days, without interest, out of lie proceeds of securities not then realized, and a considerable 1 ftfjtrtar V. ITorrii, 7 T. E. 124. J iwm|»i(m T. Drew, 20 Beav. 49. . . r .:„ ' ^"wi., 4 Taunt. 876. ■..',.. \MUmy. DaUon, 2 CoH. 566. ' J KxparU Kentington, 2 Ves. * B. 83. « Sfwrt T. Noble y^m. & ScrlT. 628—637 ; BarwU v. Parker, 2 Ves. 364. ' •'«*«« T. Perry, 8 Y. & C. 178. 806 PROCEEDINGS IN THE BIASTER'S OFFICE. ^. » time elapsed before the securities were realized, it was held, that although the money was awarded to be paid on certain days, so that interest might be recoverable from those days on the contract ' yet the proceeds of the securities could not, on tiiat account, be made liable for interest, contrary to the agreement, though the debts in respect of which the award was made were debts bearing interest.^ Interest arises on a mortptage from day to day ; ^ but it is said,^ that it ought not to run, in the case of a general and national calamity, during such time as, in consequence thereof, nothing is paid out of the land assigned for payment of interest. The per- son who takes the produce of the security is entitled to the interest to the time of his death, or other termination of his interest ; and the interest of money secured on mortgage has thus been paid over to the administratrix of a tenant for life, though the mortgage money was subject to a trust to be applied in the purchase of land; and it was not taken as rent unapportionable before the Act 4 & 5 Will. 4, c. 22, s. 2.^ The agreement to pay interest up to a certain time does not even at law exclude a contract to pay it after that time ; the reservation of interest shows that the debt was intended to bear interest, and makes it reasonable to suppose that it should continue to do so. So, where, in a mortgage, dated February, 1834, from B. to A., it was recited, that to induce A. to make the advance, C. had agreed to covenant for the due payment of interest, and B. covenanted to] pay the principal and interest in February, 1836, and C. cove- nanted that B. and C, or one of them, during the continuance of | the security, would pay the interest to become due by even half- yearly payments ; C.'s covenant was held to extend to the interest,] so long as the principal remained unpaid.* The mortgagee in possession, who holds over after payment of J everything due to him, will be charged with subsequent receipts, f and interest from the filing of the bill,'^ or from the date of a priorj 1 Low»d«« V. Co«en«, 17 Ves. 27. * .f*^^ 2 CoUett V. Xetonham, 1 Drew. 447. 3 Wilaan v. Uannan, 2 Ves. 672. 4 Bagil V. Aehegon, 15,Viii. Abr. 474 : 2 Eq. Ca. Abr. 611. 5 Edwards v. Wartoiv'n, 2 P W. 171. « Price V. Great Weaterti Railway Company, 16 M. & W, 244 ; King v. GreenhUl, 6 M. ft 0. 69- 7 Quarrell v, Beckford, 1 Mad. 269. PROCEEDINGS UNDER DECREES AND ORDERS. 807 notice if such have been given,^ to pay over his receipts as I directed by the notice. And where ^ a mortgagee denied by his inswerthat the mortgage was satisfied, the assertion being false, he was charged with interest from the time at which he had been I folly paid. If the mortgagor come to the court to restrain the mortgagee from using his remedy at law, the indulgence will only be granted apon payment to the mortgagee of the principal sum and all inter- est which appears to be due to the time of payment ; but in a proper case, the payment of interest may be ordered to be made rithoat prejudice to any question in the cause ; as if the mortga- gor contend that he was prevented from redeeming at the time for I which notice was given, by the negligence or default of the mort- igee. And if such a case be established, the surplus interest may I be ordered to be repaid.' If a scrivener take money and give a note to place it out at in- terest, he is bound to do so, and is answerable for the interest, except so far as the employer may have accepted any security I which he may have effected/ The Court allows the mortgagee interest in certain cases upon money which he has laid out for the benefit of the estate or the support of his security : payments so made being treated as fur- ther advances. Thus, interest will be allowed on fines paid by the mortgagee for the renewal of leases upon which the estate is held, though there be no covenant by the mortgagor for renewal.^ So on money laid out in supporting the mortgagor's title where it has been impeached,' or in the redemption of land tax ; ^ and gene- rally upon money laid out in lasting improvements or otherwise for the benefit of the estate, where the principal so laid out is allowed.^ And interest has been given upon premiums paid for keeping up life policies, to which the security was made subject, under a provi- sion charging the security with payment of all such sums as a iJpMeaemY. Bovu, M'Cle. im. ..,.,, ]'i . , :. • A prior incumbrancer is not by mere laches in enforcing payment of his interest, deprived of his right to that interest as against the | puisne incumbrances, the latter being not without remedy;'' be- 1 Hodgson v. Hodgson, 2 Keen, 704. 3 Wainman v Bowker, 8 Beav. 363. 3 Executors of Fergus v. Oore, 1 Sch. & Lef, 107. 4 Hughes v. Williams, 1 Kay, It., and form of order there. 5 Austen v. DodwelVs Executors, 1 Eq. Ca. Abr. 319. 6 Thornton v. Court, 3 De G. M. * G. 293. 7 Aston V. Aston, 1 Yes. 263. •Mi PROCEEDINQS UNDER DECREES AND ORDERS. 809 } he may redeem and get the estate himself. And this, it is lid even though he let the interest run in arrear with an ill intent I get the estate itself; but if there be fraud or collusion it will be Itherwise.^ The doctrine must be taken to imply, that the puisne ncumbrancer knows that the interest is running in arrear, for Itherwise he would have no warning to exercise his right of re- demption. So, the neglect, without fraud, of the incumbrancer to demand nterest from the tenant for life, will not prejudice his right against lie remainderman.^ The adult tenant in tail of an incumbered estate is not obliged I keep down the interest on the charge ; because, having or being fcyhis own act able to acquire full power over the estate, neither the Bsue in tail nor the remainderman have any equity to call for an Ddemnity against the arrears of interest accrued during the pos- ession of their predecessor.^ • And on the other hand, if the ten- et in tail die without barring the entail, after keeping down the nterest, or taking an assignment of the mortgage (in which case |ie is considered to have pai'^ himself the interest out of the rents Qd profits), the issue in tail have the benefit, and the personal - kepresentatives of the tenant in tail have no equity to charge the Reversion with interest accrued during his life.* .,, And so it is if the husband of tenant in tail seised in right of fcis wile, take in the mortgage, for he takes subject to all the rights nd remedies of the mortgagee and the reversioner, and, after re- ieiving the rents during the wife's life, cannot come against the itate for the interest.^ , . ; . , ,, ,, , But, in such a case, an account will be directed of the profits ficrued since the death of the wife, and subsequent interest will I allowed. ^ An infant tenant in tail, however, being unable to make the es- atehisown, is not upon the same footing as an adult, but is in "" ;;■' ' ..-^■^.^,' 1 1 ftntikam v. Eairuourt, Prec Ch 30 ; Chapman v. lunner, 1 Vern 267- 1 : 7r^. "■ ■>«'/<. 2 Sch. & Lef. 642 ; Roe v. Poggon, 2 Mad. 467 ; Wrixon v. Vize, 2 Dru. k War. 208. I i***2? "■ C^*«P««, 8 Atk. 234 : Burges v Mawbey, T. X R. 167. * Mj'*^»VT. Brown, IVes. 477. " "> _ ■I Ttju-t 810 PROCEEDINQS IN THE MASTER'S OFFICE. the position of a tenant for life,^ who is bound' (as is also the! tenant for years) '' to keep down the interest of the charge durinjl the continuance of his estate, to the extent of the rentu and profits I and who is not exempted from this duty by the possession of ani absolute power of appointment, by virtue whereof he is able like! the tenant in tail, to make the estate his own/ It is incumbent on the reversioner to see that this duty be per-i formed by the tenant for life ; ^ and if it be neglected, the rever- sioner,® or it seems the next tenant for life,^ may file his bill tol make the rents amenable, and may compel the tenant for life to| answer what has accrued. But if the reversioner stand by a allow tho rents to be received and not applied in payment of inter- 1 est, the reversion will be charged, and the reversioner cannot afterwards establish a debt against the assets on the ground that| the rents wjre sufficient.^ The reversion may also be charged, if the rents be insufficient,! and the arrears of interest have thus been thrown upon the rever- sioner, where, having accrued during the time of one tenant fori life, they were discharged by the trustees of a subsequent lifej estate.® ' ' And if the tenant for life of an incumbered estate charge the es- tate under a power, with a principal sum and interest, and then! mortgage both the charge and the interest, and keep down 8omucli| of the interest as the estate will not pay, out of his own moneys, the amount so paid (in the absence of any intention to exonerate)! will be charged upon the reversion ; and the next in remainder j cannot ^^ redeem the mortgage of the charge, without dischargingi the interest so paid by the mortgagor, and ^ r wi he was an j f I 1 Sarjesony. Cruise, cited 1 Ves. 477, 480; S. C. Sarg caly, 2 Atk. 41" ii)dT.4E.lI«;l Burgeav.Mawbey.T.kVim. But note, that Sir ner, M.R.. puts a ng conrtructiMl upon the words of Sir W. Grant, M R., in Bertie v. / Abingdon, 3 Mer. uuti. The Utteriil supposed to liave said that " tliere could be no question to the < ligation of an infant tenintl in tail to keep down the interest." His words really were, "Th o ean be no question in Mil ease with respect to the obli;^tion, &c." i.e , the question does ii arise here. iforthequMtloiil was not between real uud personal representatives, between whom there is no equity, but only I between the representatives and those in remainder. ^1 8 Bevel v. fTatkinson, 1 Ves. 93 ; Ameshury v. Brown, Aid, iTT ; Fauikner v. Daniel, i H»re,uWl Bultoer v. Aatley, 1 Ph. 422 ; Play/airy. Cooper, 17 Beav. 187 ; and see T. & R. 174 ; 19 Jur.iW f 8 1 Ve'. 480. 4 WhUbready. Smith, 3 De G. M. &0. 741. 6 2 Jo. & Lat. 160 ; Kay, 339. 6 5 Ves. 106 ; and see Hayes v. Hayes, 1 Ch. Ca. 223. 7 Bevel v. Watkinson, 1 Ves. 93. 8 19 Beav. 64. 9 Sharahaw v. Qibbs, Kay, 333. 10 Lord Kensington v. Bouvsrie, 19 Jur. 577. PROCEEDINGS UNDER DECREES AND ORDERS. 811 ncumbrancer ou tho estate. And it Heems that if the estate bo Iclearly charged under the power with interest, as well as principal noneys, it will not bo material that tli(i trusts of the terra, limited Ijo secure the charge, relate only to the principal. Nor will any ireight be given, in such a case, to arguments founded upon the liDconvenience of taking the necessary accounts of the rents and rolits received by the former tenant for life. If a mortgagee, who has suffered the interest to run in arrear, purchase the estate of the tenant for life, the surplus rents received [ter the purchase, beyond the current interest of the mortgage, Iffiust be applied in discharge of the arrears ; and the mortgagee jcannot charge the arrears upon the inheritance : ^ for the vendor jnnder whom he claims was bound to keep down the interest. If an estate have been partly in the possession of a tenant for fe, and partly of a person who takes under the limitations of a Iprior settlement (as a jointress), and, therefore, is not bound to Ipay the interest on the incumbrances, the tenant for life must dis- Icharge the arrears, which accrued at the time of the paramount jestate, out of the additional rents received at its expiration.^ The case of Tracy v. Lady Hereford has been stated^ by an leminent Judge to establish the general proposition, that a tenant Ik life m remainder must bear the arrears of interest which ac- jcrued during the estate of a prior tenant for life ; but this con- Istruction has been repudiated as inequitable and unnecessary for jtiie determination of the case in which it was laid down.* The Irule goes no farther than to make each tenant for life bear the jaffears which have accrued during his own time, although during jpart of the time another may have been in possession of part of jUie estate under a paramount title ; ^ and to liquidate sucn arrears m must furnish all the rents if necessary during the whole of his llife; but subject, it seems, to this equity,^ viz., that if the settlor Jof the estate be to the tenant for life in loco •parentis, and the ten- lant for Ufa not otherwise provided for, a reasonable maintenance JBhall be allowed him out of the rents and profits. ^ ^"I^ffnThyn v Hughes, 6 Ves. 99. So as to a purchaser who actually pajn off the arrear*. •'""frreod V. Smith, 3 De G. M, & O. 741 ; and see Ruscombe v. Hare, 2 Bl. N. 8. 192. i iT VJr "'*""<*'*» 1 Ves. 193 : Tracy v. Lady Hereford, 2 Bro. C. C. 128. s M ■ 1 m * See 2 Jo; & Lat. 160 ; Kay, 339. 5 M. and Tracy v. Lady Hereford, mpra. tUKl V Watkinmn, 1 Ves. 193 ; Butler's case cited there ; T. & R. 174 Note, however, that in «ewt V. Watkinton, the bill was by a subsequent tenant for life, which tends to show that he WM then considered liable for the arrears. «)-. 812 PROCEEDINGS IN THE MAiJTER'S OFFICE. |S 5^ 'I And where the iticumbrances on the i3Ptate consist of annuitiesl the measure of the tenant for life's liability is the value cf thJ annuity, which the decree will direct to be ascertained: and thel interest of the estimated amount will be kept down by the tenai^l for life.^ And so the tenant for life, during whose time an annD-| ity prior to his estate has run in arr'^ar, will not be ordered to i the arrears, but only so much as, during the continuance of life estate, will keep down the interest of the charge, which th arrears constitute upon the corpus of the estate. ^ If arrears of lent, which, in the view of a court of equity, specifically applicable to the payment of interest, be received by the I tenant for life, he cannot retain them when the interest is in arreari though they all accrued in his own time ; especially if he were) party to a transaction in which those rents were assumed to havel been applied in pajonent of the interest.^ _ . With respect to the infant tenant in tail, there is an apparent! disagreement from the general authorities in an earliei case,* in] which the Court refused to order the executors of an infant tenant I in tail to pay the arrears of interest out of the infant's personal I estate; and the observations of the Court, as reported in Peere Williams, tend to show that the decision was upon the general ground that the tenant in tail is not bound to keep down the inter- est. It has, however, been suggested,'^ that the real ground was I not that the infant was not liable to keep down the interest, bnt I that it ought not to be paid out of his personel estate; for,]w Lord Hardwicke,* tli rents and profits were the fund out of which the guardian should have paid the interest. And so it was held in | the case of Surges v. Mawhey.^ And the like rule, no doubt, applies to the infant tenant for life. Where the estates of the husband and wife were mortgaged to secure the husband's debt, and payment was enforced out of tk produce of the wife's estate, it was held, that the representativw 1 Buiioer v. Attley, 1 Ph. 498. 2 Playtairv. Cooper, 17 Beav. 187. S Cawfield v. Maguire. 2 Jo. & Lat. 141. Chaplin V. Chaplin, 3 P. Wms. 299. Per Sir T. Plumer, T. & R. 177. 6"In Serjeton v. Sealey, citttd T. & R. 177. 7 T. & R. M7, 178. fT^Br'T"" ^*" m PROCEEDINGS UNDER DECREES AND ORDERS. dl3 lof the wife should have no interest on the sums which the hus- Iband'fl estate had thus become liable to recoup to them ; and con- Igequently that a judgment creditor of the wife, claiming against lihe husband's estate upon the foundation of this equity, could have |no interest upon the debt which he recovered.^ The husband and Ifife are not bound to keep down the interest of a mortgage on the Itife's estate for the benefit of her heir ; though for what he may Ihave actually paid in respect of such interest, he will have no jallowance. And as tenant by the cm-tesy, he must keep down, after his wife's death, the interest on the original debt, and on the (arrears which have accrued during her life.^ The order of the Court, directing a receiver to keep down the in- terest of incumbrances, does not amount to an app- ^priation of the rents and profits to that purpose, so as to make the rights of the parties where the interest has not been paid or applied for, the game as if interest had been actually paid.' The order is partly made in justice to the incumbrancers, partly for benefit of the es- tate, lest the incumbrancers should proceed in respect of their un- paid interest ; but if they do not apply for it, they are presumed to be content with their security for principal and interest, and the estate remains burthened with the arrears, for which there is no equity against the surplus rents paid over by the receiver. i [17. Of Payment of Interest on Arrears of Annuities, and on Bond and Judgment Debts. As a general rule, int ;re8t is not allowed upon arrears of an annuity, though it be charged upon land, but under special circum- stances only. It was held by Lord Hardwicke, that if the annuity were given for maintenance, or there were a penalty for securing the payment of it, interest should be given on the arrears.* But the rule as to maintenance has not been followed ;* and it has been long held, that the security of a bond and penalty i aises no equity for interest on the arrears, because no interest was recoverable at law on a judgment debt, though damages were given in the nature ' LofiMiter V. £wr», 10 Beav. 266. 154. ,„ i , ,..,:.,-! t Rmimbt V. Hare, 2 BH. N. S. 192. S B~-Hit V. Lord Abingdon, 3 Mer. 560. J aewman v. AuHtu, 8 Atk. 679 ; see also Ferrert t. Ftrrert, C». t. Tilb. 2. > IncT. Earl of WxnUrton, 1 Yes. Jun. 460 : Crewx v. Hunter, 2 ibid. 157 ; and sea Uellitit v. Mel' Jirt, U V, s^ i l-k 816 PROCEEDINGS IN THE MASTERS OFFICE. or income required for satisfaction of the annuity ; and if this omitted, and the accumulations be carried to a general account I profit produced by a part of ths fund will not be separated for th benefit of the annuitants. This application, it seems, should made immediately after the title to the annuity has been esta lished.^ . .; ..>,.'. >■",.. }.-V :■ . i; ! .^u ■•-; Mi u -i-'ii' ■ , -, . ,• The discretion of the Court in this matter is not afiected by Statute 22 Vic. c. 43, s. 3, Con. Stat, of U. C.,- which gives tojurii at the trial of an issue, or on an assessment of damages, power allow interest to creditors upon debts or sum certain. As ai pears by direct authority,^ and incidentally by decisions made sim the passing of the English Statute, 3 &, 4 W. IV. c. 42, s. 28, which ours is nearly a transcript ; although, by one learned Jui it was said to be the absolute duty of the Court to adopt this and other provisions of the Act, by applying the spirit of them to practice of the Courts of Equity.* Bond debts generally carry no interest, either at law or in equira beyond the amount of the penalty, which is taken to represent the agreement of the parties the ultimate amount of the deb But the conduct of the obligor, the interference of the Comi;, other special circumstances, make in this case also exceptions to thj general rule.* And if there be a bond and a mortgage to secure 1 same sum, with all interest that ma^ grow due thereon, iuten will be carried under the mortgage beyond the penalty of the bond for the amount of the penalty is not to prejudice the mortgage.^ And it matters not whether the mortgage precede or follow tlij bond. Interest will also be given in such a case where the morl gagor, is a surety, as the creditor may make the mortgage as ava ■ able as if it were given by the principal debtor. But a trust f payment out of the proceeds of real estate, of bond debts, togethd with the interest due and to grow due for the same, to the payment, will not ^ carry interest beyond the penalties of the bond 1 Booth V. Leycegter, a My. & C. 469. 2 He Powell'i Trust, 10 Hare, 134. 3 Hyde v. Price, 8 Sim. 578. 4 Tew V. Earl of Winterton, 3 Bro. C. C. 489 ; Maekworlh v. UumuUf 6 Vei. fl Yes. 411 ; Atkinson v. Atkinson, 1 Ba. & Be. 239. 6 Clarke v. Lord Abingdon, 17 Yes 106 6 Hughes v. Wynne, 1 My. & K. 20 ; Clowes v. Wattrt, 16 Jur. 682. 829 ; Clarke r. , PBOOBBDINGS UNDER DECREES AND ORDERS. 817 e: 329 ; Clarie r. I Ifor as interest does not grow due beyond the penalties, by virtue lof the rule under consideration, the trust will be satisfied by pay- ImeBt of interest to the amount of the penalties. It has been said,^ that if the bond be tacked to another security, \tn to the mortgage for securing other sums, the mortgagor may not Iredeem unless he will pay the interest which is above the penalty. iThis is doubted by Mr, Powell,^ because tacking is only to avoid Icircuity of action, but it is supported by Mr. Coventry^ on the Iground, that the excess of interest may be tacked in the nature of Ifiirthel' advances. The doubt of Mr. Powell seems more correct in Iprinciple than the reason against it ; for a bond is allowed to be Itacked to prevent a circuity of remedy in respect of a recoverable debt, and not to make a new remedy where there was none before : |and we have seen that, as a general rule there is no remedy for in- erest beyond the penalty. Neither can interest in arrear be turned linsuch a manner into principal, as the treating it as a further ad- jmce would imply. The proposition may, however, be supported upon the principle, [that a person, who comes for the aid of equity to compel redemption, QUflt do equity by payment of all interest ; and the rule has been laid down where a mortgagee has tacked a judgment to his ortgage.* ,j u'ui ^'*'*" • , .:' -• *•• .! > '• Interest has been given beyond the penalty to a judgment credi- Itor, who was a trustee in possession under the will of the debtor Ion the ground that he might have retained the rents (though he jdid not do so) to pay the interest due to himself, and that but for |ttie filing of the bill he would have retained possession as trustee.^ 18. Of the Conversion of Interest iii Arrear into Princi/pal. It was said^ to be always a rule, that the assignee of a mortgage phould have interest for the interest due at the assignment : but now,^ if there be an arrear of interest on a mortgage, and an assign- 1 Pun V. Baliviyn, 2 Eq. Ca. Abr. 611. J Pow. Mort. 35e, ed. 6. . . SiWd note(5.) ,. ; ' ' ': jSj|«Oo(V«i/v. ITotton, 3Atk 517. - . » Atkmton T. AtHmon, 1 Ba. & Be. 289. J iwm. I Ch. Ca. 268. ' ^**««*tt"t V. Jamen, 3 Atk. 271 : Earl of Macolenfield v. Fitton, 1 Vem. 168 : Matth»v)$ r. Wal- «»», 4 Vm. 118 ; Chambtrt v. Ooliwin, 9 \ es. 254 ; Manglea v. Dixon, 3 H. L. C. 737. 38 ,..-v....:H' 818 PROCEEDINaS IN THE MASTER'S OFFICE. ^ ^ ment be made by the mortgagee with the eoncarrence of the mort-l gagor, the interest paid by the assignee shall be taken as priacipal I and carry interest ; but where it is assigned without the concurreneel of the mortgagor (unless it seems ^ he first refuse, either to payi the debt, or to join in the assignment), the assignee must take onlyl upon the same terms with the assignor ; that is, he will be entitled! as against the mortgagor to no more than is actually due on ttvil security, without reference to what he may have paid, and the| interest which he pays will not be taken as principal. The mere privity or assent of the mortgagor to the account is nol sufficient* to change the interest into principal, even if he sign tbel account ; for no intent is thereby shown to alter the nature of tiutl part of the debt which consists of interest. On the other hand,coD.| version may take place on the mere written consent of the mor gor, or person entitled to redeem, without his being actually a partjl to the assignment, or even on inference of his consent arising from his acts or from his acquiesence ; thus, where interest had beeol paid for many years upon an ascertained balance of principal i interest, reported due at the date of a decree for sale, the court in^ ferred an agreement that interest should be paid as the price forbearance to enforce the sale.' And again, where a puisne incumj brancer, who had purchased the equity of redemption under decree of the court, took in two judgments prior to a mor security, at the desire of the mortgagee, who was unable to takd them in himself, the Court considered* his consent to be equivaleii to his joining in the deed, and allowed the judgment creditor ioJ terest on all that he had paid. / ^ Inquiries will be directed as to what is due on the mortgage, ao^ what has been paid by the assignee.^ If it be denied that anythin was due at the time of the assignment, the inquiry will be, wb was due at the time of the mortgage, what at the time of tn assignment, and what remains due ; and if it appear as the resa of the inquiry that nothing was due at the time of the assignmenlj the assignment will be declared void as against the estate of • ' ■<■■ 1 Anon. Bunb. 41. 2 Broum v. Barkham, 1 P. Wms. 652. 8 M'Carthy v. Llandaff, 1 Ba. * Be. 376. • • «. 4 A8henhur$t v. James, 3 Atk. '.'71. There seems formerly to hare been a P"**!"?* ™ •?"Z: interest to the principal, upon aasi|piment, after forfeiture by non-payment of interert, «ii«J I lie time for payment of the principal had not arrived, See Oladwyn t. HiUshman, J vim u fi Smith T. Pemberton, 1 Ch. Ca. 67. PROCEEDINGS UNDER DECREES AND ORDERS. 819 ortgagor. But if otherwise, and the assignment were made with- lout the mortgagor's privity, he or those claiming under him will l)e L liberty to redeem on payment of what has been found due on the original security.^ As to the conversion of interest into principal, as between the Imortgagor and mortgagee, the later authorities agree that, by an loriginal stipulation in the mortgage deed, this cannot be done ; jbnt the interest must first be due before any agreement to turn it linto principal will hold good.^ It was decided at an early period IbvLord Keeper North,* that such interest as was reserved in the iv of the deed should be reckoned principal ; because, being as- certained by the deed, an action of debt would lie for it, and it was Ireasonable that damages should be given for its non-payment. But this doctrine assumed the validity of the bargain, which was terwards denied, on the ground of usury ; and upon that ground done the rule just stated appears to stand. For, although Lord lEldon said, that such a bargain was neither illegal-nor unfair, he ladded that the Court would not allow it, because it tended to Insury, though it was not usury ; * and another learned Judge,^ irho questioned the accuracy of this language, considered that the doctrine could not be supported, except on the ground that, some Ivantage being supposed to arise to the mortgagee, ultra the ^£5 er cent, interest, and that advantage being secured by an original ^ipulation, the contract savoured of usury. The getting a col- ateral advantage has also been mentioned as a reason for the Je,' but this seems to be merely a form of usury ; ^ and if it be, as it clearly is,^ lawful to turn interest into principal by agree- aent after the interest has become due, and provided there be no joppression ; there seems no reason, save that of usury, why the pe bargain may not be made on the original contract, when the parties are dealing at arm's length, and the mortgagor may be able to choose his own lender. It is, therefore, submitted, that, nth the abolition of the laws against usury, all reason for the 1 Matthewiv. Walwyn, 4 Ves. 129 : Lunn v. St. John, cited tliere. . Inri OtmUton v. Lord Yarmouth, Salk. 449 ; Broadway v. Morecrajt, Mos. 247 ; Sir Thomas Meer'8 case cited, Fom 40 ; Ex parte Champion, 3 Bro. 0. C. 440 ; Ex parte Bevan, 9 Ves. 223 ; Morgan r. Mather, 2 Ves. jun. 21. J Hmnrd v. Harrit, 1 Vem. 194. « CAomivr* V. Ooldiein, 9 Ves. 271. 5 AldjreonB., in Blaeklnirn v. Wanoick, 2 Y. & C. 92; see also Sackett v. BaiHtl, 4 Mad. 68, where an issue was directed. «9Ve8.272. •■ ■ -' ": '-■ -: - ■'■-'■ ■:-■■■ \ '■■■ ■' I ^ *;"W«* V. Young, 17 Ves. 47 ; Leith v. Jrvim, 1 My. k K. 284. ■, -*^ ^ ■ » Biackbum r. Warxciek, 2 Y. & C. 92 ; ThomhUl v. Evans, 2 Atlt. 331 la ei Vf'-i ^t 820 PBOCEEDINOS IN THE MASTER'S OFFICE. prohibition of original contracts to turn interest into principtll except where fraud and oppression are in question, has c( A part agreement to add two per cent, to the rate of interest iJ served by a mortgagee, in consideration of an extension of was held insufficient to charge the extra interest.^ 5: An exception to the rule against the conversion of interest ink principal, by a stipulation a priori, is founded on the law respect-l ing mercantile transactions ; for as by that law it was allowable to make rests in transactions between merchants, by previon agreement, such being the usual course of trade,' so it was in equity,* that securities upon land might, notwithstanding thel usury laws, be given to secure the final balances due on snch transactions ; and this exception is applicable to dealings between| bankers and their customers.^ Whether such rests could made at shorter intervals than a year seems to have been doubtedj though the rule amongst merchants does admit of half-yearly an quarterly rest's ; and such have also been allowed on admission in the case of a mortgage." But these decisions were prior to the changes which were 1 in the laws of usury before they were finally abolished ; and fron the construction put by several eminent judges'^ upon the statat( 2 & 3 Vict. c. 37, which abolished usury as to contracts above lOLj with an express exception of securities upon land; it was held to[ follow,® that where money was paid to bankers in discharge of 1 security taken by them upon land, for the balance due from customer, which balance was partly made up of discount uponl bills charged at a higher rate than 51. per cent., the excess of m terest charged for discounting such of the bills as were within tlie| statute 2 & 3 Vict. c. 37, must be disallowed. 1 In a ease in which, after interest had become due, the mortg^a^fee took a second security for i sm composed of the principal and interest already due, with interest on that interest, the Mi* came to the singular conclusion that the second transaction was a satisfaction of the first nuKi gage, but was itself void for usury ; thus holding the same deed to be at once good agaiiiittD croditor for one purpose, and bad for another. The question of usury atterwardi went to i ]wt Saekett t. Baatett, 4 Mad. 68. 2 ToWen V. ITottot*, 17 Grant, 233. v* ■ 8 Ex parte Sevan, 9 Ves. 223 4 Lord Clanearty v. Latouehe, 1 Ba. & Be. 420. 6 Buford V. BUnop, 5 Buss. 346. 6 Ibid. 7 See Ex parteWarrington, 3 Do G. M. jk O. 159 ; Latie v. Horloek, 1 Drew, 587 ; Jamt' »• Kay. .31. 8 Thotnat v. Cooper, 18 Jur. 688. PROCEEDINGS UNDER DECREES AND ORDERS. 821 It has been said, that interest upon interest ki arrear, when the nortgage is paid off, is never allowed in equity ; ^ which probably pends on the rule that interest on arrears will not be given on _ agreement made before the arrears were due ; but such an Igreement for the reason given above would probably now be held j.l'.i .■i*i«ifi An agreement to turn arrears of interest into principal must be Dade fairly, and is generally and most properly upon the advance Lf fresh money.^ It is clearly not looked upon with favour by the Court, and will be avoided by circumstances which show extortion; L if the interest on the arrears be fixed at a higher rate than that |in the original security. The infant heir of the mortgagor has been held ^ bound by an reement of this kind, made to prevent the mortgagee from en- «ring; it being clearly for her benefit, and made with the privity |}f her nearest relation!. And such an agreement, made by the assignee of the equity of kedemption, in trust for the payment of debts, and to pay the sur- plus to the mortgagor, has been held * to bind the mortgagor's peir, though no party thereto. fiut such an agreement made in favour of the first mortgagee not hold against later incumbrancers of whom he had notice ; or the same reason which prevents a mortgagee from tacking fur- ber advances against such subsequent incumbrancers.* w, 587 ; Jam*» »• 19. Of Computing Subsequent Interest. It was formerly the practice of the Court, upon enlarging the pime for payment of the mortgage debt, to direct subsequent in- erest to be computed on the aggregate amount of principal, inte- est and costs found due by the former report, and from the Confirmation thereof ; ^ the reason of which was, that as the fur- 1 ^?!>f»»*«JJ, r. Z»an«, 2 Atk. 330. - i /old. ; . , .-i , ' &rfCft«rteir/te/(i V. Lody CfomwaM, lEq. Ca. Abr. 286. ? ' 4 Comray v. Shrimpton, 2 Eq. Ca. Abr. 738 ; 6 Bro. P. C. 187. . ''' " ; VPj/ »• Cnugs, Ambl. 612 ; 2 Eden, 201. » mMom V. Crou, 3 Veii. 471 ; Creuze v. HunUr, 2 Yes. jun. 157 ; Turner ▼. Turner, 1 Jac. & W. 89* « * 822 PROCEEDINGS IN THE MASTERS OFFICE. ther time was given to the mortgagor, by tlie favour of the CotutI he was put upon terms, by which the other party would be indemJ nified for the dehiy ; or, it has been said,^ that he might suffer fori disobeying the order of the Court for payment on the day fiieil But the practice was not followed in suits in which the delav wa not granted by the favour of the Court, and it seems to have pre-l vailed in suits for sale and payment of incumbrances -^ the dis tinction between such suits in which the delay does not arise fron the default of the mortgagor, and in which the practice might highly injurious to the interests of other creditors, and suits foi foreclosure, having been long recognized; but in a suit for sale, anl order has been made to compute interest on the principal onlyj without prejudice in case there should be a surplus.^ At the present day, it is the practice in suits for administration) where the mortgaged estate has been sold, to compute subsequeDt] interest on the principal only.* And it is the same in foreclosurJ suits, for the time for redemption is now enlarged, on paymenti within a fortnight, or other short time, of the interest and costi already found due,^ or if the object be to suspend the execution oil a decree until the hearing of an appeal, then the interest from th«[ filing of the bill, with costs, will be ordered to be paid.* The r* suit of which is,^ that the interest and costs being already paidJ subsequent interest can be given on the principal only. Yet, if] for any special reason, the Court should enlarge the time, withoul| ordering immediate payment, it seems it would still be proper compute the subsequent interest on the aggregate of the princip interest and costs. In a modern case, however,^ where a sum of money w»i charged upon an estate belonging to several persons, who desirei to pay off the charge instead of having it raised under the decre«j an owner who had not obeyed the order for payment of his pr» portion was allowed further time to do so without paying interesi on the whole amount found due ; though it was admitted that.i 1 Brown v. Barkham, 1 P. Wms. 652 2 Harrit v. Harris, 3 Atk. 72 J. 8 iVeaJv. ^.G. Mos. 246. 4 Whatton V. Cradock, 1 Keen, 267 ; Brewin v. Austin, 2 Keen, 211, 6 Edwards v. CunHffe, 1 Mad. 287 ; Jones v. Creswicke, Sim. 304. Monkhuuse V. Corporation of Bedford, 17 Yea. 'Hil. . ,. 7 Brewin v. Austin, 2 Keen, 211 ; Whatton v, Cradock, 1 Keen, 267 ; notwithstMidlng Brvtrt^i Wharton, 7 Sim. ^3. , . », . StWUkinson v. Charleaworlh, '2 Beav. 470. PROCEEDINGS UNDER DECREES AND ORDERS. 823 iwithsUndlng Bnm4 jict jastice, the owner of the charge was entitled to such inter- i, and though the principle adopted in foreclosure suits under the lid practice seems to have been applicable. Where an infant heir had revived and carried on a creditor's luit commenced by the mortgagor, but neglected to pay the money n the day appointed by the decree, the subsequent interest was lirected,^ in accounts taken in a foreclosure suit instituted by the ortgagee, to be taken from the confirmation of the former report, in the sum thereby reported due ; the former decree having been I and enrolled, and the infant, subject to his right to sur- iharge and falsify, being held to be bound thereby ; and as this as not a case in which the person in default was seeking the in- ince of the Court, the decision seems still to be of authority. Where interest runs on the whole sum found due by a report, it I runs only from the confirmation of the report, and up to that ae on the principal only.^ Where the question of interest is not reserved by the decree, it I properly a matter of rehearing, or to be determined on further rections where they are reserved, and should not be brought for- rd by petition ; which is only proper for carrying out the direc- tjons of the decree.^ 20. Of the Right to set off Arrears of Interest. Where a mortgagee bequeathed a sum of money upon trust for [the benefit of the mortgagor, the devisee of the latter was held not I be entitled, upon redemption, to have the amount due to the agor at his death, for arrears of interest on the legacy, set [)ff against the amount due from him on account of the mortgages; ecause set-off does not take effect ipso jure, or without a process I our courts, but the debts subsist notwithstanding the cross de- Hids, and may be separately assigned ; and if the mortgagor had sold the estate subject to the mortgage, the purchaser could Hot have come for such an account. But before the death of the mortgagor, it seems the set-off might have been directed, upon iking the accounts.* 1 AKttom V. Odett. 4 Bro. P. C. 349. 1 Jae^ T. Earl of Sufolk, Mo8. 27 . t'^vvu V. Hunter, 2 Yes. Jan . IM ; Ooodyere ▼. Lake, Amb. 584 , and see in Lord MidUton r. ^ «Kl6Sim. 631. mi 824 PROCEEDINGS IN THE MASTER'S OFFICE. ii Where incumbrancerB bad enforced tbeir lien against the nees of the bankrupt'^ estate, in a chancery suit, in which the! subject of the security had been sold, and the proceeds apphed ii reduction of the debt, the mortgagees, in proving for the residue were allowed to set off the incoin • . ■ ' 3 Waddell v. M'Coll, 14 Urant, 172. 4 O'Connor v. Clarke, 18 ar»ut, 422. , PROCEEDINGS UNDER DECREES AND ORDERS. 22. Taking an Account with Rests. 829 ,i This expression means simply "taking an accomit, charging compound interest." i^'or instance, an executor or trustee guilty of gross misconduct may be punished by taking his accounts "with rests." If it be found, for example, that in 1860 he had in his hands $1000 for which he has not properly accounted, or which he has improperly used, or invested, the account with rests would be made up thus : ne(^ After de- I Balance in hands of trnatee on Ist January, 1860 $1000 00 llnterest thereon to Ist January, 1861 60 00 $1060 00 llnterest on S1060 from 1st January, 1861, to Ist January, 1862 63 60 !i »1123 60 llnterest ou $1123 60 from Ist January, 1862, to Ist January, 1863... 67 41 $1191 01 llnterest on $119] 01 from Ist January, 1863, to 1st January, 1864 71 46 $1262 47 land so on to the date of the report. By the English practice, the Master was not at liberty to take jan account in this way without the special direction of the Court, lembodied in the decree, or by a separate order — but our orders^ jpermit the Master to take account.: with rests if he thinks a pro- jpercase is made before him, without an}^ direction from the Court, and without any case being made for the purpose in t.ie pleadings. The following authorities collected from Williams on Executors shew the cases in which tie Court in England have thought lit t( [charge executors or trusts .vj .\^i\\ simple interest in cases of neg- pect merely, and with compound interest in cases of positi'^e and ross breach of trust by ordering the account to be taken ' ' with l^r^ff) ; , ... This may be the pioper place to enquire, under what circum- rtances executors or administrators shall be charged with interest 1 Oni«r 223. ^ 830 PROCEEDINGS IN THE MASTER S OFFICE. ^ h on the assets retained in their hands. There are two grounds on I which an executor or administrator may be charged with interest! 1st. That he has been guilty of negligence in omitting to lay out! the money for the benefit of the estate ; 2nd. That he himself made use of the money, or has committed some other misfeasanct] to his own profit and advantage.^ 1st. With respect to neglect on the part of the executor in notl laying out balances, it must be observed, that it frequently may k\ necessary and justifiable for an executor to keep large sums in liisi hands to answer the exigency of the testator's affairs,^ especially in the course of the first year after the decease of the testator ; inl which case such necessity is so fully acknowledged, that, sccordinj to the ordinary course of the Court, the fund is not considerei distributable until after that time.^ But if the Court observesl that an executor keeps money dead in his hands without any a rent reason or necessity, then it becomes negligence, and a breach of trust, and the Court will charge the executor with interest.'! And it seems that outstanding demands, even on probable groundsJ are no reason why the executors should not lay the testator's monejj out.' But an executor shall not be charged with interest fori balance in his hands, retained under a fair apprehension of hi^ right to it.* As to the rate of interest which the executor shall pay, the ruli appears to be, that in these cases, where negligence alone is impu' table to him, he shall be charged only with 41. per cent.jinrespecl of the balances, which he ought to have laid out, either in coi ance with the express directions of the will, or from his generi 1 Roeke t. Hart, 11 Ves. 59, 60 ; Tebbs v. Carpenter, 1 Mad. .306, 307 ; Kildare v Hop»Dn, 4 Bro.l C. 550, Toml. ed : Lin-coln v. Allen, i Bro. P. (J. 5.53, Toinl. ed ; Athbumliam v. Tkomftoul Ves. 401. 2 See Dawson v. Massey, I Bal.. & B. i'M. 3 Forbes V. Ross 2 Cox, 115, 116, hy LordThurlow. 4 Littlehales v. Oascoyne, 3 Bro. Chan. Ciw. 73 ; Browne v. SoxUhouse, 3 Bro. Chan. Ca. 108 ; M liny. Frith, 3 Bro Chan Ca. 433 ; Hall v. HnlMt. 1 Cox, 134 ; Seers v. Uiivd, 1 Ves. jun, mt Lonqmore v. Broom, 7 Ves. 124 : AKhbiirnham v. Thompson, 13 Ves. 401 ; Turmr v. T\trur,\ Jao. & Walk. 30 ; Gondohild r. Fcntnn, 3 Yountfe & Jerv. 431. In order to pve a claim fori terest, there niuxt be a clear oase of Improper retention of balances to a coiisidcrable nr s"™' tial amount ; Jnm-s v. Morrall, 2 Sim. N. S. 241, 252. See also Davenpnrt v. Stafurd, 14 Mii 319. The executors m ly be charged with interest on balances, thou"{h not claimed by the null 1 Jac. & Walit. 39 ; see 2 Siiu. N. S. 241. „ ,t 5 3 Bro Chan. Ca. 434 ; 1 Mad. 305. It was resolved by Sir Joseph Jekyll, in Taylnr v '■ i' ■ '., •. ■ ■ ■■ :^>ii'- M^ii PROCEEDINGS UNDER DECREES AND ORDERS, 833 M Igtock replaced, or the money produced by the sales, with interest lat U. pel' ^^''^^' ^^ more, if more had been made l)y it, and the costs loccasioned by the executor's misconduct.^ In Mosley v. Ward,^ Ian executor in trust for infants, unnecessarily calling in the pro- Iperty, out upon good security at 51. per cent, except a small part, keeping large balances in his hands, and using it as his own, was loidered by Lord Eldon to be charged with interest at 51. per cent. land costs. In Bick v. Motley,^ the Master found that two execu- Itors had, by signing joint cheques, enabled each other to receive iBums belonging to the estate of their testatrix, when they were Iboth largely indebted to that estate ; and that the sums so received |by them were debts proveable under their respective commissions, oth executors having become bankrupt : Sir C. Pepys, M. R., lid, that as, in respect of such sums, the executors had each com- Imitted a devastavit, each was chargeable, according to the uniform [practice of the Com-t, with interest at 51. per cent, upon the sums Iwhich he had enabled his co-executor to receive : And his Honor [accordingly made an order, that interest at that rate should be [added to the principal sums to be proved against the bankrupts' {estates respectively.* In Jones v. FoxallJ' and Williams v. Powell,^ IBomilly, M. R., stated the rule as established by the authorities, mt if an executor has retained balances in his hands, which he [ought to have invested, the Court will charge him with simple in- [terest at \L. per cent, on the balances ; but if, in addition to such [retention, he has committed a direct breach of trust, or been jguilty of misconduct, he will be charged after the rate of 51. per IcentJ But in the later case of The Attorney-General v. Alford,^ Lord jCranworth, C, said he could not understand the principle on which the Court can proceed inpoenam to punish the executor for his mis- conduct by making him account for more interest than he has re- ceived: And his Lordship stated his opinion to be, that the Court ought, in the case of an executor who has money in his hands j which he ought to invest and does not invest, to charge him only ■ S*e also Bate v. Scales, 12 Ves. 402. ■ U Ve«. 581. iM. &K.312. * See also Munch v. Cockercll, ft Sim. 391, 351 ; confirmed, an to chargintf the trustees with interci.t . at 6< per jent., by Lord Cottenhani 5 M. & Cr. 178, 220. ' 16 B«av. SSi. eiSBetv -Sdi. 7 See ^80 the rule stated by the same Judge in Kmtt v. Cottee, 16 Beav. 80. 6 16 Grant, W*. whenitw I held that executors and trustees may be charged with interest as weU as principal in rM|Mii | ■ums lost through their misconduct, though the pnnctpal never reached their hands. PROCEEDINGS UNDER DECREES AND ORDERS. 839 reetlons, tliat they should he charged u:v. interest upon these Loimts- I stated my iiDpressioii to be against the chiim, and Jr. Becher was to furnish authorities, if he could find any, in npport of his position. None have been furnished to me. The luthorities that I have seen are the other way. Lawson v. Cope- [1 and Tehhs v. Carpenter^ were both, like this, cases where xecutors were charged with the amount of rests which, but for heir wilful neglect and default, they might have received ; and in ch case interest on the amount was asked for and refused by the tourt. The general rule seems to be, that the Court contents self with charging trustees with the principal only of what they ught have received, but have not received ; and does not, in ad. litioD, cbarge them with interest." Where an executor had stained money in his hands unemJDloyed, for which, on passing Lis accounts, he was charged with interest and rests — held, not- titastanding that having reference to the condition of the estate Ind of the facts of the case, he should be allowed his commission od costs of the suit.^ In taking the accounts in the Master's fffice, it is improper to charge a mortgagee in possession with iiual rests on rents received by him, until he is paid off in full.* Where, in taking an account r.pon a mortgage, the Master had aken the same against the mortgagee with rests, and on an appeal om the Master's report it appeared that, at the date of the gage, a balance was due by the mortgagee to the mortgagor, nd the mortgagee went into possession of the property, part of he arrangement being that he should apply the rests, &c., to the aying off of two prior mortgages, but it was not known that they bre due at the time of the moneys being received,* so that the folder of the incumbrances could have been compelled to accept ayment, the Court, if desired by the mortgagee, ordered a refer- Qce back to the Master to ascertain this fact.^ Where it appeared hat an agent had received large sums of money lor his principal, nd had used it for many years in his own business, instead of emitting it as he might and should have done, to his principal, he Iras charged with six per cent, interest and annual rests.® |liB.C. C. 16d. hllbd. »0. I J OottW T. BurrUt, 11 Orent, 52.1. 1 4 CoMimH V. //aH, Grant. 110. \> f««ioMii V. Harm, 10 Grant, 653. I« iawlmon ». croo*«, 4 Grant, 853. takes possession, with no interest in arrear, and will be sub- et^ to amiual rests.^ Where the mortgagee takes possession fter bills have been indorsed to him for the arrears of interest, fbich bills become due and are dishonored after possession taken, |ie interest is considered to be in arrear at the time of taking pos- liou, and no rests will be made.^ The mortgagee in occupation is as much within the principle ipon which rests are directed as he who naerely receives the rents Ind profits, and the Court can accordingly direct rests to be made' taking accounts of occupation rents. Where an incumbrancer denies his character as such, and sets Ip an adverse title, he will not be suffered to turn round, being de- 1 2?"** "■ ^»»t'*. 1 CoU. 287 ; Omdd v. Tanered, 2 Atk. 684 ; and see ibid, 4n. ' ! •iJioii V. Cluer, 8 Beav. 188. I ) Direction to make Rettt.~ "Take an account of what shall be coming due on account of rente ud profiu, to be appUed in the first place in pavment of Interest and princiMl, and imiIm amiMl Kit) : and in takingr such account make all Just allowances." Yate» y. Humbly, 1 Mad. 14. But the following is more strict :— " Take an account, &c. ; and in taking the aud account, make uinual rest* o( the clear balance, and compute intorest on such respective balances at U, per cent.; ud in mskink such annual rests, except tiie first, include in the balance then stated the Intaniat Of aach praoeolng balance, so as to chanre the defendant with compound imoreet thereon." CM- I , « i"*^ *''*'. ^U«. 16th November, 1886, R. L. Mton V. Land 4 De G. & S. 676. I i wiimnr Metcalfe, 1 Russ. 680 Make annual rests in the account of the rente raeeiired bv, and onthtoccupat on rent accrued due from, the late A. N. in her lifeMme ; and alee on the nate ?Ti!i ^'' "^ oooopation rent accrued due froni, the said defeadants, or any of then, eiiMe the •lesth of A. N. ; and compute interest after the rate of U. per cent, upon •neh reota and oeeon** tten reoU respectively, tbid. !?,:- 842 PROCEEDINUS IN THE MASTER'd OFFICE. s: feated, and claim all the benefits attached to the character of a fair! creditor; hut rents will be directed^ against such an iflcumJ brancer, where in an ordinary case none would have been direottdj according to the general principles of the Court. Annual rests cannot be made in taking the accounts, unless therl be directed by the decree.' And the Court will not at first give the direction unless it can be I founded upon something in the bill, such as a suggestion that the! rents and profits exceeded the interest ; or unless some case be madel for keeping the question open for future determination.' Butif.itl a later stage of the cause, it appear as the result of enquiriesl already directed, that the mortgage debt was paid off during thel mortgagee's possession by means of the r^nts and profits, restsl will be directed^ from that time, though no foundation were laidl for them, or direction give by a previous order. And this may nI done where, pending the pioceedings under the decree, and prior tol the report or certificate, the mortgagee for the first time becomnl overpaid by the receipt of rents, though he will not be chajged'j with interest on the surplus received prior to the date of the re-j port, but will be charged with the sums subsequently received, withi interest thereon at four pounds per cent, from the times when tbejl were received. A false statement by the mortgagee, in his answer, that the! mortgage remains unsatisfied, will also be a reason for a 8ubsequeDt| direction to make rests.* And if rests have been directed in a redemption suit, which isl afterwards abandoned, and a foreclosure suit commenced by thel mortgagee, the accounts will be taken in the new suit on the foot-l ing of the former decree, up to the date thereof, and therefore withI rests ; though there be no evidence in the new suit to warrant i| decree with rests.' ,, ' ... 1 litMrpemUi Society v. Riehardt, 1 Dru. & Ww. 268, 890. , . .u- i t OotiU ▼. Tat%end, S At 5SS ; Wtbber r. Hunt, 1 MmL IS ; FotoUr v. Wigktuia, dM tM | Donovan r. Frvektr, Jk 165. But see our Oitler 8S0. 8 KtMom r CUvrkton, 4 Hue, 97. 4 ritooHT. UtUaV; 1 Ruas. MO. 8 £loydv.y M Bettv. 864. PROCBEDINUS UNDER DECREES AND URDERS. 843 It has been said, that the sums which a mortgagee in possessioL eives in respect of the mortgaged premises, at times between >^tes of the annual rests, must be applied, when they exceed interest, to sink the principal.* But this intimation was oded upon the usury laws, since the repeal of which ' it is pre- aed that no such rests will be made unless for particular reasons lej are specially dkected. ^ . , , ,; I Wliere the direction is to ascertain the balances in the hands of I accounting party, at the end of each year, and to compute in- est thereon, at the end of each year, the terms of the decree be satisiied^ by calculating interest upon each balance of kacipal, for the year following that in which such balance is ertaioed, and charging the party with the aggregate of the sums [interest, in addition tc the ultimate balance of principal. But if decree also direct annual rests, and that the party be charged fith iuterest on the balances, at the rate and in the manner directed respect of the foimer computation of interest, the interest calculated the original oalances, instead of being carried to a separate ouDt, and added together to form the ultimate balance, must be I* from tilde to time to the balance of principal found due, 1 the future interest must be calculated on such joint balances of kincipal and interest.^ i ■ 1 'i Vigktma, dtod tbn And if the decree direct,® that when and as often as the rents profits exceed the interest of the mortgage debt, they are to be in reduction of the principal, the sums received by the rtgagee between the dates of the annual rests, calculated from the of the mortgage deed, are to be applied whenever they exceed interest, in reduction of the principal ; and the rests will thence- be calculated from the time of such excesa . • « » > •- :tf(h;:M.i tJ \r •I I ■ h f -I'lt I The estate of a bankrupt executor has been charged with the ount of rests, notwithstanding the bankruptcy.' ^l'^- 11 JwMMtMi ▼. ffaneood, T. ^ R. 477. IfiyU^pftm V. Grant, 6Myl. & C S58. aofU^fton t. Onnt, 6 Myl. ft 0. 268 : Raphael v. Boektn, 11 Ves. «. Jto r«Ui T. UmMy, 1 Mad. 14 : Cotkam v. Wett, Rolls, 15 Not. 18S8, R L. I* tMUMftM T. Hafwood, T. ft R. 477. VI>»rtfMJiw.DornJMl, It VM.in. , ,, - . « . ^ 844t PROCEEDINGS IN THE MASTER'S OFFICE. '** ' Half-yearly rents have been directed against an executor, but thel coarse was strongly dissapproved.^ '' ' ' i After the accounting party has given all the evidence he desiret| on his account, the Master requires the opposite party to whether or not he desires to surcharge. Any party interested i do this. If it be desired, the Master appoints a time at which thel surcharge is to be brought in. Order 237 provides that "A party] seeking to charge an accounting party beyond what he has in account admitted to have received, is to give notice thereof to thel accounting party, stating, so far as he is able, the amount bo| sought to be charged, and the particulars thereof in a short suceinct manner." At the time appointed the parties attend, and if the oppositi party does not desire time to examine it for the purpose of ascer-l taining whether or not it be prepared in accordance with the Mas-I ter's directions (if there be anything special in them) and the prac-r tice, the Master appoints a time to proceed on it. But if time to| consider it be desired, the Master appoints a time to hear any ob jections which may be offered. In the meantime the opposib party usually bespeaks a copy of the surcharge from the Master. At the time fixed to hear objections, the Master decides upon mj that may be made, and if the surcharge be defective he requires iti I Raphael v. Boehm, 11 Ves. 111. «tl««« '4«;-i/ -AT I The Master has power at any time before the report is actually ned and given out, to open the case on a proper application by her party : and he is not bound to require the application to be de on affidavit, though in special cases that is the better course. ne warrant to settle is seldom served. This is done only in cases |l PitUmm v. Scott, 1 Gnrnt, 682. % m- r'l I'RUCKEOINUS UNDER DECREES AND ORDERS. 845 I be corrected, and makes such order as to costs as to him may eiu reasonable. If no objections be made, or when the surcharge I forfeited, lie appoints a time " tc proceed " on it. This proceed- \i precisely similar to proceeding on an account — the same ricriptiun of evidence is used — thti Master enters in his book the ems, and marks them as he does in the case of an account, with bis exception, that no warrant to query is usually issued, though 1 a proper case this may be done. The Master, having received all the evidence on the surcharge, ben proceeds to " Hear and determine," or " Settle the report" — brthese phrases are synonymous. He begins with the account, Dd item by item, after examining aid discussing the evidence in apport of each, allows or disallov^s it, marking it accordingly. proceeds with the surcharge in the same way, and having done bis the result is a matter of mere addition and subtraction. Order 247 directs that " As soon as the hearing of any matter ending before the master is completed, he shall so inform the par- es to the reference then in attendance, and make a note to that ffect in his book ; and after such entry no further evidence is to I received, or proceedings had, without the special permission of he Master ; and the Master may proceed to prepare his report or iificate without further warrant, except the warrant to settle, ^hich is to be served on the parties as the Master directs." j.-t In a creditor's suit, a witness was examined by the plaintiff with be view of disallowing the claim of an alleged creditor after the idence had been closed, the plaintiff moved the Court (on affida- ^t stating that he had since learned that the witness could have ed that the alleged creditor had admitted a settlement of his aim) for leave to re-examine the witness, but the motion was ra- sed with costs.* „...\ , „ . ,t. ,./:,! r [The Master has power at any time before the report is actually ned and given out, to open the case on a proper application by ber party : and he is not bound to require the application to be ie on affidavit, though in special cases that is the better course. be warrant to settle is seldom served. This is done only in cases |l PtUmn V. Scott, i Gnmt, 682. j^ 1, 1 ,^ ^iui< ♦< ' yi^^JiiinU ft 1 846 PR0CBEDIN08 IN THE MASTRR'm OPTICR 5: f i where a lengthy reference in which the bolicitors or parties mti eeted have not kept themselves acquainted with all the steps b j Master's office, from not being directly interested in the later 1 oeedings. Where the parties are all present when the hearing! closed, it is usoal for the Master to make a direction fixing a th to settte the report, and this direction made in the presence oft parties is equivalent to the iervice of a warrant. At the time appointed, the Master goes over each enqnJ directed by the decree, and enters in his book, briefly, his ilud as to it. These entries form the groundwork of the rep After having determined upon the finding which he is to make { each enquiry (this being done after discussion with the solicitorl and ascertaining the precise totals of the sums to be allowed the account and surcharge, he appoints a time to settle the of the report. He prepares the draft in the meantime, and at I time appointed reads it to the parties in attendance — marking,! he sees fit, such alterations as may be suggested. This bei^ done, he signs the draft, and, in important cases, makes a fiij appointment to sign the engrossment. In ordinary cases, appointment is dispensed with, but the report, in strictness, 8 bear date on the day of the engrossment being actually sigi If an appointment '' to sign " be made, the parties attend ai time named, he signs the engrossment, and gives it to the conducting the reference, or, if desired, any party interested take a duplicate and file it. Upon this, the Master becomes, ssj it, functus qffic'o. Evidence must not be received by the after he has settled his report.^ But, as before remarked, Master has power at any time before the report is actually giij out to entertain an application for leave to give further enden which he may grant or refuse in his discretion. The Master's report had been confirmed ; the cause came oni further directions, when the Court, from the facts stated in 1 report, entertaining great doubt as to the correctness of the ter's finding, declined to act on it, though it refused then to all it.* The Court must give credit to what the Master reports [ occurring in his presence.* Pending an enquiry before the 1 Thomp$on r. Lambe, 7 Vm. 687. S Ortgorv r. Wut, 8 Bmt. 642. S ratowley r. WalmtUy, S J. * L. <6«. .<;'*r"l I ,» r»i rKOCEEDINUS UNDEH DECREES AND ORDERS. 847 The dissatiBfied it, the Court will not interfere with his conduct. 1Y must wait until the report is made, and then appeal from [before it is coutinned.' The Master's report speaks from its A U'al Master, in making his report, is not at liberty to date it Qtil the costs taxed by himself have been finally revised and set- tled by the Master in Ordinary under the General Orders.' 25. Master's Report. A report is ' a Master's certificate to the Court, how the facts or itters referred tu him are or du, upon examination, appear to him, r of something of which it is his duty to inform the Court.'* Formerly there appears to have been an opinion prevalent in the ofession, that there was a difference between a report and a certi- In Jones v. Powell, ^ Sir A. Hart, V. C, said, that the dif- [Brence between a report and a certificate was, that, with respect to former, the Court had laid it down as an inflexible rule, that be- exceptiouF. could be taken to it, objections must be carried in ifore the Master ; but that there was no such rule with respect to k latter. In Chennel v. Maiiin^ however, the present Vice Chan- |ellor, Sir L. Shadwell, after a very careful investigation of the sub- t, came to a different conclusion, and expressed his opinion to be tt there is no distinction between a Master's report, and a Mas- t's certificate, and that Master's reports and Master's certificates \ convertible terms. But, be this as it may, the dispute is merely De respecting terms ; for, that there is a practical distinction be- ieen some reports or certificates of Masters and others, with regard I the power of taking exceptions to them, without previous objec- flns having been carried in, is undubitable; and the terms ' Master's |ertificate,' and ' Master's report' appeared to have been opposed to I other for the purpose of marking the distinction ; thus the term >»•< has been applied to those reports or certificates that are made ' the Master, upon a reference to him by decree or decretal order on which it is intended to ground a f^irther de»;ree, and whilst |fi*l|t,(bni V. iltutwiel;, n Sim. 209. , - ■ ,. . . .. ! W' *•*»«. W Ormnt, 211. 5i8lm.s». ,...,..: ■I • 1 ^ 848 PROCEEDINGS IN THE MASTERS OFFTC!E. the term cetiijicate, has been more commonly applied to tho* i ports or certiiicates which are intended merely as the Inundatidii some future interlocutory order or procesH, and are not inttndHl the gi'ound of a decree or decretal order.* On the present occasion, observationB will be directed to the ports or certificates made by Mastei-s upon which further (krrfl or decretal orders are to be founded, and which for tlie punxt^c distinguishing them from reports or certificates of the other descri tion, will be termed ' reports.' Master's repoiis are either general oi' separate. General rejw embrace the whole matter referred to the Master by a ^mrticul decree or order ; but a separate report embraces only dhc distin object of the reference. Separate reports are made in cases in which it may be imm nent to the parties to wait till the general report for the opinion the Master, upon a particular matter before him under the tlecre By the old practice of the Court, a separate report could not made without a special direction in the decree, or special order raiw upon motion or petition for that purpose, which, however, granted for asking, at the expense of the party applying f but, Lord Lynhurst's Orders,' it is provided, that in all niattei-s refen to him, the Master shall be at liberty, upon the application ofai party interested, to make a separate report or reports, from time time, as to him shall seem expedient ; the costs of such separate i ports to be in the discretion of the Court. The party desirous of obtaining a separate report, must take o a wanunt to shew cause why a warrant on preparing a draft of sw separate report should not be issued, and, if the Master concurs 1 It is to b« observed, that, in most of tlie cases in wiiioli a Master in required to certify, itii m sarj for him to ezeroise some degree of iudgment or diHcretion ; in Huch cases the certitai liable to exception, for the purpose of taking the opinion of the Court as to the correctnesn oi ,1, Judgnent exeroised bv the Master; there are, howeTsr, other cases in which the Muttr li quired to malce a certiflcate, which do not call for the exercise of any judt^nient, as in tin M ^ . cerUSoatM to the Court of the prooeedinvs in his office, of the same nature is a certiflate<* tact of documents not having bi-en deposited pursuant to an order, which, accordlnr totlxm •s < deoWon of Lord Langdale, in Xemp v. Wade, 2 Keen, 687 (conflrmhig that of Sir A. Hut, « ' ' in Jone$ v. Powell, 1 Sim. 887), is a certiflcate which does not admit of eicoption. In m, tificates of this description are of the same nature as the ccrtiflcates of any other oOona Court, who certifies as to a mere matter of fact belonginy to his department, such m ue w oate of the clerk in Ceurt, of documents not having been deposited with hhn, punu^ order of the Court, which certiflcate, if wrong in point of fact, must be quashed, upon r^ and not excepted to. S 2 Harr. ad. Newl. 478. S Order 1828, LXX. 7 W < PROCSKDINGS tTNDIR DBCRBB8 AMD ORDERS. 849 ifiewof the subject, the warrant issues and the separate ro|)ort Mcordingly.^ If no cause is shewn upon the return of this it, a warrant to prepare the report must be issued and served, er which no further evidence can be received as to the matter to j comprised in the separate report. m 1 The form, manner of preparing, objecting, appealing from,' and ling separate reports, are nearly the same as upon general re- the only difference being, that, when it is intended to act Lpon them, the cause is not set down for hearing upon further direc- jioiu, as it is upon a general report, but the Court is moved for such tioDfl as arise out of the separate report. By one of Lord Coventry's Orders, after stating ' that the Masters f the Court do sometimes, by way of ir- ucemont, fill !i leaf or two fthe beginning of their reports, and sometimes more, with a long , jikrticular recital of the several points of ii.e order of reference,' bis ordered, 'that they shall forbear such iterations, the same ap- sufficiently in the order, and without any other repetition , Uus, " according to an order, or by the direction oi an order, of 1 a date," shall fall directly into the subject matter of their re- , setting down the same clearly, but as briefly as they can, for ^eeaHe both of the Court and parties.'' This order, however, so far ) least, as restricts the recitals of the points of the order, in the aencement of the decree, is generally observed ; but it is the ace of the Masters, in their reports, to specify the particular of each direction contained in the order separately, and then I dispose such direction before he proceeds to report upon another. I meihod of preparing reports is most useful, since it keeps all laeparate subjects of reference distinct from each other, and en- blcB the Master to give his conclusions upon each in a clear and tjpei form. And it is to be remarked, that great care is necessary i preparing a report to dispose of all the matters which have been 1, either by findings of the Master upon each section of the or by pointing out what matters of reference have been ^^f and, where a separate report has been made, it will be ■:-l II wMn > pulgr to a nilt obiaeti to % lepuBte raport, he mnit aiMpt to It ia the utual manner, and l. jy^ B«»«>dhyprtltloa.l)f»twfv.Jfawtoflbyp«tltteB.I)iwwrT. Jfati3Mtey.7Sim.M0. 30 8r>o PBOCEEDINUS IN THE MASTERS OFFICE. necessary to allude to it in tlie general report, specifying the pan culai-s of it, so tliat the Court may see that all the inquires q{^ ed by the decree, have been, in some way or other, disposed of the Master.^ . , ^ ,,,.,, .„j ,,j,., .,.,„..!. »/-. T.ii'jiif} . -i ,i'*i»l* The Master, however, .nust not go beyond th«i matters i-eferredl him, and it is laid down, in one of Lord Bacon's Orders,* that if Master reports as to matter which is not referred to him, his repoi so far us relates to that matter, is a nullity. It has beeu decide that, in such a case, the jjroper couree is, not to except to the Ma ter's repoit, but, before it is continued, to apply to the Court, that may be referred back to the Master to review his report, but that, no such application is made, and the report should be confirmeJ, tl Court will pay no attention to it, except so far as it is warranted the decree.' . . ■ ■■'■■••"■ - ■ -■ •-■•' -.fft 1 f-/. •« ' ' '> It may be stated, with reference to this part of the subject, that i exceptions will lie to a Master's report, upon the ground that he h introduced irrelevant matter, and that, where exceptions we taken, because a Master had set forth in his report certain parts an aiiidavit, and had annexed to his report certain schedules inventories, which it was insisted upon were irrelevent, and oa sioned great and unnecessary expense, the Master of the Rolls, J. Leach, would not pennit the exceptions to be argded* Generally speaking, it is the duty of the Master to meet all ti difficult: js that may arise in the discharge of this office. In son way or other, he must so provide as that all the accounts and quiries, directed by the decree, shall be fully taken;^ atleastitist Master's duty to go on with them, until he finds a difficulty arisi from want of sufficient powers, and then an application must made to the Court, either by the Master or by the parties, to that which is necessaiy in order to supply the defect of his auth rity.® A motion, however, cannot be made for the purpose of gi ting the Court to point out to the Master the form in which he to make his report.' Jjau u.itv. 1 Bennett, 18. i Beames's Ord. 28. 8 Jenkiru v. Briant, 6 Sim. 806. 4 Rufford V Bishop, 5 Russ. 347. 5 See Paynter v. Houston, 8 Mer. 802. 6 Ibid. 7 Agar v. Qumey, 2 Had. 389. Of. PROCEEDINQS UNDER DECREES AND ORDERS. 851 When the Master is directed to ascertain a fact, he must not con- st himself with stating the circumstances and leaving the Court I draw its own conclusion, but he must draw the conclusion him- ; thus, where it was referred to the Master to report whether a ticular individual was living or dead; and the Master stated the ^tumstaDces, viz : that the individual went to America; that, upon I arrival there, a letter was received from him, and that, since bat period, which was fourteen years before the date of the report, be had not been heard of, Lord Eldon, acting upon what he under- to have been Lord Alvanley's course, sent it back to the Master report whether the individual was dead or not.^ It may be oentioiied here, that, even when the evidence is such that it is im- sible to arrive at any degree of certainty upon it, yet, if it is Sufficient to afford a reasonable ground of presumption one way or he other, the Master is bound to find in favor of such presurap- tton* The Master, however, is not bound to state the inferences {of law arising from the facts before him ; and where facts are so ilearly stated in a report, as neceasarily to involve a particular con- ^uence, it is for the Court to act upon the facts so reported; and It would not be a proper ground of exception, that the Master had pmitted to point out the consequence.^ It is not, indeed, the general practice, unless in particular cases, |forthe Master, upon references to inquire into facts, to state the cial circumstances of the case in his report, without he is ex- jiresely directed to do so. By Lord Clarendon's Orders,* the Mas- «r8 are not, upon the importunity of counsel, how eminent soever, br their clients, to return special certificates, unless they are required )by the Court to do so, or that their own judgment, in respect of dif- ilty, leadeth them to it, such kind of certificates, for the most t, occasioning a needless trouble rather than ease to the Court, Qd certain expense to the suitor. It is to be observed, however, at, under this order, considerable discretion is left to the Master, lid that, notwithstanding it, he may, and frequently does, state circumstances in his repcu:ir without any specific order to it it* It id, nevertheless, frequently the practice, where it apprehended that particular circumstances may come out upon ! ^ l- '^*''<^> « Vm. 006 ; Me klso Dicum v. Diaon, 8 Bro. C. 0. ad. Belt. 6U. 1 pttSTJ, V»»*'«'' J M. k K. ISO. *"*»»• Old. > 8m iMH. S Atk. OW : C*«nvtmowM T. Aott, i 1I«L MS. t'^ir, ' .J ':i -,'^i»^f*^. . - '.A*-. M t ; c: 852 PROCEEDINGS IN THE MASTEH'S OFi It sometimes occurs that the party having the carriage of the jdecree, and conducting the reference, and who is therefore entitled to Ihe report, declines to take it. In such a case Order 251 provides hat " As soon as the Master's report or certificate is prepared, it is I be delivered out to the party prosecuting the reference, or in case (declines to take the same, then, in the discretion of the Master, to ny other party applying therefor, and a common attendance is to I allowed to the party taking the same." '»■' >A ♦•1 The practice in England required a three day warrant to sign the •port, but we have no such rule, the Master may appoint any time — ^ same day, if he chooses, on which the report is settled — if a Warrant be taken cut, it, like all other warrants, except the warrant [to consider," requires two clear day's service. There are some special rules to be observed by the Master in ning his report, which it may be well to notice here. Order 250 ovides that " Reports aflecting money in Court, or to be paid in ourt, are to set forth in figures, in a schedule, a brief summary of 1 1 flf^ '• Onvm, 10 Onrnt, 488. It OoiiKtr T. MeLean, 10 Onuit, 676. '.'.i tf '■. * HM V ■t ^e3ii^*"- 854 PROCEEDINGS IN THE MASTER'S OFFICE. the sums found by the report, and which may be paid or payable into or out of Court," aDd Order 256 that " Where the Master u directed to appoint money to be paid at some time and place, he igl to appoint the same to be paid into some Bank at its head office or I at some branch or agency office of such Bank, to the joint creditor! the party to whom the same is made payable, and of the Registrar! of the Court ; the party to whom the same is made payable jx) name I the Bank into which he desires the same to be paid, and the Master! to name the place for such payment." Order 256 provides tiiat! *' Where money is paid into a Bank, in pursuance of such appoiDt-j ment, the party paying may pay the same either to the credit of thej party to whom the same is made payable, or to the joint credit ofl the paiiy and the Registrar ; and if the same be paid to the credit of the party, such party shall be entitled to receive the same| without the order of the Court." And Order 257 that "Where I default is made in the pa3nnent of money appointed to be paid into a Bank, the certificate of the Cashier, Manager, or Agent of the Bank, where the same is made payable, or of the like Bank officer, shall be sufficient evidence of default. "\Vhere the affidavit of the} party entitled to receive the same is by the present practice required,) the same shall still be necessary." i ■• Order 313 provides that " No sum is to be inserted in the reporti of a local Master as taxed and allowed for costs, until revision the taxing officer, as provided for by Orders 311 and 312 ; but in i case of urgency, a writ of execution may issue to levy debt or costs,! or both upon the order of a judge, subject to the future revision by the taxing officer." Order 310 that " No bill of costs, where th^ amount claimed exceeds thirty dollars, is hereafter to be taxed by the Accountant, Registrar, or Judge's Secretary, but every bil exceeding that sum is to be taxed by the taxing officer, notwith^ standing anything to the contmry contained in the Order," Order 317 provides that " Where in a suit for administration, partition or partition and sale, the Master finds that the amount to 25 per cent, of the value of the property involved the suit, he is to certify to the Court the amount of the costs, the special circumstances, if any, connected therewith." Reports on sale are special, and wiU be noticed when sales underj the decree of the Court are considered. , . f WW ^"^^— *"> WW PROCEEDINOS UNDER DECREES AND ORDERS. 855 It may here be mentioned that order 239 provides that, " Upon Ithe application of any person the Master is to certify, as shortly as Ihe conveniently can, the several proceedings had in his office in any or matter, and the dates thereof. ' * Solicitors should be careful to bear in mind the effect of Order 248, fhich provides that, " Parties are to raise before the Master in respect f my matter presented in his office, for his decision, all points which jiuy afterwards be laised upon appeal ; and in case an appeal is liUowed on any ground, not distinctly taken before the Master, the , may order the appellant to pay the costs of the appeal." Where an appeal from the report of the Master in a foreclosure liait failed on the main point, and succeeded only in respect of a Ismail sum, the Court gave the respondents the costs of the appeal.^ , 26. Separate Reports. The Master has power to make a separate report without a special I direction in the decree ; and such reports are subject to the same (roles as general reports.* ..,..; 27. Correcting ei^rors in Report » The Master in making a subsequent report, is not at liberty to correct an error in his previous report, and if the objec- tion (that he has irade such correction) be apparent on the ke of the report, the objecting party is not driven to ap- * A clerical error in a report, whereby the time for payment of mortgage money was materially shortened, was allowed to be timended on an ex parte application of the plaintiff* when a bill lias heen taken pro confesso against the defendant on a sale decree, id no subsequent incumbrances proved, after the final order had been made, and the advertisement of sale published, it was discover- ed that the Master had omitted to include in his report two items of interest auiounting to a large sum, as set forth in the plaintifi''s iffidavit of claim, the error appearing on the face of the paper filed. -Oq an affidavit stating these facts, and on production of the papers ISOnmt, 58e. 1 AvNiitM r. Cunningham, IS Or j flwwf T. JTaudMlay. 7 Sim. 210, J OrjotaT. stnet, 1 Ohun. R. 7& *Wmr. CkmrOwy, I Ohun. B. H. ,rt*,iif i» ;■ ^ 866 PBOCEBDINOB IN THE MABTER'S OFFICE. from the Master's office, Eaten V. C. hdd, that there was nooeees- sity for appointing a new day for pajrment, and made an order n- 1 ferring it back to the Master to take a fresh account of the pUintifil claim to amend his report, and leave was given to fix a new uMtl price, and to postpone the sale if necessary.^ Upon an appeal &^| the Master's report, although it would have been more satiafiuitorrl to the Court, and also in accordance with the practice, -to have n.| ferred the case back to the Master, or directed re-aigumentofthil case, the Court, considering the great delay and expense to whickl the parties had been already subjected, undertook the settlement oil the account, and made an order varying the finding of the Maitv I to suit the true state of the accounts between the parties, so faml the evidence would enable them to do.' Where the correddon tol be made in the Master's finding is simple, a reference bade to him I for that purpose need not be directed, the necessary alteration ean| be made by the order drawn up upon the appeal' Ail order to correct a clerical error ir a Master's Report will be | gr&aied ex pcbTte} ^.. ,, , ^ ,.^ The Master before whom the accounts had been taken, after finding I that the amount due to the plaintiff was $476.62, stated thatthel same was equal to £109. 38. Id instead of £119. 38. Id, and direct- 1 ed payment by the defendant of the smaller sum, and Taylor DWTedl 605 parte for an order to correct the report, 'citing White v. CourliMjil 2 Chamb. Rep. 11. VanKoughnet, C. — You may take the order etc- 1 recting the error. *u , <» ; \> if.it'' • '.,;.; ,.•> •.. ■. ^ v> - A similar order to correct a clerical error in a Master's report ww granted ex parte by his Lordship, in 27th of Oc V>ber, 1864, in Hemri v. Elliot. The Court will at almost any •- - ; ei u cause makei| special order for the correction of slips in A * 'j?t;sr » report* In Simpson v. Ottawa^ it was held by V. C. Mowat that a motion to correct a clerical error in a report should be on notice unless on consent of all parties. 1 Betty T. Graham, 9 U. 0. L. J. 81 2 Saunden v. Chrutie, 7 Grant, 149. 3 TeeUr v. St. John, 10 Grant, 85. 4 Wation T. Moore, \ Chun. R. M6. 6 MorUy r. Matthem, 18 Grant, 4St. 6 2 Cham. R. 12. .'Mi'i^'j Jt ^ PROCEEDINGS UNDER DECREES AND ORI»RS. 867 In ft foreclosure suit a judgment creditor proved in the Master's lofioe £30 too much as his claim. The Mortgagor did not appear in Master's office, and some months after, this defendant, the aent creditor, had been paid in full, the mortgagor discovered imistaka An application was then made to have the amount loTeipsid refunded. It was contended that the report, so far as the of the judgment creditor was concerned, must be considered Ikis report, and that the mortgagor was entitled to have it rectified Ifith costa Landara v. AUan, 6 Sim. 620 ; Taylor v. Baker, 5 Price ||06 were cited. Eaten, V. G. granted the application with costs, lAagost, 1861.1 If the decree directs the taxation of costs, the Master taxes them, Ibat before inserting them in the report they must be revised, and Ithe report should not bear date until they have been returned to Ihim by the revising officer.* It may here be mentioned that no costs are allowed for any attend- lioee in the Master's office, for the purpose of settling or signing the JBeport after the bill has been returned by the revising officer. The practice as to revision is pointed out by Orders 311, 312 and |S13. Order 311 provides that " Every local Master is forthwith after a bill of costs, to transmit the same by mail to Toronto, dressed "To the Taxing Office of the Court of Chancery, Toronto," 1 he is to allow in the bill the postage for the transmission and stum of the bill, and shall prepay the same : and is to allow in the 1 the sum of one dollar as a fee for the revision of the bill by the Taxing Officer at Toronto, and a law stamp for that sum, with stamps for the postage, is to be paid at the time of taxation by the party procuring the bill to be taxed : and the local Master is • transmit with the bill to the Taxing Officer at Toronto, the Itbw up, and the necessary stamp for postage on the return of the bill Jthe local Master." Order 31 2 that " The Taxing Officer at Toronto, ' receiving the bill of costs, is to examine the same, and to uiark margin such sums (if any) as may appear to him to have improperly allowed, or to be questionable : and he is to revise he taxation, either ex parte, or upon notice to the Toronto agent ! I ^/- ^- "• MeDotuM, 2 Chun. R. Sa « Wtm T. JTeCoii, U OnJnt, 211. ,ti? IT .rtwiv I H ..a. .It. e 1 ■> ), ; I * J '*ffliSH p«jfiBi'«^-^^^ ^ 858 PROCEEDINGS IN THE MASTER'S OFFICE. *• (if any) of the solicitor whose bill is in question, as in his discretio he may see <;t : but notifying such agent (if any) in all cases wlie the taxation is clearly erroneous, or where the amount in questio is so large as in the judgment of the Taxing Officer to make notification proper. Such notification may be by appolntme mailed to the address of the agent (if any). If upon the revision tb sums disallowed shall amount to one-twentieth of the amou allowed upon taxation, the Taxing Officer is to add to the amount taxed off, the amount of postages, and the sum of one dollar afon said, and is thereupon to re-transmit the bill so revised to the Master." •wit •>.j 28. FUvng the Report. 'I y'M" The Solicitor on receiving the Report proceeds to file it in Toronb in the Office of the Clerk of Records and Writs ; filing in an outi County is of no avail. Order 252 provides that " A report is become absolute without an order confirming the same, at the expiiJ ation of fourteen days after the filing thereof, unless previoiui] appealed from." In a mortgage case the report must be filed befon the day appointed for payment.^ .,f, It may here be mentioned that the time of vacation is not to reckoned in the computation of the times appointed or allowed fo| Master's reports becoming absolute.^ It is not distinctly expres in the Ordera, but it is presumed that the word " Vacation " in Ordej 408 includes both the " Long " and the " Christmas " Vacation though under the Orders of 1853 the Christmas Vacation was m excepted in this computation of time allowed for amending a bill.' On a motion for final order for foreclosure in a pro. con. case, th\'\^ It is to be observed, that, those reports only, require ^or firmation come within the description of ' reports Strictly so called,' at is to say, those upon which it is intended to found a decree or llecvetal order. If it be merely a report which comes more properly nder the denomination of a * certificate' made upon or in conse- linence of an interlocutory application by motion, which is intend- I as a foundation for issuing the process of the Court, or for another Bterlocutory c .der, it requires no confirmation. So, also, if it be erely a report or certificate of having computed subsequent in- erest, or of having apportioned a fund between parties, upon prin- aples and in the proportions declared by the Court in a decree or retal order, but upon which no further order is to be made. - Tiiese certificates require no confirmation by the Court, but are omplete as soon as they are filed f though they are liable to ap- if any of the parties are dissatisfied with the Master's deter- ation. ■ " • • • ■ • - 'i '•'. It may be mentioned here that there are certain certificates which, ilthough they are made by the Master, in the course of proceedings nder decrees and decretal orders, are, nevertheless, complete as soon I they are filed, and require no confirmation. The certificates alluded to are those which are made by the Mas- ter, pending the prosecution of a reference before him, for the pur- of informing the Court of his having performed certain inter- iitory acts which are necessary to enable him to fulfil the duty i upon him, but which do not form the principal object of te decree under which he is acting. Of this nature are certificates [iven by the Master of having approved of a conveyance, or of his iving ordered the production of documents, pursuant to the decree, nd that the documents ordered to be produced were either pro- 1 ^ Taaaie, i Cham R. 168. i^ja H Smith, 368. ■tS « m ■^ L 860 PROCBEDINOS IN THE MASTER'S OFFICE. "< ^ i 1 duced or not produced before him. These certificates, althonc liable to appeal, do not require confirmation,* and, in fact, th partake more of the nature of certificates, upon matters referred i the Master, by interlocutory application in the course of the cause] than of reports ; and, although the directions in the decree, by whiclj they are authorized, are now generally introduced into the dew itself, it is probable that they formed, originally, the Buhject specific orders made upon special application. * ■ ■ • 29. Appeal from the Repm't. ' In England the practise was instead of appealing from the Report, t file exceptions to it, which were afterwards argued before the Court] And the object of allowing th« interval of three clear days, between the service of the warrant on signing the report,' and the timeap-j pointed for the attendance upon such warrant, was to allow who were dissatisfied with the Master's judgment, an opportunity ot| stating their objections to it in writing. The reason for the adop tion of this proceeding, is thus stated by Lord Chief Baron Gil-j bert^ — ' The ancient i-ule was, that the party should never es but where he had first objected to the draft of the report before thel Master; and, where there was no objection brought in, it waaallow-| ed a» good cause to discharge the exception; and it were to be wish- ed that this good rule was strictly followed, since, if the party had] objected, he might have shewed the Master his error, and the report! would have been altered in that particular, and never troubled thel Court. Whereas it often happens, that the party will conceal somej material objection and keep it in petto from the Master ; and whe this comes on by way of exception, it makes a variance in the re] port, as it might not have done if it had been faithfully disclouedj and laid before the Master.' ., , . i , ,. ^^..-.j^,, v The rule mentioned by the Lord Chief Baron, was promulgatedj by Lord Keeper North, in 1683,' and was in fact, with little varial ' 1 In StOtt\. Lirmey, 2 S. & S. 800 ; the Vice-Chanoellor, Sir J. Leach, is reported to have nM.tWl whenever exoeptions would He to a Master's report, it must be regularly confirmed before u;l Older ean be made upon it : this however, must be a mistake, as the only report of this utuil whieh requires conftmiation, is that of a person being the purchaser of a lot at a sale before ut I 1 Matter, with respect to which it is to be obeenred, that the object of requiring this nportu"! ooufhrmed is, not to enable the parties to bring the decision of the Master under the i^J"** "^1 Court, but to afford time between the service of the order niti, and the absolute eonflniuDOD oil the report, to others to come in and open the biddings, so as to secure the sale ef theeatMetotMi best possible advantage. S For. Rom. 167. 8 Beunei'e Qrd. 269. PROCEIDINOS UNDER DECREES AMD ORDERS. mi ItiuD, the rule of the Englinh Court ; the practice of the Court requir- ihat, in all cases of reference tu a Master, under a decree or de- ntal order, upon his rejiort, as to which a further decree or decretal lorder was to be founded, no })arty was at liberty, without a special der, to except to the report, unless he had previously to the Maa- Itf's signing the report, carried in objections, in writing, to the draft lieiwrt, specifying the points in which he considered the Master's |rej)ort to be wrong.^ But here, the judgment uf tht Couii is obtained in the Master's llindings by way of appeal. Our Order 253 provides that " An ap- J shall lie to the Court, upon motion, at any time after the sign- ; of the report until the expiration of fourteen days from the fil- ling of the same in respect of the finding of the Master upon any Imptter presented in his office for his decision, without written ob- ctions or exceptions being previously taken." ^, , „■,. i . . It may be explained here that w:here the expressions " except to hi npm't," and " exceptiotia" are used in the quotations from Eng- cases, they have the meaning here attached to " a^ypealing from hk repoH," and " objections by appeal." The English cases are ap- Iplicable here except where a difference is pointed out ; and in read- ling them they become intelligible by attention to the meaning of [these phrases. .^ . ; -... ui;i j4w!) All parties to the record who are interested in the matter in ques- Ition may take exceptions to the report, and, where there are several Isets of parties, appearing by different solicitors, they may, if they lire not disposed to join, each take exceptions, although their grounds lof exception are the same.^ Creditors too, who have established Itheir claims before the Master, are' permitted to except to the re- Iport, although not parties to the suit ; so, also, are creditors who |iiave preferred their claims, but have been rejected by the Master. The same thing may be done by persons, claiming as next of kin, jthose claims have been disallowed by the Master,* or by a pur- Idiaser under a decree for sale in the Master's office.^ 1 PmAngton r. Lord MunotuUr, 1 Had. 666. t Trunant v. Frtuer, MS. 11 Jan. 1886. J VOtmv. Wilion, 2 MoU. 828, 4 Walker t. Wingfield, Reg. Lib. 180B, B. fo. 10, dted ibid. i Kiry. CUiberry. Reg. Ub. 1812, A. 784, dted ibid. 1 ^1 1 a H62 PKOCBEDINUH IN THE MABTEH'h OFriCE. ^ When exceptions to a report have hcen set down, they are ar^Tj« and diHiKisod of by the Court ; it may i)e mentioned, li<;wc*vtr, the counsel of all parties interoHted in the report, are allitwwUj heard in support of the report, and against the allowance uf the A ceptiuns ; but only the exceptant's counsel can be heard in supp of the exceptions.^ It inav also be mentioned, that, upoD hea exceptions to a Master's report, you cannot read affidavits made sui sequent to it,* or any evidence which was not before the Master wlJ he made the report. In Hldifer v. O'Brien,^ where it waw adiuitt on the argument of the exceptions, that there was no sutKcientev dance before the Master to warrant a different finding by the Mast^ but it was contended, that additional evidence, which had been sin procured, was admissible to shew that the report was incorrect; tlj Vice Chancellor would not permit any argument upon the evidend which was not before the Master, and, on over-mling the exceptioj refused to direct the Master to receive the additioinl evidence, allowed the matter to go back to the Master, with an intimatio that, if he refused to receive the additional evidence, the except might make a distinct motion that he should be ordered to receive il It may be stated here, that, when it ajjpears upon the hearing d the exceptions, that the excepting party did not lay a material pie of evidence before the Master, which he had then in his power, i that the error in the Master's report was owing to such omissioJ the Court will not direct the Master to review his report upon anl other terms than the exceptant's giving up his deposit.* . , ^ The rule which precludes the reading of any evidence which wJ not before the Master, also precludes the reading of any parts ofl defendant's answer, which were not read in the Master's office.' •/t •^^." O) o <^"' It may be mentioned, that if a Master improperly rejects eviden which has been tendered to him, it should form a specific subjects exception to his report. It is to be observed, that it is not competent to the Court up exceptions, to make an order which is not quite consistent witi 1 S Smith, 876. 2 Davii r. Davi$, 2 Atk. 21. 8 8 MmL 44. 4 Hedget t. Cardmmell, 2 Atk. 408. 6 Hand* T. PwAmon, 6 81m. 46. . n, :.,■;,, ,^ /'i PBOCBEDINQH UNDER DECREES AND ORDERS 8o«i I originfti decree ; from the time uf the pronunciation of the de- e, aU the Hubnequent proceedings should Ije consistent with it, and if, upoD argument of exceptions, it ap})ears, that the justice of the > eanuut be got at without an alteration of the decree, it must be heard.' .„ . ; If, upou argument, the exceptions are over- ruled, the over-ruling em has all the effect of contirming the report absolutely, and if because has been set down to be hoard upon further directions, to ome on at the same time with the hearing of the exceptions, the ourt proceeds at once to hear the cause upon further directions.' tjjso, if the exceptions, or any of them, are allowed, but it is not iiecessary to refer the report back to the Master to be reviewed, the hearing of the cause upon further directions may be proceeded with, i the same manner as if the exceptions had been over-ruled.' If the allowance of the exceptions, or any of them, renders it necessary to refer it back to the Master, an order is made referring ^t back to the Master, to review his report, and the reservation of urther directions and of the costs of the suit is continued until er the Master shall have made his report.* It may be mentioned, that where there are several parties appear- : by different solicitors, and each takes exceptions to the report, nd the exceptions are allowed, the costs of all the excepting parties Ivill in general be given to them, although the exceptions are in leach case the same.' It should be recollected, that if the costs of iceptions to a report are not ordered to be costs in the cause, they lot be allowed as such." It may be mentioned, in this place, that sometimes, upon the [irgument of exceptions, the Court will think it right, before it omes to a decision upon the subject matter of the exception, to send it Iback to the Master to supply some defect in his report,' or to make jmquiry into some facts which may be necessary to enable the Court ) come to a proper conclusion ; in such cases, the Court usually ad- I Per Lord QdoB in Brmm r. De Taitet, J>c S98 ; see also B. I. Company ▼. KtigUy, 4 Mad. 16. I I Smith, 879. » iMi 4 Ihid. i \Tmnanty.Fr * ! .:■■ :•->■■ ^/r^' .1 i- &ttft*«rp« V. Bum, 12 Grant, 427. < «KwnJM T. Cunmi^ftom, 18 Grant, 688. .■-■-■■ [f of Montnal V.Ryan, UOnnt, 204. SwmJ T. Terryberry, 14 Grant, 172. «« Ponton, 16 Grant, 866, tcDonM V. Wright, ibid, 662. 80» PBOCEEDINQS IN THE MASTER'S OFFICE. f I ■i 'I ■ 1 ^ discharge the Master's order.^ Where a party appealed on certtini grounds against the Master's report, and some of these grounds were! allowed, and the report referred back to be reviewed : Hdd, thi an appeal against the further, report thereon would not be foil .. matters disposed of by the first report, and not objected to on thj first appeal.' Semble. — Appeals from the Master's ruling, as well as appeals from his reports, should be to the Court, and not Chambers.' Under the order of this Court, abolishing exception to the Mabter's report, the appellant occupies the same position i under the practice he would have done before the Master on ing in exceptions, and with that single restriction the whole ca is open to him on the appeal.^ ' ''•'■■' -f i i ^*i^ i Whelre a report was referred back to the Master at the instanci of the defendant, a mortgagee, to ascertain a particular fact, i the Master, without being directed so to do, called upon the de] fendant for an affidavit shewing what moneys he had received, &c., and the defendant filed his own affidavit shewing that the mone^ with which he was chargeable had been received by him at daii subsequent to what the Master had previously found by his i * and which he varied accordingly : Held, on appeal, that the was wrong in thus proceeding, and the report was sent back to reviewed in this respect.* Where both parties had proceeded the assumption that the evidence before the Master in taking th^ accounts under the decree would be before the Court on furthei directions, and had, in consequence, allowed mutual claims of Id] terest and commission to be submitted by the Master to the Conitj without his setting forth sufficient to enable the Court to dispi of them, and the report was besides so expressed as to render I defendant's chargeable with sums for which it did not appear have been intended to make them liable, the Court, on fiirthei directions, referred the case back to the Master to review his rej port." I reporij 1 MeDofiald v. Rodger, S Grant, 76. 8 JtoM T. Perrault, IS Onuit, 206. 8 Jay y. MeDonnell, 2 Cham. R. 71. A DavidMon v. Thirketl, 8 Grant, S80. 5 WiUidnu v. Haun, 10 Grant, 663. 9 Oould y, Burritt, 11 Grant, 284, ■ '■*■ ■' ' y* rf,j J ;■/. .V >ii A>*~ PROCEEDINGS UNDER DECREES AND ORDERS. 869 IjtO. Proceedings to be taken on Appealing from Master'* Report, The party intending to appeal prepares his notice of appeal which litaUt (u briefly as possible the objections he has to the Master's pro- Icttdxngs. This is served upon all the parties entitled to notice of Ifroceedings in the Master's office. It need not be served upon parties \vhohave merely been served unth an office copy of the decree and have inotheen made parties. The motion is set down for argument aJt the \mi%ptdfled in Order 416, and notice of it is served on the same I parties as the notice of appeal. It is a seven days' notice under \Orderm. ^ . . - . The appeal, however, cannot be heard in the month of June. I Order 420 provides that, '* No cause set down for argument of de- murrer, or by way of motion for decree, or on bill and answer, or on appeal from a Master's report, or on further directions, or on I acj petition mentioned in Order 418, adjourned over from the day for which such cause was originally set down, is to be brought on I for argument during the month of June ; and, except on circuit, no cause is to be heard during the month of June, unless counsel cer- tify that no point is involved in it, on which it may be necessary I for the Court to reserve judgment." ]y! 'uJi 81. Review of Report, 'i^xi. Although the usual course by which a review of a Master's re- port is to be procured is by appealing from it, there are many cases in which the Court will direct the Master to review his re- port without requiring an appeal taken ; or, if there be an appeal, will direct it to be reviewed upon grounds independent of those taken on the appeal ; and sometimes the Court will direct a Master to review his report, in order to afford a party an opportunity to appeal.^ A reference back to the Master to review a report which has not been appealed from may be made upon the hearing for further [ directions: and is frequently so made when the Court is not ntiflfied with the Master's finding, as where the Master has not 1 rdBmot T. Welion, 1 Dlok, SOO. 870 PROCEEDINOS IN THE MASTER'S OFFICE. •■n ^ found sufficient facts for the Court to found its judgment upon.H So, also, if the Master has exceeded his authority, it mil eithe direct him to review his report or take no notice of his finding. We have seen before that, where the report is the coneeqaeno of an order pronounced upon petition, or is upon the taxation costs, the Court will, if the objections to the report are not appa-l rent upon the face of it, entertain a petition to refer it to the Masj ter to review his report. sv- ■iVv; 1 .1 In some cases, also, the Court will direct a review of the Mas-I ter's report upon application by motion ; thus where there been some omission or error in the report which would prevent thft matter being properly raised by exceptions, the Court has, upon motion, ordered the Master to review his report ; as where, uponl a reference of an examination for impertinence, the Master cer-[ ' tified, generally, that the examination was impertinent, the Vieel Chancellor, on motion, referred it back to the Master to review higl certificate, and state in what respects he considered the same in-j pertinent.2 jjj^j. , tAa,iU Jt^' i::*-*/!!? ~.:y] r-Mri/fU »^ And, even where exceptions to the report have been heard I disposed of, the Court has, at the instance of a vendor, directedl the Master to review his report, in order to give him an opportn{ nity of completing his title.^ The Court has, also, as we haW seen,* referred a report, as to title, back to the Master to be re-] - viewed, upon application, by motion, even after the report ha been confirmed. t.j iv.tvr, .fr.,;.>q

; -"ifMiiW- :iMt.i: I?- i;f* Hi?:' .t-r:;r .. In general, however, the Court is very cautious in admitting ap| plications to review a Master's report after it has been confirmed ;j and it is only in cases of fraud, surprise, or mistake, that it will 1 ^ permitted ; ^ and, even then, it will not be allowed unless a ver strong case is made.° 4 /^ Where a reference back to the Master to review his report directed, the Master is, as of course, at liberty to receive furthe 1 Twm»r V. Turner, 1 Diok. 31S : 1 Swanst 166, u. 8. C. , a Anon. 3 Had. 246 •J 8 As to the oues ia which the Court will send it iMOk to the Muter to review bU report u to t > see ante. 4 Ibid. 5 Drought v. Bed/ord, 1 Moll. 678. 6 Turner v. Turner, 1 Ju. & W. 39. PROCEEDINGS UNDER DECREES AND ORDERS. 871 Where the Court, on a reference back to the Master, Idoes not mean that he shall take further evidence, the order con- Itiiiig a direction to that effect : unless the reference back is lexpressed to be for a purpose on which further evidence cannot be iDaterial. The Court will, at almost any stage of a cause, make a lipecial order for the correction of slips in a Master's report.^ A motion to correct a clerical error in a report should be on Inotice, unless on consent of all parties : ^ though it was held in an learlier case that an order to correct a clerical error in a Master's Ireport will be granted ea; jjarfe.^ - \ ''^* iwhis report u to tti ; , 32. Setting Aside Report. . ,, In a partition suit, a gentleman who was not a solicitor, nor a elerk of any solicitor in the cause, was employed by the defend- tnt's solicitor to attend to the case for the defendant, and gave a consent in good faith, but inconsiderately, and without the know- ledge or authority of, or communication with, the defendant or his Bolicitor, to a mode of partition suggested by the opposite party. HM, that the consent miglit be relieved against on terms, it not ippearing that the plaintiff would thereby be prejudiced.* ; n In a partnership suit the usual decree had been made, and the Master made a general report finding that a certain balance was due &om the defendant to the plaintiff, but that all the partner- ship assets had not ))een realized. After the report had been Bgned, the defendant applied for leave to carry into the Master's office and prove a charge and discharge. It appeared that the de- jfendant had been guilty of gross negligence in omitting to bring se papers into the Master's office, and no explanation was now ittempted of his neglect to do so ; but the Court was of opinion ihat the report was erroneous in finding a sum to be due from the one party to the other before the assets were realized and the lia- ties paid ; and, as the report which had been made could not be Mted upon, the defendant's application was granted on terms.* V -": >■-.' » **» T. Oreoti, 8 Onuit, 821. k. ^^- .* ?■ «t72 ON FURTHER DIRECTIONS. ^> fj .•:( M';i CHAPTER XXVI. ON FURTHER DIRECTIONS. ^XSS^" When a decree is interlocutory, and the consideration of furtbeJ directions has been reserved until after the trial of an issue, h\ or until the Master shall have made his report, it is necessary, ig order that a complete termination should be put to the suit, that it should be wound up in all its parts, that it should be seij down again to be heard for " further directions," which procesi must be repeated as often as any further directions are resem by the last decree pronounced.^ Where the consideration of further directions has been reserve by a decree till after the Master has made his report, the Con will not allow a case to be set down for further directions before report has been made, even though it is found that the refereno to the Master has become useless ; thus, where a decree direct an issue, and also directed an inquiry before a Master, and re< served the consideration of further directions until after the and, after the report, the Court would not permit the cause to set down upon the further directions without a report from th^ Master.^ The proper course, in such a case, would have been have obtained a variation in the decree by rehearing-^ The Court also refuses, in general, to interfere after a resenatia of further directions in a summary way,* unless liberty has given to the parties, by the decree, to apply to the Court, as the; may be advised, which, however, is very seldom done where thj decree reserves the consideration of further directions. But although the Court will not, after such a reservation, ent tain a summary application relating to the general matters of suit, it will, it seems, entertain applications for collateral matt 1 Where the consideration of costs is reserved as well ag of further direotiont, the cause mmtilwl set down * upon the matter of costs.' 2 Dkrnn v. Olmxrii, 1 Ves. J. 168. y^, 8 1\M. : perhaps the necessity of a rehearing might hare been obvitted by gotnf beio* "*' under the decree and then waiving the mqui^. i Cooke V. Gtevn, 3 Atlc. 689. ON FURTHER DIRECTIONS. 873 h ftfl the appointment of a receiver.^ The Court will also, npon nt, permit a bill to be dismissed, without requiring the cause be set down on further directions.' jJti 'ItuTfJ) It is to be noticed, that it is only where further directions are served, by a decree or order, that it is required to set the cause for hearing for such further directions ; where a decretal or- is made upon motion, such as a reference to a Master in an bterpleading suit to enquire into the title, the Court will proceed on the report on motion.* Thus, in Walters v Pyman,* where, OB a reference of this description, the Master reported against I vendor's title, the Court, upon motion, dismissed his bill with «ts. So in Shore v. Collett,^ where the Master reported in favour the vendor's title, and exceptions were taken to the report, jrhich were overruled, the Court entertained a motion that the Inrchaser might pay in the residue of his purchase money and Dterest. So, after a decretal order, made on motion, for an ac- oontof the incumbrances on the estate, and' to settle their priori- lies, an order for further directions and costs appear to have been ie on petition. .i:u •;vff- f f.ir > '■ t, X Further directions upon a separate report, are generally given r the confirmation of the report, and so are all such further itions as are necessary upon a report made by the Master, upon obtained. lers -.-.''.■. J (It i*!? »'l it hi i*li' \ ri,i' ifwl'ffji At the hearing, upon fiirther directions, the Court will make ach farther order in»the cause, as, upon reading the Master's report, ppears to be consistent with the justice of the case as it stands |ipon the decree and report ; unless it is dissatisfied with the manner I which the Master has executed the duties imposed upon him by lie decree, in which case it will, as we have seen, send it back to Master to review his report, or such part of it as the Court sees on to be dissatisfied with. The Court, however, will not send back to the Master to review his report, for the purpose of ieducing consequences from the facts which he has stated in his liMn.llVCT.ieo. 'Co(i«r,2»i. fi ll 1 'i ! -i ^ 874 ON FURTHER DIRECTIONS. report, but will itself draw the conclusions from the facts sUtedj as it will where the Master has drawn conclusions from the facUl has stated, which conclusions, but not the facts, are considen erroneous.^ In general, if the case is such as will anmit of it, the Court upon the first hearing for further directions, make a final de and, when the reference to the Master has been merely to preliminary inquiries, it will, when the case comes before it up the report, declare the rights of the parties in the matters in questioi If the declaration of the Court, or the result of the former inquirid render any further reference to the Master necessary, the Coa will take this occasion to make such further reference, reservin again the consideration of the further directions until after Master shall have made his further report, and this it will repeat i often as it may appear to be necessary. It is to be remarked, that, where a question has been raised up the pleadings, but no direction or reservation of it has been giTcj with respect to it by the decree, the Court will not take it in] consideration upon further directions : thus where, in a suit for I specific performance of an agreement for the sale of a copjhd estate, the defendant insisted by his answer that he was not boo to perform his contract, unless it could be shewn that the copyholda of the manor were entitled to dig marl and brick earth on the 1 holden by them, and the original decree merely directed the reference as to title, the Court on the hearing upon further directionj refused to direct a reference to the Master, to inquire whether i copyholders of the manor were entitled to dig marl and brick ( &;c., (although a petition, praying that it would do so, had presented, and ordered to come on with the further directions.) up the ground that, as the point was raised by the answer, if the Coo had thought it necessary to inquire into the fact, a direction to I effect would have been contained in the original decree, and that,| grant the prayer of the petition, would be to alter, entirely, decree made at the original hearing, which it is not competent the Court to do at the hearing on further directions.' 1 Biek T. Motlv, 2 M. & K. 312. 2 Adami t. Ctaaton, 6 Ves. 655. 8 LtOrand v. Whitehead, 1 Ruas. 300. '.M r'l ON FURTHER DIRECTIONS. 876 In fact, the Court will not alter a decree in the minutest particular fithout a reheaiing,^ unless in the case of an inlbrmatiou relating 14 charity, in which case the Court will correct an omission of the i decree upon further directions.'^ . .; j^ ^, ,^ It seems, formerly, to have been considered that no direction buld be given at a hearing upon further directions, for the comput- lion of interest, where the question of interest had not been erved by the original decree. In Ryvea v. Coleman,^ it was il, by Lord Hardwicke, that, generally, no interest could be Uowed where it was not ordered or reserved by the decree ; but at, notwithstanding, there was no particular reservation of Lterest by a decree, yet there was a discretionary power in the burt to allow interest upon special circumstances. In Chwrrvp v. |fo(xi* his lordship also observed, that the reservation of further ctions in general had not been taken to reserve interest, and interest ought to be expressly directed by the decree to be erved; but he admitted that there might be a case where, it been pointed out in the cause, the Court would take interest I be reserved on such general directions ; that after a direction of jtrial at law, reservation of general directions would be taken to iiude costs, interest, and everything ; but he held that in the tton case of a reference to a Master, it was taken to be other- ! ; and, in Hearle v. Oreerihank,^ interest not having been erved by the decree. Lord Northington said he could not order it [further directions, but recommended the plaintiff to rehear the , merely to introduce a reservation of interest. In a previous e, however, Ooodyere v. Lake^ Lord Hardwicke had, according report in Ambler, held it to be clear, that, under the general ervation of further directions, the Court might give interest, ough not reserved by the decree, and referred to a case of The MmUs Bay Gompany v. Sir Stephen Evans, in which it was pe ; and, in Sammea v. Rickman,^ and Margarum v. Sandiford, ! cited, it was so held accordingly. And, in Creuze v. Hunter,^ N Roslyn said, he had thought that if interest was not given UwJa*^*roofa! T. lord Hinehiribrooke, 13 Ves. 887—394. M^tuf***^ T. Wkiteley, U Ves. 241. IDictsro. M Bro. 0. C. 818 ; 8 V6fc J. 164, 8. C. .-* : i. 876 ON FURTHER DIRECTIONS. -4 ^ • .1: • 5: by the decree, or reserved, it was matter of rehearing, and that strictness, this was the rule, but that, if the point was made un the hearing for further directions, he saw no objections to its beii then given if the case would warrant it ; and he expressed himi satisfied with the authority of Margarum v. Sandiford that might be so.^ The practice, therefore, of directing the computatiol of interest, upon further directions, where it has not been reservJ by the original decree, is now considered as established ; and A only will the computation of simple interest be so directed, bii where the Court finding large sums of money in the hands of 1 agent, receiver, trustee, or personal representative, it will direct I Master to ascertain tl j balance from time to time in the hands the accounting party, and to compute interest on them.^ And I Court has even gone the length, on further directions, of cha an accounting party with interest on the balance in his hands, only where there was no reservation of the question of interest the original decree, but even where the original bill did not pn that they might be so charged. .. This was done in the case of executory, in Turner v. Twrwy and, in Pearse v. Qreen,^ where an agent appeared, by the Maatej report, to have had large sums of money in hand, the Master of I Rolls referred it back to the Master to ascertain the balances in I agent's hands, and to compute interest upon them. It is to I observed, that, in the above cited case of Turner v. TurMt, direction to compute interest, notwithstanding there was prayed by the bill, was founded on the circumstance that, at time the bill \^as filed, there did not appear to have been money in the hai'.ds of the executors, and that the balances subsequently tr the institution of the suit, and, therefore, could 1 be adverted to in the original bill ; and the same ground app have furnished the foundation of the decree in WUson v. ifeM" in that case, the bill originally prayed the redemption mortgage of an estate of which the mortgagees were in at the time it was filed, the value of the estate, (which, since mortgage, .had been greatly augmented by allotments under Enclosure Act,) was not, at that time, known, and it was supp ■5^ •M 1 See also, Maghee y. Mahon,! MoU. 147 i Pearu ▼. Qreen, 1 Jac. ft W. 185. 8 1 Jaa & W. 48. 4 Ul>i tup.: aee also Qood v. EUvntt, there cited. 6 1 Bum. 6W. »0,4^ai ON FURTHER DIRECTIONS. 877 there would be a balance found due to the mortgagees ; lueutly the bill did not pray an intereet against them. It 1, however, upon the Master's report, that the whole of the cipal money and interest due on the mortgage had been paid [before the suit was instituted, and, therefore, that there was a , balance due from the mortgagees to the mortgagoi-s ; under iciicumstances, -,vlien the cause came on, for further directions, on the Master's report, the Court directed rests to he made, interest to be computed on the balances from time to time ie hands of the mortgagees. From the above cases it might be inferred, that it is in those cases ily, in which the circumstances were such, at the time of filing the II, that a claim for interest did not or could not be known to t, that the Court will, upon further directions, make an order to ompute interest upon balances, although there is no prayer for nterest in the bill ; this, however, does not appear to be the case, , both in Pearae v. Oreen} and in Oood v. Blewitt, there cited, be bills were filed for the express purpose of enforcing an account ad payment of balances, and decrees for interest were made, al- ugh no interest appears to hav9 been prayed, nor was the sideration of it reserved. . .■.».. >,,. . -. — It is to be remarked, that it is oiJy in oises where it appears, om the Master's report, that there is an equitable right to charge I accounting party with interest, (as where an agent, or trustee, r personal representative, has, for a long time, had a considerable Dm of money in his hands, belonging to the parties in the suit,) at the Court will direct a computation of interest when it has not «n reserved by the original decree ; where this does not appear ' the report, the Court has no foundation upon which to make pch a direction, and, it seems, that it will not entertain a petition brthe mere purpose of bringing before the Court facts which do otherwise appear, upon which to ground a direction to the er to inquire into balances and charge interest. ^ InJu. ft V. 185 |! HnM ▼. Priu, 14 Vm. 602 (first edition). The author thinlts it rigrht to caU the reader's atten- aon to » very material discrepancy between the report of Parnell v. Price, in the original and KMiid editions of Mr. Vesey's reports. In the report, as it appears in the original ediUon, it ia ■teted that < the directions were given for interest and costs upon the Master's report, and that we inquiiy prayed by the petition was refuted ; ' whereas, in the second edition, it stands thus ; Thedirecttons were given for interest and costs upon the Master's report, and the inquiry prayed ^w petition was oranled.' In the first edition, also, the followi^ passage occurs, wbioh ia «oUy omitted to the second, viz. : ' The Lord Chancellor and the Reffistrar (Mr. Croft), being Wiud to by his Lordship, said, there was no instance of such a petition ; ' and this ai^jMUs to M in cc^ormity with the decisions in Creuze v. Hunter, 2 Ves. J. 167 : and 4 Bra C. C. 1£7, S. C. •M Bniere v. Peniberton, 12 Ves. 387 ; see also LeGrand v. IThitehead, 1 Russ. 300 i. i 878 ON FURTHER DIRECTIONS. And not only will the Court, in caes where upon the decree, the report under it, a proper gi'ound appears for giving Intep direct the computation of interest on further directions, though the! question of interest has not been reserved by the original decree] but it will, if the report makes a new case against the defendant for charging him with sums which, but for hiu wilful default he| might have received, make a direction for so charging him further directions, even where it was prayed by the bill and refus at the hearing from deficiency of pi-oof ^ So, although a receiver has been refused upon the hearing of the cause, yet if, upon the report, a new state of facts appears, e. g., balance in the hands of the defendant, the Court will entertain renewed application for a receiver.^ The Court, however, will not, (even though anew state of circum-j stances appears by the Master's report, shewing that if the facts, they are stated upon the report, had been before the Court at thd time when it pronounced the decree, it would not have given the! directions contained in the original decree,) make any order, upoB further directions, which will have the eflfect of varying or impugn-j ing the original deciee, and therefore, where a prior decree had! ordered the costs of a mortgagee to be taxed, it has held, upon! further directions, that he would be entitled to be paid those! costs, although it appeared, by the report, that he was paid off! before the commencement of the suit, and that he had set up aD[ improper defence.' Upon the same ground, when costs of a party have, at the hearing,! been ordered to be taxed as between solicitor and client, the Cocrtj will, at the hearing, upon further directions, direct the subseq costs of the same party to be taxed upon the same principle. Itl will not, however, consider itself bound by a previous direction tax costs, as between solicitor and client, made upon petition ai by consent, where, upon further directions it appears that there u| no case to warrant such a mode of taxation/ 1 Franklin r, Beam%»h^i MoU. 883. S Attomey-0«neral t. 3%« Mayor o/Oalway, 1 Moll. 05. S WUton V. Mtteatf; 1 Run. 680. 4 Tret»9ant t. Frater, RoUa, Aug. 1880. ON FURTHER DIRECTIONS. 879 As the Court will not allow any variation to be made in the decree upon the hearing of the cause for further directions, )it will refuse to entertain an objection to it on a ground which jht have been made at the original hearing ; thus, where a suit [instituted by a solicitor, for the payment of his bill of costs, 1 it appeared, by the answer, that the biU of costs had not been ned conformably to the act of Parliament, whereupon the bill I (l.uly signed, and the fact of the signature put in issue by a npplemental bill, and a decree was made at the RoUs, referring it to ! Master to tax the bill, &c. — Upon the case coming on before ord Brougham, on appeal from the order made by the Master of he Rolls on further directions, his Lordship held, that the defect in suit, as originally instituted, arising from the bill of costs having been duly signed, was not cured by the supple- mental bill, and that the bill ought, at the original hearing, to have I dismissed with costs ; but as that had not been done, and the had not been appealed from, it was not open to the defendant )take the objection upon further directions.^ I But seveitd of the above propositions have been qualified by sions in our own Court. ^ ■ ' ,.• . s., , The decree being defective in several particulars, the Court, on her directions, supplied, as far as possible, the defects of the without a rehearing of the cause.^ Under a decree for : partnership accounts, in which the Master was directed to special circumstances, and make all just allowances, the i8ter reported that, in taking the accounts he had, amongst other ^ charged one of the partners for his board, &c., with the fir after the dissolution of the partnership : Held wrong, and i the objection could be taken on the hearing on further direc- Where a decree which reserved no further directions, that a sale or partition of the property in question should M place according as the Master might consider either course pre for the interest of the parties, but contained no directions as I conv<>vance or possession, or as to the execution of the deeds, the Master reported in favor of a partition. The Court, on aon, ordered the execution of conveyances, and the delivery of ten? '• S^P*'- 1 R- * M. i»i. yiim ». o-LoiM, I Onmt, 1S6. . , i^v^ m T. 880 ON FURTHER DIRECTIONS. -4 9 the possession of the property agreeably to the finding of Master.^ Where a decree, pro confeaao, reserves further directioi and it is not necessary to serve notice on any of the parties, cause may be set down on further directions, at any time before! sitting of the Court.* ..:«.(.. ' ''P ^^^^ '-4: ■It 1 ■ V', • — " i V: li r .o Section II. — Setting dovm on Further Dvredwm .<>,■} "' •■•''■'•• ^ Where there has been no appeal, and the report has been con£ by being filed fourteen days : or where in the case of an appeal, i| has been dismissed, the cau*»», V.C. , in Stewart v. Fletcher, 18 Grant, 26. 4 iKs' '^**''^' ^ ^- ^- ^- ^- ^^ '» ««*^^y *• ^eeMy, 21 L. J. N. S. Ch. 4 8. 'llQmnt.SM. « Per Mowat, V.C, In McOiU v. Courtiee, 17 Grant, 278. 32 1i 882 PROCEEDINGS IN THE MASTER'S OFFICE, An order made upon further directions is, in fact, a decree oft Court ; is drawn up, passed, entered, worked in the Master's ofi and enforced as other decrees. CHAPTER XXVII. PROCEEDINGS IN THE MASTER S OFFICE UNDER AN ADMINISTRATIffl •^ ORDER OR DECREE. ^ :li Having considered the general mode of proceeding in the Ma office ; the practice in particular matters, will now be consider ( and, first as to " Administration." Where a party interested in the estate of a deceased per whether as creditor, heir, devisee, legatee, or as next of kin, desii an account to be taken of the estate, and the dealings of theExe tor or Administrator to be required into, he was formerly obliged! I file a Bill ; but our order provides a remedy in simple matters by waj of what is termed an " Administration Order." The cases in which this order can be obtained, and the model obtaining it, have already been pointed out. The practice on iti the Master's office will now be considered. The decree or order made at the hearing of an administration! ordinarily directs accounts to be taken of the personal estate oft deceased ; of his debts ; of his funeral expenses ; and of the legaci^ and annuities bequeathed by his will; and orders an inquiry to I ' made as to what pai'ts of his personal estate are outstanding or i disposed of. If the administration extends to the real estate, i decree or order further directs inquiries to be made as to whati estates the deceased died seised or possessed of, and as to the incun brances affecting the same ; and usually directs the real estate tot sold with the approbation of the Master ; and sometimes an is directed to be taken of the rents and profits received by i trustees. JI ADMINISTRATIffl UNDER AN ADMINISTRATION ORDER OR DECREE. 883 let, a decree of tii^l jjjg enquires usually directed by an Administration Order are the Master's offieB««> set forth in Schedule J., referred to in order 187. - " The order having been obtained, the next step is to bring it into [e Master's office. For this purpose a copy is filed with him, and I first duty is to ascertain whether there are any persons interested I the estate, who are not already before the Court. Where there I a win, it, or probate of it, should be produced before him, which shew in most cases aU the parties interested in the disposition [the estate. Where there is no will, evidence should be given be- him. Either viva voca, or as is usual, by affidavit, showing no are interested either as heirs, or next of kin. Having ascertain- Ithe names of these parties, he proceeds to direct that they be served [ith an office copy of the decree, endorsed with the notice re- to in Order 60. These persons are not made parties in the ster's office, but it is the duty of the Master " to see that all Lve been duly served with an office copy of the decree as provided ir by the general order, before he reports, and generally speaking, more he proceeds with the reference on the other matters embra^ied [ikdm^ee."^ i On reference to this notice it wiU be observed that no time is entioned when the proceedings in the Master's office will be taken. fo give this information to the party served, a warrant " to consi- br" is to be attached to the office copy of decree served, and then jhe party will have full notice of what has been done, as well as o^ he time when further steps will be taken. This Order 60, (whicli I taken from Order 6, of the Orders of June, 1853, s. 2, though it is bore extensive,) provides that " In all the above cases, (referring to per 58,) the persons who according to the practice of the Court, rould be necessary parties to the suit, are to be served with an of- I copy of the decree (unless the Court dispenses with such ser- |ice,) endorsed with the notice set forth in Schedule A. hereunder itten, and after such service they shall be bound by the proceed- i in the same manner as if they had been originally made parties )the suit; and upon service of notice upon the plantiff, they may end the proceedings under the decree. Any party so served may ipply to the Court to add to, vary, or set aside the decree, within Durteen days from the date of such service." It may here be ob- I I PwMowkt, V C, in Bngl^h v. EnglUh, 12 Grant, 443. EM 1 • ' a 884 PROCEEDINGS IN THE MASTER'S OFFICK sr; (i that Order 587 declares that the Master, instead of the ' " may ako dispense with service of the decree upon the persons i ferred to in Order 60 ; and in such case he is to state the reason therefor in his report." , It is not necessary that the return of the warrant " to considerl should be delayed until the expiration of the fourteen days given I the party served within which he may apply to the Court to to, vary, or set aside the decree. The Master appoints the timeij his discretion, having regard to the residence of the parties to 1 served, and their ability to attend if they feel disposed to do so. warrant to consider is also served upon the party, upon whom notice of motion for the Administration Order was served; or wh a Bill was filed, upon those who answered ; a party against wb the biU was allowed to be taken pro confesao is not entitled to i notice of the proceedings in the Master's office. It was held Jackson /. Mathews — ^Re Pattison^ that although proceedingj i vl . Master's office may, under the general order, be taken ex\ against a defendant, who has allowed a bill to be taken ^*o confa against him, that mode of proceeding is irregular, where an ministration Order has been obtained upon notice without bill filej If either of the parties entitled to the notice is aji infant, a j ad litem must be appointed before any proceedings are though the office copy decree, notice and warrant be served up the infant in the same way, and under the same rules as govern I service of a bill on an infant. To save time and expense it is i to serve the office copy decree, notice and warrant at the time as the notice on which a guardian ad litem is appointed,! served. The guardian appointed, will find it his duty to atl upon the warrant to consider. The rules to be observed in making parties in the Master's off and the distinction between making these parties, and serving i with notice of the proceedings in the Master's office, are clearly 1 down in Eolph v. U. G. BuHdirig Society,^ and in Eriglisk v. E^ lish, above cited.* • AU parties entitled to notice having been duly served they now fairly in the Master's office, and there need be no further! 1 12 Grant, 47. 8 12 Grant, 448. S 11 Grant, 276. W. vKl: c\>ER AN ADMINISTRATION ORDER OR DECREE. 885 I or delay in serving them with any future warrant/ ai-ci/igr I now bound by the Master's directions, as entered from time to ne in his Book. ;' , ■ ,■ a. [On the return of the warrant to consider the Master proceeds to ke such directions as are requisite. In an ordinary case of ad- stration, whether it be under an order obtained without bill ■ under a decree obtained on a bill, the first step is to advertise for ik^rs. The Master directs the publication of the advertisement fintioned in Order 475, and his direction may be entered in his oil in the following terms : — ,;.=■.,>.»; "Idkect that an advertisement for creditors under Order J^75 I pvUished in the Newspaper^ once in each week for the ' m/mediately preceding the day of ^ by which ti/me <,eredU(yr8 of the said A. B., deceased, are to send in their dai/ms ginst hie estate to ^ Now 1 appoint the day of ^ at 10 im., to adjudicate on the said clavms." I further direct that the making of the affidavit required by Order 80 he adjourned until further directions are made concerning it.^ And [ further direct that the executor do, on the day of "^ llOa/nUyfle at my office the following a,ccounts viz ; * ^ "' /. An amount of the present estate not specifically bequeathed of deceased, the testator (or intestate) conne to the hands of I said , or to the hands of any other person or persons by ^ii order or for his use. ,,, , n . ,..,.,, ,., //. An account of the said testator's (or intestate's) debts (and so I following the terms briefly of the decree). ' ' ' " ' " Our Order 475, directs that " Every advertisement for creditors ffecting the estate of a deceased person, which is issued pursuant 1 Some newspaper published in tlie vicinity where the deceased lived, or where his creditors (if any), . n"'^^ rmonably be supposed to be found. jUipdly "three" weeks. I ne ttme ^ipointed for creditors to send in their claims. I The executor, or his solicitor, according^ to the direction of the Master. t A dijr subsequent to the time appointed for the claims to be sent in, usually within three days tberesfter. * '^J*^ ^ found in practice that this is the most convenient mode of working: these Orders, as it is m most cues impossible to say when the executor will be in a position to make this affidavit, but 1 mT ^""^ ^ sourse be made before the Master does actually adjudicate on the claims. 1 nl jy_*P Polnted by the advertisement to adjudicate on the claims. ^ *'*'?* iBust be followed strictly ; the accounts above mentioned are those usually dinotad by the onBiary adrntnistratlon decree. -I -I i • ^ m 886 PROCEEDINOS IN THE MASTER'S OFFICE. to an order, is to direct every creditor, by a time to be therebJ limited, to send to such other party as the Master directs, or to hJ solicitor, to be named and described in the advertisement, the nan and address of such creditor, and the full particulars of his clain and a statement of his account, and the nature of the security (if any held by him ; and such advertisement is to be in the form setoutii Schedule Y. form No. I. with such variations as the circumstances ( the case require ; and at the time of directing such advortiseraent I time is to be fixed for adjudicating on the claims." And Order 476, that "No such creditor need make an affidavit, ( attend in support of his claims (except to produce his security, i any), unless he is served with a notice requiring him so to do j hereinafter provided " by Order 482. Order 477 provides thai " Every such creditor is to produce before the Master, the securiJ (if any) held by him, at such time as is specified in the advertisen:ei| for that purpose, being the time appointed for adjudicating on claims ; and every creditor is required by notice in writing to begivJ to the executor or administrator of the deceased, or by such oth party as the Master directs, in the form set forth in schedule V, foi^ No. 2, is to produce all other deeds, and documents, necessary I substantiate his claim before the Master, at such time as is specif in the notice." And Order 478 that, " In ease a creditor neglected refuses to comply with the next preceding order (477), he is not! be allowed any costs of proving his claim unless the Master otha wise directs." When the claims are received by the person dei nated in the advertisement. Order 479 provides that, " The exec or administrator of the deceased, or such other party as the Mai directs, is to examine the claims sent in pursuant to advertisement, and is to ascertain, as far as he is able, to which j such claims the estate of the deceased is justly liable." AndOri 480 that, " The executor or administrator, or one of the exe or administrators, or such other party, either alone or jointiywl his solicitor, or other competent person, or otherwise as the Mil directs, is, at least seven clear days before the day appointed | adjudication, to file an affidavit which may be in the form No. I schedule V., verifying a list of the claims, the particulars of have been sent in, pursuant to the advertisement, and statinf I which of such claims, or parts thereof, respectively, the estatoj the deceased is, in the opinion of the respondent, justly liable, I UNDER AN ADMINISTRATION ORDER OR DECREE. 887 e to be thereb • directs, or to 1 sement, the nan liars of his clain e security (if anj^ ihe form set out i 3 circumstances! 11 advertiseraentj ike an affidavit, ( ice his security, ig him so to do I 1-77 provides m aster, the sec I the advertisenieil djudicating on ta writing to he givnj i, or by such otb in schedule Y, nents, necessary I time as is specifi creditor neglects I (477), he is noil 3 the Master otiid y the person des| ;hat, "Theexeu' 3arty as the Mai pursuant to is able, to whickj liable." AndOif ne of the execil lone or jointly «l rwise as the Mw e day appointed! in the form No.f^ particulars of ^ lent, and statiiigl tively, the estiJaj at, justly liable/ belief that such claims, or parts thereof respectively, are tly due, and proper to be allowed, and the reason for such ief." And Order 481 that, " In case the Master thinks fit so to ct, the making of the affidavit referred to in Order 480, is to be toned till after the day appointed for adjudication, and is then be subject to such directions as the Master may give." Order 82 provides that, " At the time appointed for adjudicating upon he claims, or at any adjournment thereof, the Master may allow ny of the claims, or any part thereof respectively, without proof by be creditors, and may direct such investigation of all or any of the lims not allowed, and require such further particulars, information : evidence relating thereto, as he thinks fit, and may, if he so think , require any creditor to attend and prove his claim, or any part |iereof ; and the adjudication on such claims as are not then allowed (to be adjourned to a time to be then fixed." I Order 483 provides that, " Notice is to be given by the executor r administrator, or such other party as the Master directs; I. To every creditor whose claim, or any part thereof has been Powed without proof by the creditor, of such allowance, and such tice may be in the form No. 4 in Schedule V. I II. And to every such creditor as the Master directs to attend and ove his claim, or such part thereof as is not allowed, by a time to I named in such notice (which may be in form No. 6 in schedule V.), ) being less than seven days after such notice, and to attend at a ne to be therein named, being the time to which the adjudication jereon has been adjourned ; and in case any creditor does not com- ' with such notice, his claim, or such part thereof as aforesaid, is Ibe disallowed, unless the Master thinks fit to give further time." M Order 484 that, " A creditor who has not before sent in parti- I of his claim, pursuant to the advertisement, may do so seven days previous to any dfcy to which the adjudication is oumed." Order 485 provides that "After the time fixed by the prtwement no claim is to be received (except as before provided of an adjournment) unless the Master thinks fit to give eial leave upon application, and then upon such terms and condi- 1 as to costs and otherwise as the Master directs." And Order V Miat " Where an order is made for payment of money out of 888 PEOCEEDINOS IN THE MASTERS OFFICE. 5^ Court to creditors, the party whose duty it is to prosecute sui order is to send to each creditor or his solicitor (if any) a notil that the cheques may be ol^tained from the Registrar ; and sui notice may be in form No. G in schedule V. and such party is, whi required, to produce any papers necessary to enable the creditors! receive tlieir cheques." Order 487 provides that " Eveiy notil required to be given by the order from No. 467 to No. 480 inclusi^A is, unless the Master otherwise directs, to be deemed sufficiently civj and served if transmitted by post, prepaid, to the creditor to served according to the address given by the creditor in the claii sent in by him pursuant to the advertisement, or, in case the crediti has employed a solicitor, according to the address given by him. Order 474 provides that, " In taking an account of a deceased's pei sonal estate under an order of reference, the Master is to enquire i state to the Court what^ if any, of the deceased's personal estate i outstanding or undisposed of; and is also to compute interest on tli deceased's debts from the date of the decree and on legacies froJ the end of one year after the deceased's death, unless any othel time of payment is directed by the will. The claims of creditors, and the accounts of the Executor or Aq ministrator supported by the proper affidavit having been broughl in ; the proceedings upon them will now be considered, and first i to the claims. One object of the Court in framing these order! evidently was to reduce expense. Under the old practice the credil tor was obliged in every, case to verify his claim by affidavit, and where any party insisted upon it, the Master was bound to see tha the claim was irrespective of the affidavit, duly proven by sucl evidence as would be necessary at nisi prius before a jury. Bui now neither affidavit, nor viva voce evidence is necessary unless tlia Master specially directs it, and it is presumed that in carrying oulj the spirit of the orders, he will not require any such evidence unle there is a fair doubt of the correctness of the claim. The orden have deprived him of more of the power which he possessed unde the old practice, for under Order 482 he may make such directioD as to proof of the claim as he may think the justice of the case i quires. The Orders evidently contemplated that claims should brought in immediately, according to the advertisement, and thougbl this is desirable, the Master has power to receive them at any timej UNDER AN ADMINISTRATION ORDER OR DECREE. 889 [ifore he signs and gives out the Report. The bias of the Court, der the practice, in the Mavster's office in England, on applications I behalf of claimants to be let in to prove, was in favor of the credi- r' and so long as any part of the assests remained unadministered, ^treasonable excuse for delaying to make an earlier claim was ablished, the Court assisted the creditor.^ If a creditor does not come in till after the Executor has paid Iway the residue, he is not without remedy, thoujrh he is barred le benefit of that decree. If he chooses to sue the legatees, and back the fund, i.e may do so ; but he cannot affect the lega- , except by suit, and he cannot affect the executor at all^ But I such a case the Executors must be called on, to account, before he legatees can be called upon to pay ; and proceedings against the iter were stayed until the Executors should be made parties.* If some of a class of claimants come in before the Master and brove their claims, and others do not, the Court will not on motion pider a part of the fund apparently belonging to the latter to be Bt apart for them. (Good v. Blewitt, Coop. 198.) In the case last sited a bill was filed on behalf of the captain, and all other the un- atisfied mariners and persons entitled to shares in the prize-money rising from the capture of an East Indiaman. The decree directed I inquiry who were the parties entitled to share the net produce ising from the capture. The Master, in his report, amongst other lings, stated in a schedule a list of persons who had not come in, lit who appeared to be claimants, and a motion was made to pay I sum appearing to belong to them into court. The Court said it ould not be granted, as these persons might not choose to come in nd become parties to this suit, and that they might aftei'wards file i bill for themselves. (Oood v. Blewitt, Cooip. 198} In a suit instituted in 1814, to administer the personal estate of 'intestate who died in 1807, the Master reported that no debts been proved ; and by the decree on further directions in 1817, ne whole of the residue was apportioned and distributed ; but as he plaintiff was then an in&nt, his share, amounting to four-ninths ' ^'vS^Jl'^A " ^^- *>2 ; AngeU v. Haddm, 1 VmA. «02 ; QiUetpie t. Alexander, 8 Buas. , fl.J5?4^«'^« %<7oI«i«, 16 Beay. 140. 7«« V. Alexander, 8 Ruas. 186. t £cMttton T. Dniyton, 8 Dwau. SO "^ ! 1 t i ^ 890 PROCEEDINGS IN THE MASTER'S OFFICE. of the fund was retained and carried to his separate account. In 1825, a foreign prince, claiming to be a creditor of the intestate petitioned for leave to prove his debt against the sum remaining in Court, and the plaintiff coming of age soon after, applied to have that sum paid out : held, that the creditor was not precluded by I the previous proceedings, or the lapse of time, from tendering such proof before the Master; but that every defeuc ^»ould be allowed there, which would have been competent upon .^ew bill ; that the debt, if established, must be restricted, as against the fund in Court, to that proportion which the plaintiffs share bore to the whole amount distributed; and, therefore, that after reserving a sum, equal I to four-ninths of the claim, the residue of the fund ought to be paid out to the plaintiff. (Oreig v. Somerville,^ 1 R. & M. 338.) A person residing out of the jurisdiction, and who claimed tobel a creditor, but who had omitted to bring in his claim before the! Master had made his report, petitioned to have his claim referred I to the Master ; the Court made the Order upon his giving security for costs.^ If after a decree for the adminisf tion of the assets, any creditor files a bill, or brings an action fc 3 payment of hisj debt, he may be restrained by injunction from piuceeding with such I suit or action. The application may be made, either by the plaintiffl or by the Executor ; or in the case of a bond creditor, by the heir at-law.' A creditor having proved his claim in the Master's office, afterwards proceeded to sell under a.Ji. fa., upon the application of a| co-defendant, the sale was restrained with costs.* . • In a suit by one or more creditors on behalf of all, as each credi- tor has a right to question the claim of the other, because it may I interfere with his own, and as all are not before the Court at the hearing, the plaintiff in such a suit is called upon to prove his debt over again before the Master, although he may have established it in Court.^ /. Unless the claims can be sufficiently supported by documentary j evidence, they are supported by an affidavit proving the debt, ai swearing that the whole debt remains due, and, if the nature of the 1 Eng. Chan. Bepa. iv. 453. 2 Drever \. MaudesUy, 5 Buss. 11. 8 Martin v. Martin, 1 Ves. 211. 4 Cahuae v. Durie, 9 Orant, 486. 6 OiMiw T. Diokenxm, C. & P. 66 ; Field v. TUmut, 1 Sim. N. S. S18. UNDER AN ADMINISTRATION ORDER OR DECREE. 891 elAim admits it, by showing that it is fair and reasonable, and that the party h*^ ^^ security, or if he has any security, that he has no other security except such security. The items of the account are wnexed to and verified by the affidavit. If a mortgagee is willing to come in under the decree, and proof I of his claim is required, his claim is supported by the production of the mortgage deed, the execution of which is duly verified by affi- davit. If the mortgage haw been assigned or transferred, he produces the transfer of mortgage, and an aflidavit verifying the execution of the same; the afiidavit sta' what, if anything, has been received for principal money, whr.l on account of interest, and what remains I due. If the mortgagee has been in possession, he sets forth, in a schedule I to his affidavit, his receipts and payments; and the latter are duly vouched by the production of receipts in the same manner, as the credit side of a debtor and creditor acount. The interest^ on the amount of the mortgage money is computed after the rate of interest mentioned in the security, up to the date of the report, and is added to the principal.^ If, after the report, there is a direction to com- pute subsequent interest, the same is computed on the principal sum found due by the report,^ but not on the interest nor on the Claims by mortgagees will be fully considered when the subject lof forclosure is reached. The rules governing the proof of such debts in an administration suit are the same as in suits for foreclosure or sale under a mortgage. If an executor or administrator wishes to retain a sum in pay- Iment of his own debt, he should set up the claim by his answer, and also on the credit side of his account; but it is not necessary for him to make a separate claim on the subject. An executor may retain his own debt, although it is barred by the statute.^ Funeral Ittd testamentary expenses, and the costs of administration previous J ?" '^•""i'*''' ▼• I>Tew, 20 Beav. 49, where the mortg^age deed contained no provision for interest. : iijn how many years of interest on a mortKaee debt are recoverable, see Sinclair v. Jackson, 17 B«»T. 406. -o . . J Bmtmv. AuiHn, 2 Keen, 211. I m Mmn t. Bom, 2 M. & C. 448, as to the principles upon which a specialty creditor, whose debt n 0.1.. *^*ired by a mortgage or lien, should prove his debt under a decree in a creditor's suit » SoWieftraiitt V. Lett, 1 8m. i G. 416. IH I ■ ■' i! ^. ■ :J'r t% m 1 !'•''■ '^ : s: ! ■ 1 J ii; k ; ' -ll.: ^ 892 PROCEEDINGS IN THE MASTER'S OPFIOE. to the suit, are included in the credit side of his account ; but I costs of the suit cannot be included therein. These are disposed ( by the Court when the cause comes on for further consideration. This last remark must be taken in a qualified sense, for althoui; the question of costs is usually reserved by the decree in administn tion suits, until after the accounts are taken, and the Master made his report, an executor is permitted to advance moneys foi the costs of the suit where they are necessarily advanced to prot the interests of the estate.^ Section II. — Of the Rv;ht of the Executor or Administrator to rtki\ a Debt due to hitn, from the Testator or Intestate, As an executor or administrator, among creditors of equal de| gree, may pay one in preference to anoth'^r, so it is another of privileges that he has a right to retain fo. / 's own debt due to hii from the deceased, in preference to all othex creditors of equal d^ This remedy arises from the mere operation of the law, on thJ ground that it were absurd and incongruous that he should sue biml self, or that the same hand should at once pay and receive tlij same debt : and, therefore, he may appropriate a sufficient pa of the assets in satisfaction of his own demand ; otherwise hj would be exposed to the greatest hardship ; for since the ciediti who first commences a suit is entitled to a preference in paymentj and the executor can commence no suit, he must in a case of insolvent estate necessarily lose his debt, unless he has the right ( retaining. Thus, from the legal principle of the priority of sucij creditor as first commences an action, the doctrine of retainer is natural deduction.* But the privilege is accompanied with thij limitation, that he should not retain his own debt as against tho of a higher degree ; for the law places him merely in the sam^ 1 Re Babeoek'a EitaU, 8 Grant, 400. . v..«ii 2 Wooduhird v. Lord Dwoy, Plowd. 184. Dyer 8, a in marg. «a%ova executor ; mw ''•"Jlj Wainjiord, Hob. 187 • Bond r. Green, 1 BrownL 76 ; 8. C. Oodb. 817, pi. SIO, « to m ^^"™" tntor. 8 > BlMk. Com. 611 ; 8 Black. Oom. 18 ; ToUer. S96 ; Oodolph. Pt S. e. 11, i. 8. ' '«"»■■'" UNDER AN ADMINISA TION ORDER OR DECREE. 893 ation as if he had sued himself as executor, and recovered his i which there could be no room to suppose during the exist- oce of those of a superior order.^ This privilege of the personal representative to retain for his own lebt exists, notwithstanding a decree for an account has been made, 1 a suit by the other creditors for the administration of the assets : od notwithstanding the assets out of which he seeks to retain his bt came to his hands after the decree ; for the decree does not lifbct the legal priorities of creditors : and there is no distinction liQ this respect between assets possessed prior to the decree and quent to it.* 'U I %.!<•' The right of retainer is not lost by the circumstance of the [executor or administrator having paid into court, in a creditor's suit, the money which has been received on account of the assets of the deceased : And where the fund in court is insufficient to discharge the debt of the executor or administrator, his right of retainer will prevail ageinst the plaintiff's right to have the costs |of the suit satisfied.' - ,-..,,.■ -^..-r'v.y,',, n,' -■;• ,;; ;,i ,:';,:;,-,A -r.-, /;*i It should seem, however, that an executor cannot retain, out of I Buch of the assets as are merely equitable, to pay the whole of a debt due to him from the deceased, but only a proportionable part with the other creditors : For in equity all debts are equal j and I a Court of Equity will never assist a retainer.* An executor or administrator may retain not only for debts which I he claims beneficially, but also for those to which he is entitled as trustee. ThuB, in Plumer y. Mar chant, ^ A., before his marriage, covenanted with B. and C. to leave them by his will, or that his executors, within six months after his death, should pay them 700i. I in trust to pay the interest to his wife for life, and on her death to 1 3 Black. C«ni. 18 ; Com. Dig. Admon. (C 2) : 1 Saund. 333 (note 6, to Haneoeke v. Prowd), Godolph, kM tup. ; Toller, 205. However, according to the opinion of other writers, the principle on which the executor's right to retain is founded, is "In equali jure potior e»t conditio poitidentii:" Fonblanq. Treat. Eq. B. 4, Pt. 2 a 2, 8. 2, note (m). 2 Nmn V. Barlow, 1 Sim. k 8tu. 588. 3 Ckiitum T. OetM«, 5 Russ. 29 : Langton v. Higgs, 6 Sim. 228 ; Tipping v. Power, 1 Hare, 406, 411 ; urn V. M'bonald, 14 81m. 1. k Anon., 2 Oai. Ohanc. 64 ; Hopton v. Dryden, Preo. Chanc. 181 ; 8. C. 2 Eq. Gas. Abr. 460 ; Baily T. Pmghman, Hosely, 96 ; Chambers v. Harvett, ibid, 123 ; HaU v. Kendall, ibid, 828. It was Mated bv Vemey, M. R. , that " the rule of thla Court In cases of retainer is, unless the party can >Imw a Ugal rigm to retain, we never give it him ; if he can show a legal fii^t, we never take It twty from him : Chapman v. Turner, Vin. Abr. Exors. (D. 2) pi. 1 6 1 Bun. 1880 (cited 8 A. & E. 868, per ourjorn.) H \ ' WTTT '[i'f" ^ 894 PROCEEDINGS IN THE MASTER'S OFFICE, divide the principal among his children, and, in default of children as he should appoint, and bound himself, his heirs, executors, ai administrators in a penalty for performance : On his dying before! his wife, without issue and intestate, it was holden that B., in the! character of administrator, might retain assets to that amount I during the life of the widow, against a bond creditor who sued be- fore the six months were elapsed. Conversely, the executor or administrator may retain (at all I events in equity) for debts due to another in trust for him. Thus,! in Cockroft v. Black, ^ where the testator, before marriage, gave a I bond to a trustee for his wife, to leave her 1001. at his death if s survived him ; Lord King, C, held that she, as executrix of her I husband, might retain this lOOZ. so due to her trustee, out of the! assets. The same doctrine was acted upon by Lord Loughborough! in Franks v. Cooper,'^ where it was holden that an administratrii might retain in respect of a bond given by the intestate to another person, as her trustee, to secure an annuity to her ; ^ and by Sir I John Leach, V. C, in Loomes v. Stotherd ;* in which last case hisj Honor held, that, as an executor may retain his own debt or the] debt of his trustee, so a devisee of the realty may retain for his] own specialty debt, or the debt of his trustee.^ The executor's right of retainer, under an obligation made to I his trustee, has also been recognized in the Courts of Commonl Law. Thus, in Roskelley v. Oodolphin,^ a husband, on marriage,! gave a bond to trustees conditioned to pay QOOOl. to the wife, ifl she survived him : The husband died, leaving a daughter and thai wife living : The wife administered durante minor e estate of the I daughter : and it was holden by the Court of King's Bench that! she might retain for the money due on the bond. So in Af vrnotj v. Thompson,'^ ^ husband, prior to his marriage, gave a bond toj two trustees conditioned to leave to his wife 400i. at his death:! The marriage took place, and he afterwards died, having appointed! her his executrix : And the Court of Common Pleas held, that shej 1 2 p. Wms. 298. 2 4 Yes. 783. ,., 8 There beingr in this case a deficiency of assets, it was directed that aralue should l)eBetontM| annuity at the time of the death of the intestate, not including the arrears since. 4 1 Sim. & Stu. 461. 6 See further on the right of the heir to retain, Player v. Foxhall, 1 Rusi. Chan Ca. £S8. 6 Sir T. Uaj-mond, 483 ; a C. turn. Botkellett v. Oodolphin, Skiuner, 214 ; S. C. rum. RookmV'l Oodolphin, 2 Show, 408. 7 WiUoiulse. , , V U^A>ER AN ADMINISTRATION ORDER OR DECREE. 895 r retain for hisl linight retain for the sum due on the hond, and plead such retainer L an action brought against her by another bond creditor of the band. So in Loane v. Casey,^ a widow, who was sued as lexecutrix of her husband, was allowed, by the same Court, to re- Ibji out of his personal assets sufficient to answer the breach of a I covenant entered into by her husband, previous to the marriage, I with a trustee for securing a provision for herself : And De Grey, C. J., said that Lord Hardwicke had determined to the same effect in the case of a child's portion; and that wherever an executor I bad a right to a sum of money, whether it were strictly a debt due Ito himBclf or nominally to another, he might retain it : The Chief I Justice also mentioned a case before Eyre, C. J., where a widow jeiecutrix was allowed to retain the money with which she had paid |» mortgage on her jointure, the husband having covenanted it to be free from incumbrances ; this being a satisfaction for his breach jofcovenant. '■ ^i*'.'^'-^ .jr''*i>v-:- '>.:^ ;.■!,{-■»:,.- -:.a f^'- .j- -iH.-^. It must, however, be observed, that in the two earlier of the de- cisions at law above stated, the Court took a distinction with re- Fpect to the executor's right to retain, between cases where the payment, under the contract with the trustee, is to be made to the party seeking to retain, and those in which the payment is to be made to the trustee, in trust for the executor or administrator. Thus, in Roskelley v. Oodolphln,^ Eaymond, J., said, that if the payment had been to be made to the trustees, though in trust for the wife, there could have been no retainer. So in Marriot v. Thomp- ton, the Court, in giving judgment, laid down, that if the money in the condition had been to be paid to the trustees, and not to the executrix herself, she could not in that case have retained. ; ?.,; It must be further remarked, that where the corpus of the trust I money is to be paid to the trustees, in trust, not to pay the capital Bum to the executor or administrator, but to provide him an annu- ity by means of the interest or other proceeds, it has been holden jthat the right of retainer for the principal sum does not exist at ff : Thus, where a covenant was made with trustees in a deed of settlement before marriage, that the executors or administrators |of the mtended husband should pay to the trustees the sum of lJW.BlMk.966. iaiiLIUgrm. 494. k v-f- 896 PBOCIEDINOS IN THE MASTER'S OFFICE. 4002., to remain vested in them, in trust to satisfy out of the pn ceeds an annuity of 202. to the wife for her life : it was holdenth such a covenant would not enable her to retain the 400^. a ministratriz of her husband.^ |. • ^ •^ 'Again, although a Court of Law will, to the extent above me tioned, take a notice of equitable claims, yet an executor or i istrator cannot, in an action brought against him at law, retain i^ a demand, of which no account can be taken by a jury, and ^hn consequently, the amount of the debt, on which the executor or t ministrator relies, cannot be controverted by the other pa Thus, in De Taatet v. Shaw,^ A. being indebted in his individn capacity to a house in trade, of which he himself was a partnei in a sum of money, the amount of which could not be exactly i oertained, covenanted to pay the firm all his then debts, and Bad other debts as should subsequently accrue : A. died, without ha^ ing satisfied the original debt, and 'having contracted fui-ther debtl subsequently to the execution of the deed : The Court of King'j Bench held, that his executors, two of whom were partners in tli house of trade, could not plead either of these debts as an on standing specialty debt, or by way of retainer : It was argued,! the behalf of the defendants, that, although no action could haij been maintained upon the deed, in a Court of Law, against ih testator while living, or against his executors after his decease, t6| that the deed shewed a debt in equity, of which, according Loane v. Casey, a Court of Law ought to take notice : But Lori EUenborough, in delivering the judgment of the Court, observed,! " It is obvious that justice cannot be administered without ing the plaintiff an opportunity of controverting the amount of tb debt ; and the only mode in which a fact can be controverted in i action at law, viz., by taking an issue to be tried by a jury, isi practicable in the present case ; because the debt constitutes item in a partnership account, and the partnership account mo be taken in order to ascertain how much was due at the executi(^ of the deed, and whether the sum then due has been reduced any and what degree, by the intermediate gains of the partnersh business : Such an account cannot be taken by a jury, and, coij 1 Thompton t. Thomp$on, 9 Price, 464. See aUo a case cited by Richards, 0. B., Pi;foe, 473, 2 1 B. 4 A. 664. 8 1 B. & A. 668. » raiBF '*''!. f^ • 'I UNDER AN ADMINISTRATION bRDER OR DECREE. 897 ,C. B.,9PiJoe,478. atly, no issue could be taken on the debt, on which the de- IfendantB rely ; and in this respect the present case differs from hose cases of debts in trust which were quoted at the bar : There no more difficulty in ascertaining the amount of a sum of Imoney due under a bond or covenant to A. for the use of B. than it were due to A. for his own benefit. There was no difficulty, Duch less impracticability, of trial in those cases as there is in Where the person entitled to administration is an infant, and an fiiainistration durante minoritate is granted, not only may the ad- listrator retain for his own debt,^ but also if the infant in point fright has a title to retain for a debt due to himself, the adminis- ator may insist on that right.^ So where the creditor is a luna- [jC, and administration has been granted to the defendant for the geof the lunatic, the right of retainor shall not be prejudiced.* If administration be granted to a creditor, as such, and after- he repealed at the suit of the next of kin, such creditor shall etain against the rightful administrator.* On the petition, how- leyer, of the other creditors, the Ecclesiastical Court, on granting jadininistration to a particular creditor, as such, will compel him td lenter into articles to pay debts of equal degree in equal proportions jwithout any preference of his own;^ and administration to a ■creditor is generally so granted.^ But under the common decree lagainst an adminidtrator, who has obtained the letters of adminis- ition as a creditor, directing the accounts to be taken in the way, and tne assets to be applied in a, due course of adminis- Itration in payment of the intestate's debts, the Master has no jauthority to disallow the administrator's claim to retain, on proof affidavits that there has been a waiver of the right on his part, by arrangement with the other creditors : In order to justify stlch i departure from the ordinary course of administering assets in a ourt of Equity, there ought to be a specific instruction to the paster to that effect.^ 1 ApiMiey v. Ooddphin, T. Baym. 488 ; Com. Dig. Admin. (F.) * ' \frankty. Cooper, i Vet. 7M. ,,,, ,-„.y. Davit, iaal\i.S8. S Toiler, 106. 5 FonbL Treat, on Eq. Bk. Iv. Pt. 2, c. 2, s. 2, note (m). t^ ;; I Spmr V. Jamet, 2 Myl. & K. 887 ; TVurmpsm v. Cooper, 1 CoU. 81. 33 I 898 PHOCEEDINGS IN THE MASTER'S OFFICE. An executor of an executor is entitled to retain, out of the ass debts due from the testator, either w his own right or as the exe tor of the deceased executor.^ So where a bond creditor took administration de bonis non to his debtor, and died before he made any election in what particular e£fects he would have property, altered by retainer; it was held that the executor of th creditor, in accounting for the assets of the debtor, might dedu the debt.^ ^ But it was lately held,' that the administrator cum testamn annexo of a deceased executor, in accounting for the executor's i ceipts of the assets, was not entitled, by way of discharge, to amount of a debt owing from the testator to the executor jointljl with another person as partner, the executor having predeceas such partner, without having, in point of fact, done any actinth^ exercise of his right of retainer. It was not, however, at questioned in this case, but indeed conceded by the Court (Wig V. C.) that one of two partners to whom a debt is due, being i an executor, might retain that debt. But it was ruled that if sueli an executor dies, so that the interest in the debt wholly devolvei on his surviving partner, the right of retainer ceases, and canno^ be exercised as the representative of the executor. ;: In case a married woman be executrix, the husband mayfrtaii if the testator was indebted to him, or, which is the same tli to the wife before marriage.* So it seems clear that if the hu band be executor, he may retain for a debt contracted by the tee- tator with the wife dum sola.^ . . ,, .,■....,....■.- It is clear, as there has already been occasion to show, that i executor de son tort cannot retain for his own debt, even of a sup rior degree to that upon which he is sued. There is, indeed, on exceptien to this rule : for a party who, by stat. 43 Eliz. c. 8, comes executor de son tort, in consequence of a gift to him of th^ 1 Hopton V. Dryden, Prec. Ch. 180 ; Thon^taon v. Chant, 1 Russ. Chan. Ca. 640, »»"»*»••■ *''° the executor of one of several executors, one or more of whom Is still living : Prec. Oh. 131 2 Weeks v. Oore, 3 P. Wms. 184, note to Croft v. Pi*«, in which lattercase a point arose, but wun decided, viz., whether if a debtor dies, having made his creditor executor, and then ♦"•••JJ"; dies, having intermeddled with the goods, but before probate, and before any election nMiJ executor can retain. 8 Surge v. Brutton, 2 Uare, 878. 4 Toller, 869. 6 Prinet v. Rowion, 1 Mod. 208 ; 2 Mod. 61. " tl} UNDER AN ADMINISTRATION ORDER OR DECREE. 899 intestate's effects by an administrator' who has obtained the grant fraadulently, is, by the express provision of that act, allowed to retun< •wMfmxB imoi: iis't»Vh: i'Jl ;'it>j:i' If the same person be the personal representative both of the I creditor and of the debtor, he may retain out of the effects of which he is possessed as the representative of the debtor to satisfy the dehts due to him as the representative of the creditor.* i.-i-Kiijitj ir. If there are two joint and several obligors, and one of them dies, I having made the obligee his executor, in such case the obligee, if he has not received satisfaction out of the assets of the deceased obligor, may sue the survivor ; for, being jointly and severally bonnd, he may sue which of them he pleases, and though the debt be one, yet the obligations are several ; and no assets appear of theTalue of the debt to retain; and there might be a judg- |ment against which he could not retain.' ' '" ' •"•"•'•;' So if the obligor appoint the obligee his executor, and there are no assets out of which he may retain, the obligee may sue the heir if he is bound.* Ii7/ .-'.ifi "SjiIMi'.JlI .i.i(..:-t;rt ■;<•; ,f.V 1. •.,Ji'>;'f i-iTiii; If two SiTB jointly bound in an obligation, the one as principal, and the other as surety, and on the principal's death the surety becomes his personal representative, and on forfeiture of the bond dificliarges the debt ; it has been held, that he carmot retain : for, by joming in the bond with the principal it became his own debt.* Yet in such case it should seem that he might retain for the money paid, as constituting a simple contract debt.* Indeed, in Bathurst V. De la Zouch,'' where the executor had become bound with his testator in a bond for another person. Lord Bathurst, C, held that the executor was entitled to retain out of the testator's estate the whole of what was due on the bond. . .yitoci'tiif^na' t 3 Keb. 116 ; Cock v. Crost, 2 Lev. 73, 8. C. wmbU, 1 Freem. 40, 60 ; 8 Baa Abr. 10,tttExor8.{A.)9. * Wmkfvrd t. Wanltford, 1 8alk. 304. \ Awn., Oodb. 140, pi. 104 ; 4 Leon, 286, pi. 362. «Tolkr,2|)8. 7 2Dick. 460. 8 iooM T. Caiey, 2 W. Black. 968, by Blackstone, J. M^ M»i n. '» .A 1: 900 •U'i"; PBOCEEDtNaS IN THE MASTER'S OFFICE. ' Where there are co-executors or do-adniinistrfttors, eacli mm a creditor of the deceased, the one cannot retain for his own debtwl the prejudice of the other ; for several joint executors or admi^| trators are considered but as one person in law; the possession ( one is the possession of the other ; the receipt oJT one is the receintl of the other ; and, therefore, the retainer of one must be efed as the retainer of the other, and must ensure for theirl mutual benefit, in the discharge of the debts of both in propotJ tioil.* *■* ■ ■ •- '• :"hU' \y.V;/'-, r!-U: hU:-^ ,-,ui+ ,v. In Kent v. Pickering,^ whfere, in ia. cfeditoir's suit, a balance Ul been found, by the Master's report, to be jointly due from tTol executors to their testator's estate, and one of the executors was al creditor, it was held by Lord Languale, M. U., that such executoil had a right to retain his debt out of the assets consisting of the) balance due from himself and his co-executor. , It should seem that an executor or administrator may retain for| a debt due to himself, though it may be more than six years old;. for as an executor may pay a debt to another though he ini| have pleaded the Statute of Limitations, why may he not pay hinh| sIbM?» In Hopkinson v* Ledch* Bir Johti Lfedbh, V. C, ^daA opinion that the executor might retain in such a case : But hili| fionbr directed the opinion of a Court of Law be titken. The right to retain has been lately confirmed in Stahlschmidt i. L<(ti' ' It is held to be optiondil in an executor or administrator, eitiieil to plead a retainer of a debt due to him> Or give it in evidence onj a plea of pZene adminiatravit.^ r*^ > • . u r '•j';n'?^ -.jVi) ' K. &i *'' An executor has a right to retain a debt barred by the' Statute | of Limitations. .,, , ,,„, .,„...., ^,i,. ,,,.*^.^, Where the personal estate of a testator is exhausted, has the I executor in Upper Canada a right to retain such a debt out of the | proceeds of real estate ? ^ 1 Chapman v. Tumen H Via Abr. 72, tit. Exora. (D.) 2 ; S. 0. Hod. 268. 2 2 Keen, 1. ... S But see SheiMn v. Vand$nhor$t, 1 Ruas. di It. 849 ; 8 Roas. & M. 76. 4 7 May, 1819, M.S. ; Mad. Prac. 683, 2nd ed. 6lSm. &0. 416. ^ .« Bond V. Gre$n, 1 Brownl. 76 ; Plutner v, Marekanti 8 Burr. 1880, 1886 5 Lwtnt v. C«W. ' "■ Black. 065. 7 CrookM V. OrooJU, i Onnt, 616. v^ 1 pj UNDER AN ADMINISTRATION ORDER OR DECREE. 901 If ! ioBti* T. Cow "• by the 'Statute B^e i wom^Q po0seBs^4 of real estate sold the same, her husband mag in ^J^^ ccfnveyance thereof, and receiving to his own use the lucbase money : in consideration of which he agreed to settle on ,e wife certain other property which he held under lease with the {ngbt of purchase, and the lease was accordingly assigned to ft Lstee for t)ie use of the wife, the husband at the time promising |o pay the amount agreed to be paid for the purpose of obtaining QonveyajLce of the fee : — the husband having died, and his es- tate being in the course of administration in the Court of Chancery, mdbis wi4PW having brought a claim into the Master's office for the imount necessary to procure the conveyance of the fee : Held, on tppeal from the Master's report, that the Master had properly re- i)6iT64 pB^ol evidence to establish such claim of the widow.^ Per Bpragge, V. C. : "In Clifford v. Turrell,^ before Sir J. S. Knight Bruce, it was proved by parol that the payment of an annuity, and the providing a house, formed part of the consideration for the assignment of a lease of a farm, and the purchase of farm stock and fnmitare ; the assignment itself stating a consideration, but not stating the annuity and house {(.s apy part of the consideration ; and the Vice Chancellor decreed specific performance as to the anQoity (^nd house. I think that case governs this." Where an executor of a creditor is also administrator or executor of such creditor's debtor, the right of retainer arises where there are any assets, and he will be assumed to have exercised such right with- out any actual act of appropriation being established, and though his claim would otherwise be barred by the Statute of Limitations. The right of retainer out of legal assets applies to equitable as well as to Ugal debts, especially in a case where there is no competition of creditors. Where a member of a partiiership whose accounts Master was directed to take, was, by order, made a party in the Minster's office, but on subsequent enquiry it appeared that all liability on ]iis part was barred by the Statute of Limitations, the jlCaster, on the application of the party added, discharged his for- mt or^er, holding that he was not a necessary or proper party, and that all part>nership accoiints reqviired to be taken could be taken in his absence.' \ ?VI- '"••». • dnnt, 688. Jir.4C.Ch.188. * ttw t. JCHm,'| Cham. B. 161. n- .1 ',:',i1 k:..,! ,:| :'•' ' 1 f ^^ J^ISfe-K 902 PROCEEDINGS IN THE MASTER'S OFFICE. "'^'Executors finding it impossible to wind up the estate of thetej-l tator so long as certain partnership accounts remained unsettled^ became personally liable to the surviving partner for the paymenl of a sum supposed to be equal to his share in the estate, and he, thereupon, released to them all his interest in the partnership ej. tate, which was by them wound up and the proceeds applied in liquidation of the testator's debts. On a reference to the this arrangement was found beneficial to the testator's estate, i the same was so declared by the Court, and the executors wenl held to be entitled to a first charge on the proceeds of the estate for the moneys paid by them to the surviving partner, and m what they still owed him on their personal obligation.^ An execm[ tor has a right to retain a debt barred by the Statute of Limits. I tions.2 Qvicere : Where the personal estate of a testator igl exhausted, has the executor a right to retain such a debt out o{| the proceeds of the real estate ?' •"":"< .vmi^ ^ti s; >,mjM/ui.i ■ ■'■,; ii•^■■■<>i tti;.iii (' ■ '■:•.■!; i.u'i •.!• iuiM .i!;v(a s- ]<)w-iy.ii li'i'-.' ^HQW' :.4:^ji;-!v] iMf-■ The claim of a judgment creditor* is supported by the prodn6 tion of an examined and verified copy of the judgment ; bnt i orally it is sufficient to support the claim by an affidavit, that in ( as of term, in the year , I recovered a judgment 1 confession in her Majesty's Court of , against ,tli^ •testator, for the penalty of a bond bearing date, &c., and execute &c., by the testator to me, in the penal sum of £ conditionei for payment to me of the sum of £ /with interest at.... per cent. ; and the affidavit concludes, that the whole of the i principal sum of £ and interest is now due and owing to nij from the estate and effects of the said testator, and for paymeiJ whereof, I, the said , have no other security than the Buij judgment. The affidavit is varied according to the nature of th original debt. It is not necessary that a judgment or a deer should be revived for the purpose of the debt being proved.* 1 Harrison v. Patterson, H Orant, 106. 2 Crooks V. Crooks, 4 Orant, 616. ilbid. 4 Derbyshire db S. R. Co. v. Bainbrwge, 16 Beav. 146 ; Bennett t. Powell, 3 Drew. S26; Oxford, 3 S. & 0. 11 ; Reeoe v. Taylor, 6 De G. & S. 480. 5 Mildred v. Robimon, 19 Ves. 687. CLAIM OF JUDGMENT CREDITOR. 903 A. In a Buit to administer the estate of a testator, judgments ob- aed against his executors are payable according to their respec- ve dates out of legal assets.^ A more detailed consideration of debts due on judgments will be when the subject of Foreclosure is reached. A claim brought in for a bond debt^ is supported by affidavit, ^hich, after setting forth the name and description of the creditor, [id the nature of his original debt, whether special or otherwise, ad that the testator was in his lifetime, and at the time of his |eath, justly and truly indebted unto me in the sum of £ pr money lent and advanced, or for goods sold and delivered, or as he case may be, proceeds as follows : — for securing the repayment Irhereof, with interest, the said testator made and executed a bond obligation in writing, bearing date the day of in lie penal sum of £ conditioned for the payment to me, , my executors, administrators, and assigns, of the sum & , with interest, on the day of And con- llude'j, that the whole of the said principal sum of £ , and Dterest, is now due and owing to me from the estate and eifects of he said testator, and for payment whereof I have no other secu- [ity than the said bond. ...-.•,. It was not the practice in the Master's offices in England to re- re proof of the consideration for which the bond was given, as I the case of simple contract debts, unless a case of suspicion ist the bond was raised.' If strict proof is required, the exe- ntion of the bond is proved.* Under a decree in a suit by a bond reditor on behalf of himself and the other creditors on the estate, he executor may, in the Master's office, impeach the validity of he bond upon grounds which were not in issue in the cause at the ing. ,/♦ Interest on a bond debt is computed after the rate of interest OTenanted to be paid. If, instead of a given per centage being li £?^ '• Johnion, 2 Sma. & O. 301. |i When* bond debt Is barred by 8 & 4 W. IV. o. 42, see Roddam v. Morley, 2 K. & J. 88«. IJ *«*« V. Lord Riverg, 1 PhilL 90 : WhUaker v. Wright, 2 Hare, 810. VtlHa^^-l^ord Rivers, 1 PhllL 90. I» Whtaktr V. Wright, 2 Hare 810. .i^- 904 PROCEEDINGS IN THE MASTER S OFFICE. mentioned in the bond, it is conditioned to pay legal interest, thati is considered to mean 6 per cent. If the bond mentions 6 m\ cent., but a subsequent agreement or understanding has been en-f tered into to reduce or increase the rate of interest, and the samel is proved, and the fact corroborated by the payraeuta agreeiMl with the reduced rate of interest, the interest will be compu^edl after such reduced or increased rate. In calculating interest on al bond debt, the computation may be continued until the principal! and interest reach to the amoimt of the penalty,^ but, generally] interest cannot go beyond the penalty.^ If a claim is brought in for a bill of exchange, the affidavit, afterl stating that the testator was, at the time of his death, truly inl debted to me, proceeds that the estate of the said testator is stilll justly and truly indebted to me, upon and by virtue of a certainl bill of exchange, bearing date, &c., drawn by me upon the testatorJ and accepted by the testator in the sum of £ , payable to] me or my order, months after the date thereof. The affida-l vit concludes, that the creditor has not received anything, or statesi what he has received, and that he has not any other secuiity. Ill insisted upon, the testator's handwriting to the bill of exchangel must be proved. A claim brought in for the amount due on al promissory note is supported by an affidavit to the same effect asal claim for a bill of exchange, excepting as to verbal alteration. In-r terest is calculated on each of these securities from the time v;ku\ the bill or note became payable,^ unless any other time is men-| " If a claim is brought in by a banker, the affidavit states thall some time previous to , the testator opened an account with! , of the city of , bankers. That oii *he day of] .., the testator's pass-book was up and sent to hiin,orj settled, or as the case may be ; thr. sum of £ was thenj due upon the balance of account i principal and interest, i fihat the same now remains due. If sul equent dealings haTej taken place since the settlement of the account, the affidavit statesi the particulars in a schedule, and verifies the same by sweai .'g,| irp y. Earl of Scarborough, 3 Ves. 567. ,„. , .„ H iight V. Maclean, 8 Bro. C. C. 490 ; Clarke v. Lord Abingdon, 17 Ves. 106 ; Jtw\.Winitm,^ Bro. C. O. 489. As to Interest being allowed beyond the penalty, see rrinoiples of Equity, i».H 1 4fow 1 Sharp V. Earl of Scarborough, 3 Ves. 567 iKn"^'- " * " — — 8 8 Lithgow V. Lyon, Cooper, 29, CLAIM OF JUDGMENT CREPITOR. 905 at I, the deponent, have in a schedule to my affidavit set forth a ue and particular account of all and singular the sum and sums Lf money paid by or on account of the said testator to the bankers, od received by them respectively as his bankers or otherwise from he said testator, or on his account, from the day of , ndtliat the sum of £ is now due and owing to me and my lid partners from the estate of the said testator, upon the balance [if account for principal and interest to the ; and then follows be usual denial of not having received anything or any security. rbe schedule of the account is annexed to the affidavit, and verified. affidavit is made by one of the bankers. The banker's pass- ok is sometimes proved by affidavit, as showing a true statement the account. If interest is charged, the custom should be [iroTed, or that the debtor in a previous settled account recognized he claim for interest. ......•, If a claim is brought in by a simple contract creditor^ for goods old and deUvered, or for work and labour done, or for work, la- Qur, care, dihgence and attendance, the affidavit states that the estator was justly and truly indebted to me for the same, and that estate still remains indebted, and that I have not received any- bing, nor have I any security. The affidavit also proves the de- livery of the goods, &c., and also contains a bill, or detailed count, of what is due, which is verified by the affidavit ; and the kreditor swears that the prices therein charged are fair and reason- ible, and such as are usual and customary in the same trade or piness, and concludes that the whole remains due, and that the peditor has no security for the- s'-.me. - : - fv > If the creditor is dead, the claim is brought in by his executor or dministrator, and in addition to the usual matter, the affidavit atesthe death of the creditor; that he made a will, dated , nd appointed his executor; and that the same has been fnly proved in the Surrogate Court of : or if the creditor Hade no will, that he died intestate, and that administration has een granted, &c. In support of this, the probate of the will, or Brs of administration, are produced. The executor swears thftt pe has not received anything, and that he believes that the testO'tor Ufontgn judgment only constitutes a simple contract debt; Wilsonv. Duruaney, 18 Bear. 898 Where abreacli of trust constitutes a simple contract debt, and where not, see prio'dplet ot Equity, 623. ^ • ;• f ■ , ' „ ■- -,,!^'^ It^ 906 PROCEEDINGS IN THj? MASTER'S OFFICE. or intestate did not receive anything in his lifetime. If the execJ tor is unable to prove the debt and the reasonableness ofthj ch^i^rges, some other competent person must do it. If a claim is brought in by the assignee of a bankrupt or insol] vent, the bankrupt or the insolvftnt makes an affidavit that the deb is due, and that he has not received anything, nor to the his belief have his assignees or any other person. The asbigne should join in this affidavit, and state that they have not receiye anything. ■ ''■- ' ^ " ■ '■' ■ ' ^ *■ • ,'j vil If a claim is brought in by a person to whom a security or deb has been assigned, the assignment is proved and produced. a creditor is abroad, the debt may be proved by any competenl| person. ' In Paynter v. Houston,^ under the usual decree for account a creditor's suit, the Master refused to receive the claim of th^ surviving partners o* the testator for a debt due frc m him to then on his separate account. On a motion, the Lord Chancelloi thought the Master ought to receive the claim. It will bo convenient here to examine the rules of priority which the various jlaims against an estate should be fixed by tb report and paid by the Court out of the assets of the estate, is, of course, a matter of very little consequence where it turns ( that the estate is sufficient to pay all the charges against it wit) costs, commissi' .', and interest; but as this can seldom be cer| tainly known until it is completely administered, it is necessa that the order in which the debts proven before the Master are be paid should be ascertained and fixed by his report. The law on this subject is simplifies' by the Act to amend the 1 of Property and Trusts in Upper Canada,^ in the cases of estates of persons djdng after the date of its passage. It decla that " On the administration of the estate of any person dyii after the passing of this Act, in case of a deficiency of aeseti debts due to the Growc^ and to the exocutor or administrator 1 8 Men 297. S 20 Vic a 28, 8. 28, uiented to 18 Sept. 1866. CLAIM OP JUDOMEN*r CREDITOR. fiH 907 ideceasod person, and debts to others, including therein respec- Tely debts by judgment, decree or order, and other debts of «ord, debts by specialty, simple contract debts, and such claims •damages as by statute are payable in like order of administra- las simple contract debts — shall be paid pari passu, and with- 1 any preference or priority of debts of one rank or nature over bose of another ; but nothing herein contained shall prejudice any existing during the lifetime of the debtor on any of his real or ersonal estate." But as many cases may arise where adminis- ation is sought of the estate of a person dying before 18th Sep- ember, 1865, it will be necessary to consider the rules as to riority without regard to this Statute. This will involve a con- ieration of the difference between legal and equitable assets. -m utij /if ::f; Legal assets are such descriptions of property belonging to the bstator or intestate as may be reached by an execution at law, nd such as a creditor, sueing the executor in an action at law for k debt due from the testator, might bring forward in evidence as [ issae joined[ on the executor's plea of plene administravit. A most important distinction exists with respect to the adminis- ation of the two kind of assets, legal and equitable. If they are legal, they must be administered by the executor or administrator [the deceased in a due course of administration, having regard to he rales of priority among creditors. But if the assets in the hands [an executor are equitable, then, although the precedence in pay- Bent of debts to legacies must be respected, yet, as among credi- s, the assets must b^ applied in satisfaction of all the claimants, mpassu, without any regard to the priority in rank of one debt I another. The principle of this distinction is, that in natural nstice and conscience, and in the contemplation of a Court of pqiiity,all debts are equal, and the debtor is equally bound to atisfy them all, whether by specialty or simple contract : There- since a claimant upon equitable assets is under the necessity going to a Court of Equity in order to reach them, that Court ret only according to the rule of doing justice to all creditors, iJbout any distinction as to priority.^ [ 1 fltwbt T. Penion, i Atk. 891. , .i. .e ,t! .!; a ■( '" ^ 903 PROCEJ^INO^ IN THE MASITER S O^f ICE. It must be observed that the true test^ as to lyheth^ the ag^ are legal or equitable, is not whether the ex^ci^tor or adi tor, but whether the claimant can reach the^n without resortiurJ a Court of Equity. It i-- therefore, difficult to ui^derstand \ra th^ equity of redemption of a term for years should have held to be equitable, and not legal assets i^ the hands of an m tor or administrator ; for although the mo^^tgage is forfeited at 1 and the whole estate thereby vested in the mortgagee, and i right of redemption is merely equitable property at the time oft death of the testator or intestate, yet it is a right which comes { the executor or administrator as part of ^he personal estate, i for which it can hardly be doubted he wofild at this day be ch able on an issue of plene administravit. Jflowever, Sir Joseph Jek delivered his opinion, after great deliberation, in the case of ! Creditoxs of Sir Charles Cox,^ th^rt it vf^s oiily equitable asset! And Lord Hardwicke held accordingly in the case Qf Haxtwii\ (Jhitters.^ This difficulty as to equities of redemption was removed in country by 12 Vic. c. 73,^ which provided, that "the Sherifj other officer to whom any writ of Jieri facias ag£\,in8t the tenements of any mortgagor of real estate is directed, may seiiej take in execution, sell and convey (in l^ke manner as any otl real estate might be seized or taken ii^ execution, sold and i veyed) all the legal and equitable inter^s1l) of such mortgage]: in t mortgaged lands and tenements " : — ^]fi equity of redenipti«| therefore, is now clearly a legal asset.* , . ,v *, . It appears, notwithstanding, to be the better opinion at this ( that equities of redemption are not necessarily equitable asset: And in the view of an eminent writer,* the more accurate ment of the doctrine is, that legal assets are such ascopieintot hands and power of an executor or administrator, ov such as liel entrusted with by law, virtute officii, to dispose of in the course | ;j 1 ) 8 P- Wipa. 848. It is said in tti« note bv Mr. Oqx, 8 ?. Wnoq. Si*. th»t it wpe^n from m l» ■ that tne point was not in fact detennined ; but it see'ms unquestionable that the MutHvJ Bolls delivered a soleprn opinion that the equity of radentbtion yna e4uit»)>le aneti. 2 Ambl. 808. 8 See Con. Sta* U. C. o. 22, a. 267. i This Act howDver, applies only where the execution is against the mortgagor himislf, obJo"*] ecutlon issued against his lands : B. U. C. t. Brovgh, 8 B. Jc A. Bep. 06 ; and im Btr pott. 6 Bee 2 Jarman on Wills, 646 ; Story on Equity, o. 0, s. 661, note (l). Story 0.' Equitj , o. 8, s. 661. m ciliif ofr jtra&MteNT creditor. fM m lifltHitioii ; bir, in xithet words, >^hatever an execntor or ad- liistrator itkeH, qua ex^butbr or admihistrator, or in respect to loffitse, ifi to be ctinsid&r6d as l6gal assets. Bo, in the recent b! (^ook V. Q'hBgion} Kinderfiley, V. C, (applying the test ethettheelfCntor or iidministratoi: would take simply virtute ■it) hfeld tlittt ttti ieqttity of redemption in a sum of money ged bti A real estate was l^gal assets : And his Honor said liie thdU^ht thiB cases abote cited as to mortgages for terms for 1 could not be supported. Accordifagly, it Wilson v. Fielding,'^ it was adjudged by Lord lieclesfield that personal assets as a lease for years, a bond, or \ grant of an annuity, in a trustee's name, should be applied as [assets in a due course of administration, although a creditor Dotoomeat. them without the aid of a Court of Equity: 1 the same law has been laid down by Sir Joseph Jekyll in The teof Sir Gharlei Cox'b Creditors.^ ,n-. ^ ^ : . . , /..<., I With respect to that portion of the property in the hands of an cutor or administrator which consists of the proceeds of the \ of real estate, it is now fully settled that such proceeds are %\tal)k and not legal assets. In some of the older cases, in- 1, it has been holden that where land is devised to executors : the payment of debts and legacies, or is devised to be sold by [eeutors, or devised to executors to be sold for that purpose, the arising from the sale are legal assets : * But later cases kve completely established that in all cases they constitute merely loitable assets.^ In Clay v. Willis,^ A. mortgaged lands in fee |B. and Co., with a power of sale upon trust, to repay themselves I moneys advanced, &c., and to pay over the surplus to A., his cntors; land administrators^ Before any sale was made, A. died, devised all his real and personal property to G. and D. [jigieT.ljBM; 20Jur. 610., |> vtrn. "m. It 8houI4 seem, by the report of this case in 10 Mod. 427, that Lord Macclesfield, at tbii parlod, altogether denied the doctrine of administering equitable assets pari passu. Thli . .iH^*" cited betore Lord Hardwicke in Hartwell v. Chitters, uibi supra, MP.Wmi. 842. ISiriitifT. Lee, IVem '.'i. Cutterhaek v. Smith, Prec. Chanc. 127. J!tc**at»v. /'•reetnan, Prec. '<19S. Anon., 2 Vi: 188. Oreawv v. Powell, 2 Vem. 34S. Anon., 2 Vem. 406. Burwellv. K-Hwdr. 406. •in T. OkeUy, 2 Atk. 50. SUk v. Prime, 1 Bro. C. C. 188, in notit. Barton v. Boucher, 1 Bro. nM.notif. Newton v. Bennet, 1 Bro. C. C. 134. Batson v. Lindegreen, 2 Bro. C. C. 04. rV. MU, 7. V«i. sift. Shkkard ▼. LutvMge, 8 Ves. 26. Clay v. WiUU, 1. B. ft C. 8«4. Barker ly. t B. ft C. 489. 8. 0. 4 Wian. ft R. 836. The case of Lm^egrote v. Cooper, 2 Snt. ft 0. 271, «Mtia mi with Umm authorit es. But qucsre whether it is cdmctly Mported. I IB- *C. 864. ' «~ I ^ m PBOCEEDINQS IN THE MAST]^ a OFFICE. (whom he also made executors) upon trueit, to sell and pay del &c. During the lifetime of G. and D., B. and Go. sold the ei and paid the surplus into the hands of E., who was agent for and D. Whilst the money remained in E.'a hands, G. and D. dii E. also died soon after, leaving the defendant his executor. II plaintiff having taken out administration de bonis non, with the of A. annexed, brought an action for money had and recivi against the defendant : And it was held by the Gourt ox Bench that it could not be maintained ; for that the money in defendant's hands was equitable, and not legal assets, and, thei fore, would not have been recoverable by G. and D. in their repri sentative character. In Barker v. May,^ the testator devised his executors, their heirs and assigns, his lands upon trust to the same; and directed that the money arising from the fihould be deemed part of his personal estate, and that it shi be subject to the disposition made concerning his personal He then directed his personal estate to be sold ; and when tl money arising from the sale of his personal and real estate si be collected, he disposed of it in the manner mentioned in the and among other dispositions he bequeathed a legacy to A. Bi The Gourt of King's Bench held that the money arising from tl sale of the real estate was equitable assets : And a prohibition granted to the Consistorial Court of Norwich, in which the had sued for his legacy, and the executor, having accounted for the personal estate, admitted that he had in his hands a sum money arising from the sale of the real estate : And Lord Ti terden observed, that it was quite clear that the testator could alter the legal character of the property, by directing that should be considered as part of his personal estate.' ' -;r. '■ ^^ Where the assets are partly legal and partly equitable, thou equity cannot take away the legal preference on legal assets, if one creditor has been partly paid out of such legal assets, whj satisfaction comes to be made out of equitable assets, the Coal will postpone him until there is an equality in satisfactior to /* «*-'- 1 d Ei. & 0. 480. S. 0. 4 Mann. & R. 886. , ^ 2 Where a testator devised a freehold house to A., whom he appointed one of hit ^''^'P'^tTI with a sum of money payable within twelve months, this was held equitable asseU in the ua]" j executors : Lovse v. Peikett, 16 B. C. 600. s'?l CLAIM OF JX7DGMENT CREDITOR. 911 le other creditors out of the equitable assets, proportionable to igomuch as the legal creditor has been satisfied out of the legal .I'A ' -j^i ' >•> i I' 7 r-*-S't «r Where a man has a general power of appointment over a fund, nd he actually exercises his power, whether by deed or will, the operty appointed shall form part of his assets, so as to be sub- Eeet to the demands of his creditors at his death, in preference to I claims of his legatees or appointees.^ But in order to raise lis equity, the power must be actually executed;^ for equity Dever aids the non-execution of a power.* And although creditors I these cases prevail over volunteers, yet if a party taking under voluntary appointment sell to a person bona fide, and for a valu- able consideration, such persons, in analogy to the decisions on he statute of voluntary conveyances, will be preferred to the leditors, as having a preferable equity to them.^ , . . .-,,i.,{ ,«, There may be instances, however, where an equity of redemp- }m is an equitable and not a legal asset. "Where several lots of nd are mortgaged, the equity of redemption in one or some of hem only cannot be sold under common law process — and semhle, &t where lands in different counties are mortgaged, the equity of demption cannot be sold under execution at law, and can only ! reached in equity.* < .;^: • „■; -' "' '• . . .-•Tit rmu' The widow of an intestate having obtained letters of administra- pOD, received and got in his personal estate, went into occupation fthe real estate, received the rents and profits thereof, and spent a onsiderable sum in improving it. She also maintained the infant leiis of the intestate, to whom no guardian had been appointed. JM, that the present estate and the proceed or profits of the real ate come to her hands must first be applied in payment of debts, hen to reimburse her for the sums spent in the infant's maintenance. ■^^f fif""^ ▼• Bank of England, Cas. temp. Talb. 220 by Lord Talbot. Chapman v. Esgar, 1 Sm. & 675. • I Thmpton V Tovme, 2 Vern. 819. Hinton v. Toye, 1 Atk. 466. Bainton v. Ward. 2 A^k. 178. "wwd V. Windham, 2 Ves. sen. 9. Pack v. Bathurat, 3 Atk. 269. Troughton v. Trnughton, 3 Atk. fMiirgt V. Milbanke, 9 Ves. 190. Jenny v. Andrews, 6 Madd. 264. Piatt v. Jiouth, « Mees. & W. riming v. Buchanan, 3 De G. Sm. & G. 976. »«8tot. Ont. 36 Vict. c. 20, k Imp. stat. 1 Vict. c. 26, s. 27 Preface. 2 Jarman on Wills, 646. Hdlnut V. CoghUl, 7 Ves. 499. 12 Ves. 206. Omij* v. Milbanke, 9 Ves. 190. HaH v. Middlehurst, 3 Atk. 877. 2 Sugd. Pow. 29, 6th edit. . I anari v. Wol/enden, 14 Grant, 188. 4 .sJitSrIaf;! A » k T rwr U 5^ 'i 912 PROCEEDINGS IN TftE MASTER'S OFJPICE. No allowahce was made to the administratrix for her improvement, to the realty, but she was not to be charged with an increase ij in rental caused by such improvements.^ A mortgagee after the death of a mortgagor, has a right to provJ upon the general estate, for the whole amount of his claim, and i hold his security for any amount that the general estate may be sufficient to pay, and the fact that a simple contract creditor ha obtained judgment against the personal representatives, upon whiclj he has placed an execution against lands in the sheriff's hands not affect such right.* Under the statute authorizing the sale uii| der execution of the mortgagee's equity of redemption. Con. Stat., 1 Xj., chapter 22, the sheriff cannot sell or convey any interest, if then a second mortgage outstanding in the hands of different partie Where a first mortgagee acquired, as he contended, a title throug a purchaser at sheriff's sale of the equity of redemption of the morl gaged premises, there being mesne incumbrances it was held that hJ did not acquire the fee in the lands, the sheriff not having power I sea* ♦ The Master baving taken care that in settling the priorities the various claims proven before him he has had due reg to the question whether they shall be paid out of legal or equitl able assets, and bearing in mind that if iein asset be equitabll all claims, as to it, are to be paid pari passu, but if legal, that thj claims, as to it, are to be paid in a certain order of preference, (exj cepting in the case of a peraon dying after 18th September, 1865,1 this ord6r of priority will now be examined. It will be observed that the language of the authorities to 1 how cited, ia adapted to the case of an executor or administrati paying, but the rules which govern their payments also govern thj Master in settling the order of priority in his report. Before any debt or duty whatsoever, funeral expenses with thj proper limitation as to the amount, are, as it has already apf to be allowed out of the estate of the deceased. These expenses t to be preferred, even to a debt due to the Crown.* 1 Be Bratill, Barry t. Braeill, 11 Orant, 2fi3. S Sletaart v. Stewart, 10 Grant, 169. 8 Be KeetMn, S Cham. R 286. 4 Ji. T. Wade, 6 Price, 027, by Richards. 0. B. CLAIM OF JUDGMENT CREDITOR. 913 The next thing to justify and occasion expense is the proving (f the will or taking out administration ;^ but a greater disburse- ment, says the author of " The office of an Executor,"'' will not stand allowable, than is precribed by the statute of 21 Henry |rai.c.5.» - • The costs of a suit in Equity are to be considered as expenses in lidministering the estate, and are the first charge upon an estate, whether administered in or out of Coui-t.* But in a case where a fill provides for the payment of " testamentary expenses" out of a specific bequest, this provision does not include the costs of a suit occasioned by the will ; for the words " testamentary expenses" are confined to the usual charges of the probate, &c. ; and such costs must, therefore, be paid out of the residuary estate.^ Ui ,ji; a- The third occasion of disbursement by the executor or adminis- Itratoristhe payment of debts; and in such payment he must be careftd to observe the rules of priority ; for if he pay those of a lower degree first, he must, on a deficiency of assets, answer those of a higher out of his own estate.* So an executor or administrator is Ihornnd to plead a debt of a higher nature in bar of an action brought against him for a debt of inferior degree, and reins ultra, if he has not assets for both ; otherwise it will be an admission of assets to satisfy both debts.'^ li , •li ;. : ',-V It is obvious that it is beyond the power of a testator to disap- I point the rules of law as to the precedence of debts, by directing his executors to make an equal distribution of the assets among all his creditors.^ ' ' " ' '"..'•• 1.) V ill;:,.; v; 1 2 Bluk. Comm. 611. J P. MO, Uth edit I S With respect to the proper fees for probates and letters of administration, see Bum's Eccles. Law, l«t Fees and tit. Wills, vol. 4. p. 264. 291, 8th edit. " St. Gennaine, (the author of the Doctor and 1 Student, dial. 2, o. 10,) who was no stranger to the canon and civil law, as appears by his book, saith, I tint the Ordinary ouj^ht to take nothing for probate, if the goods suffice not for funeral and debts ; but Iw meang only that conscience is M;ainst it. " Wentw. Off. Kx. 260, 14th edit. I 4i«>m« v. Stotherd, 1 Sim. & Stu. 461, by Sir J. Leach. Tipping v. Power, 1 Hare, 406, 411. It iI!j*' '^'^y^'"'> 2 Hare, 413. And this priority will be allowed even over coats of litigation iu the iMclesiastical Court incurred in determining which is the testator's Will, and ordered by the latter Court "?e^W out of the estate : Major v Major, 2 Drewr. 281. ,,' °r»'w» V. Groombridge, 4 Madd. 495. See WtUon v. Ueaton, 11 Beav. 492. See also Brougham lirS "' ^'^^"' 18 n«»»- 119 : There, in a similar Will the phafle " the expences of proving the Will, I ttd the execution of the trusts thereof," was held to be confined to the oxpenses incurred by the I twutor in his character as such. « J Mack. Comm. fill. 7 Roek y. Lewhton, 1 Salk. 310. 1 Saund. 333. a note (8). 8 lvner\. Cox, 8 Moo. P. C. 288. 34 1,1- 914 PROOEEDINOS IN THE MASTER'S OFFICE. A question of no little difficulty is laised in Story's Conflict ofl Laws, section 524, viz., suppose a debtor dies domiciled in England and leaves assets in a foreign country by the law of which alldebk stand in an equal rank, and administration is duly taken out in the. place of his domicil and also in the place of the fdtus <»f the aasetsl What rule is to govern in the administration of the assets ? The! law of the domicil ? or the law of the situs ? That eminent writerl states his own opinion to be (in accordance with the decisioos ofl the American Coui-ts, though at variance, aa he admits, with that ofl many foreign jurists) that in regard to creditors the administrationl of assets of deceased persons is to be governed altogether by the of the country where the executor or administrator acts, and from which he derives his authority to collect them. 1. If--. J But in the late case of Wi son v. Lady Dunsany} the Master ofl the Rolls (Sir J. Romilly) declined to adopt this opinion, and heldj that the personal assets of a testator must be administered od the! principle of the law of his domicil. In that case the testator had! died domiciled in Ireland, leaving personal assets partly there and! partly in England ; and, a question having arisen as to the priorityl of the claims of his creditors. His Honor laid it down that he mustl treat the case in the same way as if he were sitting in the Court m Chancery in Dublin. In CooA; v. (?re^som,'' where the testator had! also died domiciled in Ireland, leaving assets both in Ireland andl England and the same executors in both countries, it was held byl Kindersley, V. C, that an Irish judgment had priority over Englishl simple contract creditors, as against Irish assets remitted to Englandl by the executors and being there administered : His Honor saidi that if the executors in the two counti ies had been different persoDsJ the duty of each would have been first to pay the debts owmg inl the country in which he was executor, and then he might send any! surplus to the other country, and that the duty of the Irish execu-| tor was to pay the Irish debts first, according to their order of prio-| rity ; and that, therefore, the Irish assets remitted here ought to bel administered here as if they had remained and were being ad-f ministered in Ireland. It will be observed that in this case thel Irish judgment creditor only sought to touch the Irish assets : Andl therefore it was unnecessary to apply the law as laid down by thel 1 18 Beav. 293. 2 2 Drawr. 288. ■5*0 "f ft CLAIM OF JUDGMENT CREDITOR. 915 iHMter of the Rolls in Wilson v. Lady Dwnsany : But the obaer- /itions of the V. C. appear to put the question as though it were »ther dependant on the situs of the assets than on the domicil (the deceased. ■' -» i ' -.:,,,. vr.* ,- It should be observed, that by the constant rule of the Court of Ichancery, a solicitor, in consideration of his trouble, and the money lia disburse for his client, has a right to be paid out of the duty de- lereed or fund recovered for the plaintiff, and a lien upon it, before jtlie specialty creditors of the deceased plaintiff; neither can his lexecutor or administrator controvert this rule, by insisting upon Lpplying the assets in a course of administration.^ To all other debts of whatever nature, as well of a prior as of a isubsequent date, such as are due to the Crown by record or specialty, Iclaim the precedence.^ So that if there be not come to the ex- jecutor or administrator goods of greater value than will suffice for I satisfaction of those, he is not to pay any debt to a subject : and lif he be sued for any such, he may plead in bar of this suit that his [testator or intestate died thus much indebted to the king, showing r, &c., and that he hath not goods surmounting the value of that Idebt' Or if the subject's pursuit be not so by way of actiott, as Ithat the executor or administrator hath day in Court to plead, but Ibe by way of suing execution, as upon statute staple or merchant Ithen is the administrator put to his audita querela, wherein he Imust set forth this matter.* " '' But the debts due to the Crown, which are so privileged, are con- I fined to such as are due by matter of record, or by specialty, fcc.*^ Ifwhichare of the same nature ; for by statute 33 Hen, VIII. c. 89, it lis enacted, that all obligations and specialties, taken to the use of the Iking, shall be of the same nature as a statute staple.) And, there- Ifore, sums of money owing to the king on wood sales or sales of tin, lor other his minerals, for which no specialty is given, shall not be pre- jferred to a debt due to a subject by matter of record.® So though 1 Tv.nmn v. Oxbam, 2 Atk. 720 Lloyd v. Maton, 4 Hare, 132. : Muna Charta, c. 18. 2 Inst. 32. Littleton v. Hibbing, Cro. Eliz. 703 Swiiib. Pt. §, s. 16. Wentw. . JM. Ex 261 14th edit. Com. Diif. Admon. (C. 2.) i V™'*- 0«- Ex- 262, Uth edit. Godolph. Pt. 2, c. 28, s. 3. t tnd, Perhap«, at the present day, he might be relieved on motion. 6 Wentw. Off. Ex. 282, 14th edit. Godolph. Pt. 2, c. Hi', s. 3. Com. Dig. Admou. (0. 8.) » iW. 3 Bao. Abr. 79, 80, tit. Bxors. (L.) 2. ^ 916 PROCEEDINGS IN THE MASTERS OFFICE. fines and amercements in the King's Court of Record aie clearlvl debts of record/ and entitled to such preference, yet amercempntsi in the King's Courts Baron, or Courts of liis Honors, which are not! of record, have no such priority -^ nor have fines for copyhold estate nor money arising from the sale of estrays within his manors on liberties ; for these are not debts of record.^ Again, whatever ac- crues to the king by attainder or outlawiy is considered as a debtl by simple contract, before office found ; and although debts due tol the person outlawed or attainted be by obligation or other specialty, and the outlawry or attainder be of record, yet the law does not re- cognize the king's title before office found : for till then it does not| appear by record that any such debt was due to the party.* , So if the king's debtor by simple contract be outlawed on mesnel process, the debt is not altered in its nature, nor shall it have pre-l cedence as if the outlawry were subsequent to the judgment, and the! debt, therefore, of record.^ Nor does the prerogative extend to al debt assigned to the king : Therefore it was held, where the ob of a bond, after the death of the obligor, assigned it to the king, that! the obligor's executors were warranted in satisfying a judgment, re-j covered against him in his lifetime, in preference to the bond." also the arrears of rent due to the Crown, whether it be a fee-fannl rent, or a rent reserved on a lease for years, shall, it appears, be re-| garded in the light of a debt by simple contract.^ Again, it has been held, that a recognizance in the Court of Chan- cery by a guardian in the matter of a minor, is not to be consideredj a debt due to the Crown.^ But it seems that if the king's debt, and likewise that of a sub-l ject, be both inferior to debts of record, the king shall be prefer- red.* But the law as to common debts is altered in this Province by 291 Vic. c. 28, s. 28, and by Con. Stat. U. C.,c. 5, to which the reader isj 1 Godolph. Pt. 2, c. 28, s 3. 2 Weiitw. Off. Ex. 263, 14th edit. Com. Dig. Admon. (C. 2.) 3 Bac. Abr. 80, tit. Exor». (L,)2. 3 Ibid. 4 Wentw. Off. Ex. 263, 14tii edit. Bac Abr. «6t mpra. 5 Com. Dig. Admon. (C. 2.) Erby v. Erby, 1 Sails. 80. Toiier, 261. , ^ .. , 6 Cora. Dig. Admon. (C. 2 ) Dimoclt's ca.se, Lane, 65, by Tanfleld, C. B., wliicli was granted by Uk| Court. 7. Com. Dig. Admon. (0. 2.) Wentw. OOi Ex. 264, 14th edition : but see %r\fra, p. 910. 8 Ex parte Uslier, 1 Ball & Beat. 199. 9 Bac. Abr. vbi supra, n. (u). 71 CLAIM OF JUDGMENT CREDITOR. 917 ), tit. Exors. (L.)2. I referred. Section 28 of 29 Vic. c. 28, sweeps away most of the dis- tinctions which were formerly made between different classes of tUims, and it is only in cases of persons who had died liefore its pdssaL'e, (18 SeptemV)er, 1865,) that the old rules will Ije applicable. Where certain creditors of a deceased insolvent sued his executor, recovered judgments, and sohi his real estate, and got paid in full, \kld, that they were still bound to account, and that the other credi- tors of the insolvent were entitled to have the whole estate distri- but«il p'o rata, under 29 Victoria, chap. 28.^ The Master having received proof of the claims as to which proof was required, enters the particular of them in his book as herein- before described ; and where a distinction is to be made as to their forming a charge on legal or equitable assets, he notes this also, with a brief statement of the assets to be thus charged. It is of importance that these entries be full and clear, for it frequently lens that at a future day, explanations are required as to the mode in which his various conclusions are arrived at, and unless care has been taken in these entries he will find it impossible to explain either to the Court, or the parties, how his conclusions have been reached, and it will be very unsatisfactory to be obliged to refer generally to his findings in the report. Referring now to the enquiries usually directed in an adminis- I tration decree or order, the practice on each will be described. The first enquiry usually is that an account be taken of the pei-sonal estate not specifically bequeathed of A. B., deceased, the testator (or intestate) in the pleadings mentioned, come to the hands of the said A, B., or to the hands of any other person or persons on his |behalf;&c. ..:^ j,^,, . ,, ^.„ ,.,,,,, i,,:,...,,-,;,..h ■ ., :, ,4-: When the accounts of the executor or administrator are brought I in, as directed at the time the decree is considered, the Master should take care that the account is framed in accordance with his I directions, and that the various items are numbered. The survivor of two partners, after having continued to carry on business with the personal representatives of the deceased partner, 1 B. B. A'. Avierica v. Mallury, 17 Grant 102, and see Henry v. SiMrp, 18 Grant 16, to the Mine toect. m 918 PROCBEDINOB IN THE MASTER'S OFFICE. i n ^ filed a bill for an account of both partnership dealinpfs, rikj a dec was made for that purpose, and in proceeding on that decree thJ Master directed the executor to bring in an account of the |)artnerJ ship dealings between the deceased and suiviving paitiier. HtlA upon appeal from this direction, that the executor was bound make up the accounts from the books of the partnership jn hij possession.' This case is important as showing how far executdi are bound to furnish accounts in the Master's office, as to niatten with which they have themselves had no connexion. The num came before the Court on a motion to take off" the files the Master J certificate that the defendant had made default in bringing in accounts directed by him to be brought in. The second direction is to take an account of the testator's un intestate's) debts. This means an account of the debts uni)aid — not of those which the executor may have paid, for these will appear in his account m payments made on the account of the estate. It is in many, indeed in most cases impossible for the executor to answer this enquir by his accounts filed. He can, however, insert in his statementl such of the claims as have been sent to him under the advertisement] and if he is aware of any others, he should mention them in sucb terms as the facts of the case warrant. The description oftha claims should be as full as if they were proven by affidavit. Th«j Master will be able to answer this enquiry by observing the nilft just referred to, and he will also be able to fix the order of priorityl after a consideration of the principles already discussed. The third enquiry is an account of the testator's funeral expense! The object of this special enquiry is to make the sum the Masteij may find to have been properly expended for this j^urpose a firsS charge on the estate. The proper allowances to be made by the Master under thii enquiry are ^ovemed by the duties of the executor; and iirsl he must bury the deceased in a manner suitable to the estate h«j leaves behind him.^ Funeral expenses, says Lord Coke,^ accordii 1 Strathy\\. Crooks, 6 Orant 162. 2 2 Black. Comm. 608. 8 8 Inat 202. ''^^ CLAIM OF JTTDGMRNT CREDITOR 919 I the degree and (jualitj- of tho deceased, are to he allowed of the pxkIh of tlnMleceased, before any debt or duty whatsoever. But Ihe executor or administrator is not justified ifi incuiring such as ^( extravagant, even as it respects legatees or next of kin entitled distribution : ^ Nor, as against creditors, shall he be warranted |in more than are absolutely necessary. In strictness, said Lord iHolt, no funeral expenses are allowed in the case of an insolvent . Ltate, except for tho coffin, ringing the bell, and the fees of the Iparson, clerk, and bearers ; but not for the pall or ornaments ; ^ and lin the year 1095, it was stated, that Baron Powol, on his circuit, vronld allow but ll.s. (id. under a plea of plene adTninistravit ; Uhich he said was all the necessary charge.^ However, it appears Ithat Lord Holt, where, under thai; plea, 150/. was charged for the Itwtator's funeral, said that at least IMU. ought to be deducted ; for ()/. is enough to be allowed for the funeral of one in debt.^ (1) Lord Hardwicke, in Stag v. Punter/* upon exceptions to a [Master's report for not allowing 00/. for the testator's funeral, said, rAt law, where a person dies insolvent, the rule is, .that no more [shall be allowed for a funeral than is necessary ; at first only 4iOs., * liKStackpooUv. StackpooUfi Dow. 227. ■ -■■ > 2 Shelly'8 case, 1 Salk. 296. Perhaps, observes Dr. Burn, The expenses of the shroud and diggings the gnie ought tu have been added : 4 Burn. E. L. 848, 8th edit. 3Anon.,Comberb. 842. 4 Ibid. 5 3 Atk. 119. (1) (1) In the case of the Appeal of M'Olituey, 14 Serg. & Rawie, 64, the Supreme Court allowed the sum 01 1368.76, for funeral expenses, including a vault and tombstone. It was observed by the Chief Justice ; " The deceased had a good estate and no children ; and the widow, who was entitled to one-half wli^hed to he liberal in honor of his memory, A handsome tombstone was erected over a vault, in which the body was interred, and this wax the principal article of expense. But there wa.i one article which should be rejected— I allude to a picture of the deceai^ed, painted after hta death. If tho widow desired a memorial of this l(ind, she should pay for It herself." See also, the Afpeal of Metz, 11 Serg. & Rawle, 204. Pattermn'n Estate, 1 Watts & Serg. 292. Bu»io'i Estate, 2 Ashm. 438. Jennison v. Hapgood, 10 Pick. 77. It U the duty of the executor or expected administrator, to bury the deceased in a manner pro- portioned to the estate he leaves behind him. Hapgood v. Hoxujhton, 10 Pick. 154. If the executor be not at hand or be unknown, any friend may do it, and the necessary expense is to Im paid first in the order of debts. Matthews on Ex. 68. For tMs expense, the executor urUh m«ti is liable to the person who furnishes the funeral, though iie neither ordered itoreven knew of it. Aa against leuratees or next of kin, such expenses may be incurred as will bury the deceased according to the station he occupied in life, but as against creditors the rule is much stricter, nothing being allowed beyond what is absolutelv necessary Matth. Ex. 69. Flintham'i ApptaX, 11 S. k R. 10. M'Glemey'g Appeal, 14 S. & R. 64. Toll. Ex. 245. But if there be the least risk that the estate will prove ultimately insolvent, then any unnecessary funeral expense will be at the risk of those who authorized it. Hancook v. Padmore, 1 B. & Add. 260. A demand for mourning for the widow and family of the deceased, would not be allowable in England aa part of the necessary funeral expenses. Johimton v. Baker, 2 Car. & P. 207. But iu Wood's Estate, 1 Aahm. 314, it was held by the Orphans' Court, at Philadelphia, that adralnistrntors are entitled to a moderate allowance for money expended in procuring mourning for the widow and children of the deceased, although the estate is Insolvent. And the estate of a testator was held not liable for the funeral expenses of his widow. Lawall v. Kreidler, 3 Rawle, 300. Black cloth and omamentR placed around the pulpit on the occasion of the burial, on the shroud and coffin, belong to the executororadmlnlstrfttorttr person at whose expense they were furnished. A creditor cannot legallyarrestor detain and prevent the burial of the dead body of his debtor until his debt is paid. A conspiracy to prevent a burial. Is indictable at common law. Matth. Ex. 71, 72. Hood onEx. 26,84. fc-t. m I. 920 PROCEEDINGS IN THE MASTER'S OFFICE. then 5^, and at last 101} I have often thought it a hard rule, even at law, a8 an executor is obliged to bury his testator before he can possibly know whether his asse+^^s are sufficient to pay his debts But this Court is not hound down by such strict rules, especially when a testator leaves great sums in legacies, which is a reasonable ground for an executor to believe the estate is solvent : As this is the case here, I am of opinion that sixty pounds is not too much for the funeral expenses, especially as the .testator had directed hii cor{)se should be buried at a church thirty miles from the place o his death." In Hancock v. Pochaore,^ issue was taken, in an action by al creditor against an executor, on a plea of plene admlnistravit, andl it was proved that assets to the amount of 129^. had come to thel hands of the defendant, and that he had paid 551. for probate dutvl and 791. for funeral expenses : The deceased had been a captain inl the army, and the question was, whether the defendant could, as| against a creditor, apply so large a sum as 791. to such a purpose ; The Court of King's Bench was of opinion that the sum was tool •great to be allowed: But Mr. Justice Bayley, in delivering thel judgment of the Court, observed that although the rule is, that, against a creditor, no more shall be allowed for a funeral than necessary, yet in considering what is necessary, regard must un-l doubtedly be had to the degree and condition in life of the party ;j and his Lordship observed that the sum of lOl., mentioned by Lord Hp-rdwicke as the established allowance in his time, might perhai)sj at the present day, be less than what should be reasonably alliweilj for a person of condition : The learned Judge proceeded to inti;iiatq that the Court thought 201. would be a proper sum for the funeraB of a person in the degree and consideration of life of this testator,^ " It miist not, however, be understood that the Court in Hanm^ V. Podmore, laid it d<,v^n as a rule, that even the sum of 201. should be the limit of the allowance, where the estate is insolvent ; bull that it wa.i the proper limit under the circumstances of that casej The rule appears to be, that the executor is entitled to be allowed 1 But in BuUer's N. P. 143, it is said that tho usual method is to allow five pounds ; and in Sel«iii< N. P. 770, », IS, 0th edit , a JIS. case of Smith v. Davieg, Mid4|esex Sittings after M. T. 10 Geo" 11., is mentioned, where this lattsr sum was allowed by Lord Hardwlcke himself. 2 1 Barn. & Adol. 260. 8 See Fardley v. Arnold, I Cexr. & M. 434. 438, per Parke, B. 71 CLAIM OF JUDGMENT CREDITOR. 921 reasonable expenses according to the testator's condition in life ; L(lif he exceeds those, he is to take the chance of the estate turn- ijig out insolvent : No precise sum can be fixed to govern executoi-s in all cases: It must obviously vary in every instance, not only with the station in life of each particular testator, but also with the price of the requisite articles at the particular place.^ !,!,i InBissetv. Antrohus^ Sir L. Shadwell, V. C, refused to allow 1 2,2101. for the funeral expenses of a deceased nobleman, whose oersonal estate was believed to be solvent at his death, but dltimately, from unforeseen circumstances, proved to be insolvent : And his Honor referred it to the Master to enquire and state what I sum ought to be allowed. . , . ; . , With respect to allowances for funeral expenses, where there are I assets sufficient, as against other persons than creditors : In Ofliey V. OjfJey,^ there had been 000^. laid out in Mr, Offley's funeral, and the Court decreed that sum to be a great debt to affect the trust estate, Mr. Offley being a man of great estate and reputation in his OTinty, and being buried there : but if he had been buried else- where, it seemed his funeral might have been more private, and the I Court would not have allowed so much.* In Fake v. the A , 'bishop of Canterbury,^ a payment of 93Z. 128. Ifid. for mourning rings distributed among the relations and friends of the deceased was allowed by Lord Eld on to the executors: The will had not given any directions or» the subject, but committed I'any thing not specified " to the dis-^etion of the executors.® In MuUick v. Mullick,^ on an appeal to the Privy Council from •■;,^^ . •- . ■ • ■ " , ■ 1 Edwards v. Edwards, 2 Cr. & M. 612. S. C. 4 Tyrwh 438. See al«o Reeves v. Ward, 2 Scott, 396. !4Sim.512. 3 Ptw. Chanc. 261. 4 Sw Staekpoole v, Stackpoole, 4 Dow. Bridge v. Brown. 2 Y. & CoU. C. C. 181. ■ f 5 14 Ves 364. 4 In Johmton V. Baker, 2 Carr. k Pajnie, 207, Best, C. J. held that a demand for mourninff , furnished to the widow and family of the testntor, Ih not a funeral expeuse, such as can be claimed against the estate by the executor, if he jrives the order for it ; and consequently, that a log»tee, who had notieceived his lettacy, was a competent witness on behalf of the executor in an action brought •Kslnst him for the recovery of such demand. See also Bridge v. Brown, 2 V. & Coll. 0. C. 181. 186. In Pitt V. Pitt, 2 Cas. temp. Lee, 508, Sir G. Lee allowed eeii paid, when she made her claim for it iu aij administration suit, and its allowance was opposed by the tesb mentary guardian of the infant legatees. The question did m affect creditors of the deceased, and it was contendeii tliat the estaft was liable for the note, or for the |)rice of the slab.^ It may here be observed that in pra(;tice the testanieiitar 1 Deakins v. Brickley, 2 Vorn 240. S. C. 1 Eq. Ca. Abr. 15t), pi. 1. 2 Swinb. Pt. 3, c. 16, pi. 8. a Mmsks V. Ridley, 2 anmt 544, CLAIM OF JUDGMENT CREDITOR. ' ' 923 tse a ireeraan ihe testaineutar Lipenses are included in the enqniiy as to funeral expenses : but Ihe Taster should, in his report, separate thein, and show precisely the amount allowed for each. The aext direction is to state the legacies left by the testator. A legacy is defined to be " Some particular thing or things given br left, either by a testator in his testament, wherein an executor is Lppointed, to be paid or perfoimed by his executor, or by an ntestate in a codicil or last Will, wherein no executor is appointed, I be paid or performed by an administrator." ^ , , . \ - In practice this term is used in its widest sense, and the Master jsliould abstract from the Will all gifts, bequests, and devises, shew- g by his repoi-t briefly every disposition of property, whether real lor personal, made by the testator. The next onquiry is an account of what parts, if any, of the {testator's personal estate are outstanding or undisposed of This Islinuld be shown by tho accounts filed by the executor, or adminis- llrator, and shorbl specify minutely every article or asset however lunimportant, left by the testator or intestate, which remains unsold, lunconsiimed, or in the hands, or under the control of the executor : Irach as household goods, stock-in-trade, farming implements, gi'ain, Icattle, notes, accounts, and debts of every description still due or lowing to the estate. In sj\ort, every asset of the estate, legal or lequitable, still in the power of the executor, should be specified in Ithi? answer to this enquiry, an 1 the Master in framing his report Ishould specify the asset with care, for it may become the duty of |tlie Court to order its sale or conversion. The decree then })roceeds to direct that the testator's pergonal lestate, not specific il] 3' be(jueathed, V)e applied in payment of his Idebts and funeral expenses in a due course of adminis'-ration, and Itli^'n in payment of his legacies. This direction has been anticipated jf r it has already been shewn in what order the assets are to be jailministered, and the Master, as has been intimated, will find it Ihis duty to specify with clearness the order of priority, as well as I the asset chargeable, whether legal f>r equitable. 1 C««ph, Pt. 8. c. 1 s. 1. 924 PROCEEDINGS IN THE MASTER'S OFFICE. ^ The next enquiry is what real estate the testator died seized or entitled to at the time of his death. . , .. , . The executor, or administrator, in answer to this enquiry shoulJ state fully all the real estate in which the testator, or intestat< was interested, and the Master should see that the description given should be so full and specific that if a sale be ordered, a com veyance can be given from the description. It frequently happen that the account is brought in with a general description such " A Town Lot, in the Town of ." This is not sui"icient, thl real estate should be as accurately described as it woiud be in i Deed of it, and the Master should at once compel an observance this rule, for eventually it will, in all j)robability, be requireu, and delay and expense will be incurred, which would be avoide if the account be properly framed in the first instance. It need hardly be stated that the object of this enquiry is to pla before the Coui*t a statement of the i-ealty owned by the testatoij that, in the event of the personalty proving insufficient to debts, resort may be had to the realty. In some cases too, legacies may be charged upon the real estate, and it may become necessar to sell the realty in order to meet these charges upon it. Connected with this enquiry is the next, what incumbrana afifect the testators real estate ? This is generally shewn by a short abstract from the Registrj and Sheriff's oflices ; and it is the duty of the executor, or adminisj trator, to obtain this information, and to show clearly whether anJ how the realty is incumbered ; if there be any dower on the esta« it should be stated in the account. Where a woman joins in a mortgage to bar her dower, for m purpose of securing a debt of her husband, and after his death M property is sold for more than is sufficient to satisfy the claim the mortgagee, the widow will be entitled to have her dowel secured out of the surplus in preference to the simple coiitn creditoi-s of her husband.^ ,, , , . . , . ,. , i Shippard V. Sheppard, 11 Uroiit 174. ^'■ ^5 PROCEEDINGS ON THE EXECUTOR's DISCHARGE. 925 The next enquiry is an account of the rents and profits of the oiator's real estate received by the testator. This information hottld also be furnished by the executor in a schedule, forming jrt of his accounts. Strictly speaking, an administrator has no uthority to deal with the real estate of the intestate, but it is very m done, and the Court in such cases imposes the same liabilities \u the administrator in respect of these dealings, as if he were ecially authorized by the Will. Where executors without any Luthority assumed to act in the management of the real estate of heir testator, they were made to account for their acts, as if they been duly empowered to act .'^.s trustees. In such a case it is heir duty to keep accounts, and bb ready at all times to explain heir dealings with the estate.* ivhat incumbrana Section II. — Proceedings on the Executor's Discharge. That part of the executor's accounts in which he sets forth the ayments made by him, on account of the estate, is called his f discharge." The mode of proceeding on this is similar to that klready pointed out in the chapter on the " Method of Taking keounts in the Master's Ofiice." The Master having received the evidence offered by the executor I his discharge, proceeds as already pointed out on the surcharge Jif any) in the mode described in a former part of this work. The urcharge may, however, contain charges which require further Examination : for example, the executor may be charged with 'wilful neglect or default " in not collecting certain debts specified the surcharge : or in not obtaining a higher rental than he had kredited to the estate : or in not securing a higher rate of interest pn moneys loaned by him : or in advancing moneys on improper |»r insufficient security: or he may be charged with not accounting for moneys or property received. The liability of an executor in pnch cases may be established in the Master's ofiice ; but the charges ihould be particularly set forth in the surcharge cases. It wiE be ecollected that Carpenter v. Wood ^ decides that the Master is ' m 1 Ch4holm V. Barmrd, 10 Grant 479. 9%Q PROCEEDINGS IN THE MASTER'S OFFICE, ^ at liberty, under the general orders, to take an account of " will neglect or default " without any special reference in the decree ani without any case being made for it in the pleadings. It decides that Sec. 2. G. Order 220 is not confined to cases of mortga and mortgagee. , Sec. 13 of Order 42 of the Orders of June 1853, is similar Order 220 of the Consolidated Orders of 1868. S. took out letters of administration to the estate of an insolveni! at the reqv t of a simple contract creditor, and was on the followl ingdayser>ed with a summons for his debt. The administrati took no steps to ascertain, and made no enquiry, wliether therj were any other debts, but allowed judgment to go against him bj default, and all the chattel property of the intestate to be soldundel the execution. Held, at the suit of a specialty creditor that ttj ■ administrator's conduct did not entitle him to set up the defence ( no notice of the specialty debt, and that the amount produced bj the sale must be applied in due course of administration.^ The testator, A. M., had been in partnership in business withonj J. A., and died without any settlement of accounts, appoiutiug N. and L. his executors. The testator had, besides his share of partnership assets, a large amount of personal property, and als real estate, which he specifically devised to his four sons, the^ infants, and appointed A. their guardian. The executors receiva the rents of the real estate, and applied them to the maintenano and education of the testator's children. The real and person estate having proved insuflicient for the payment of debts, tlij executors were held liable to account to the creditors of thetestat-oj for the rents received by them, and applied to the maintenance aDij education of the children.- The Master in dealing with the m citarge should take care in such a case to disallow all paymenti made for the maintenance of children where the estate is not 8U ficient to pay debts. , , . s A testator, a short time before his death, in 1841, and during last illness, signed a statement by which he acknowledged himscM 4' Hutchiiigon T. Edmison, 11 Oi«nt 477. 6 Harrison v. Patterson, 11 Oraiit; 106. .t PROCEEDINGS ON THE EXECUTORS DISCHARGE. 927 553, is similar ebtel>H'l*}''! t ',. -I.. !) ■ 928 PROCEEDINGS IN THE MASTER'S OFFICE, An administrator sometimes occupies the difficult position of ing moneys of an estate in his possession without knowing to w to pay them over. His duty in such a case is pointed out h\ Chancellor in McLennan v. Reward} The case of EraJdne v. Oampbell^ has already been cited to when the Court will order an account against an executor taken with rests. In that case the order to take the account rests was made by the Court on further directions, but it is a of the duty of the Master to decide whether or not such a should be adopted leaving it to the party feeling himself aggii to appeal. , j i- C( 5: -i? I. The Master should in taking the accounts of an executor 01 ministrator allow interest on moneys advanced by him for benefit of the estate if such a claim be made and established.* The rules which govern the Court in charging an executor interest as a punishment for negligence, and in inflicting " re upon him are explained in Tf iard v. Gable} Where a trustee had retained moneys of the estate in his ha instead of paying off debts of the estate, and had improperly mi those moneys with his own at the bank ; the Court, without sa; what in future, according to the value of money, or the amoui interest payable on investments, might be a fair rate to charge moneys improperly withheld or used by a trustee, charged trustee with 8 per cent, on all balances in his hands.^ It not unfrequently happens that a.n executor or adminisirat obliged to pay counsel fees in the suit, and as there is someti difficulty in obtaining taxation of this as costs in the cause, 1 usual and proper for the executor to bring the payment into hii counts in the Master's office as a necessary disbursement made him, and such an allowance will be approved of by the Cuurt.^ Vankoughnet C. " I think that the charge^ for the retaining fee] 19 0nuitl78. ' 2 1 Grant 670. 8 Memits V. Ridley, 2 Orant 544. 4 8 Grant 468. 6 Wifhtman ▼. Helliwell, 13 Grant 830. 6 Chtsholm T. Barnard, 10 Orant 479. 7 Tke chaigv waa 920. 'iy\ 1 T m PROCEEDINGS ON THE EXECUTOR'S DISCHARGE. 920 lase is pointed out by th xecutor or adminisiratori ad as there is sometinMj ,8 costs in the cause, it i g the payment into his y disbursement made )vedofbytheCourt.« Pj (■^ for the retaining feepi^' I the Solicitor, for the executors should be allowed ; it was not an nreasonable disbursement for them to make. There is a great deal f trouble in conducting administration suits at times, and many hings are done, and much time employed often for which no direct arge can well be made." ■ . , , . When moneys have been lost to an estate through the wilful neg- or default of the executors the Master should not charge them ith any interest on the sums thus lost.^ , ■] ..>. . ',•;,. A testator's directions to his executors to continue to carry on [lusiness with his surviving partner does not authorize the executors embark any new capital in the business.^ This point was decided by the Court on the pleadings, and before decree, but it niffht come up in the Master's office if an executor were endeavor- ng to burden the estate with moneys expended for this purpose. One of two executors was indebted to the estate on a mortgage [iven to their testator, of which fact his co-executor ivas aware, but lie took no steps to compel payment, and the mortgagor or executor pxecuted a discharge of the mortgage under the Statute, and re- [istered the same. Held, that the co-executor was liable to make any loss occasioned to the estate thereby ; but semble, that the charge to be valid, required the signature of both executors.* Executors suffered judgment to be recovered against them at law, \ot a debt of their testator, and the lands were sold upon process sued thereon, although one of the executors was indebted to the state in a larger amount. The Court ordered both executors to nake good the difference between what the lands were actually fforth, and the amount realized upon the sale under execution.* The Master having received all the evidence on the executors ['discharge," and on the opposite party's surcharge, proceeds to settle fhe report in the manner already described. If he has determined • take the account with rests, or to charge the executor merely ith simple interest on balances in his hands, it will be necessary 1 yaniUm v. Thompson, 10 Grant 542. i Smith V. Smith, 18 Grant, 81. 3 McPhadilen v. Bacon, 13 Grant 591. < ihid. 35 iWti ij. I <:;(.' -.>< 1 ^ 930 PROCEEDINGS IN THE MASTER'S OFFICE. to ascertain from month to month how the accounts stood. %m the estate is an old one, and the executor has been dealing withitfj a number of years, this involves much labor, and expense in his ( fice. It sometimes happens too that cases occur where tlie execut has allowed costs to be incurred on debts dqe by the testator, or 1 permitted lands to be sold for taxes, or has allowed the ten per ctnl added upon unpaid taxes to be charged against the lands of ih testator, alleging that when these liabilities were payable he had i funds in his hands belonging to the estate applicable for the purp of discharging them. In order to test the accuracy of this alle"! tion the Master must ascertain at short intervals the jnecise eond tion of the accounts This is done by abstracting from the dJ charge and surcharge, and from the account shewing the executod receipts, each item as credited by the executor or as allowed by tli Master, as will appear in his book, and entering them under eack month (or shorter period if necessary) in a separate book, thus ;- BEofaivED by Executor, as admitted in his account filed marked A, aud as allowed against him by Master under surcharge : January 1, 1860. No. 1— Schedule A $100 00 •' 2— *' 20 00 "3— *• 100 00 «' 4— " 200 00 " 1— Surcharge 60 00 Disbursed by Executor, as allowed b Master in his Book : January 1, 1860. No. 1 mi " 2 m{ $470 00 February 1, 1860. No. 5— Schedule A $500 00 •« 6 " 100 00 . ■ February 1, 1860. No. S « 4 " 7— «« 60 00 " 2— Surcharge 60 00 $700 00 .}600l .4001 $10001 ■?'-. Proceeding thus from the beginning of the executorship to time of taking the accounts in his office, the Master will be a at a glance to sea when the executor had a balance in his han^ belonging to the estate, and for how long a time he has thus haj FICE. COMPENSATION ALLOWED TO EXECUTORS. 031 ints stood. Wliei I dealing with it fj expense in his c wliere the oxeciib the testator, or 1 ed thetenperceni »t the lands of tlj payable he had I ible for the purp ■acy of this alle'd i the ])reci8e con(JJ ing from the diJ ving the executoi :• as allowed by th J them under eaci ite book, thus :- xocutor, as allowed b Book: iRY 1, 1860. .mi . 21X1 m ARY I, 1860. j|6l)0 400 ■f tiooo Lecutorship to ister will be abl ,nce in his han^ he has thus lii Le use of the funds. On this data he will be able to make the necessary computations, in case interest, either simple or com- ound, is charged ; and to determine whether or not the executor tbould be charged with any loss the estate may have sustained Siirough bis negligence in not paying taxes or debts when due. If, however, the Master has determined to allow the executor icompensation for his services, either by a yearly salary or by way ■of commission, it would be proper, in striking these monthly Ibalances, to place to his credit the proportion of compensation due llor one month — for instance, if the compensation amount to .i*120 Iper year, he should receive credit each month for iJlO. ISection III. — As to Cjmpensation allowed to Executors, Trustees, or Administrators. Before settling his report, the Master should dispose of the Iquestion of compensation, or, as it is usually termed, " com- Imission." In England, the rule is " that a trustee, executor, or administra- Itor shall have no allowance for his care and trouble." Many of jtlie American States, however, have altered this rule by statute, d we have imitated their example in the provisions of 22 Vic. Ic,16, 8. 16,^ which enacts that "the Judge of any Surrogate Coui-t may allow to the executor, or trustee, or administrator act- ing under will or letters of administration, a fair and reasonable allowance for his care, pains, and trouble and his time expended in or about the executorship, trusteeship, or administration of the estate and effects vested in him under any will or letters of ad- Diinistration, and in administering, disposing of, and arranging and settling the same, and generally in arranging and settling the affairs of the estate, and therefor may make an order or orders from time to time, and the same shall be allowed to an executor, [trustee or administrator in passing his accounts." It will be observed, that the statute, in terms, gives the power |to fix a remuneration only to the Surrogate Judge, but our Court I Revised Stat, of Upper Canada, page 109, which is a copy of 22 Vic. c. 93, s, 47. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ut 122 12.2 2.0 UA - iiiir^^ III '-^ ii4 < 6" ► V 7 Sciences CorpoKition 23 WBT MAIN STMiT WIBSTM.N.Y. MSM (716)172-4503 i . " 'I I ST 932 PR0CEEDIN08 TN THE MASTER'S OFFICE. of Chancery has concurrent jurisdiction, as will be seen by thcr^wtti marks of the Chancellor in McLennan v. Heward} This important question is fully discussed in the leading,' Engli case of Robinson v. PettJ The point decided in that case wi that " the Court never allows an executor or trustee for his tin and trouble, especially where there is an express lef^acv for bl pains : neither will it alter the case that the executor renounce and yet is assisting to the executorship : nor even, though it ai pears that the executor has deserved more, aud benefitted the trnl to the prejudice of his own affairs." The notes form so exhau] tive a treatise on the subject, that it has been thought advisable I reprodu*^ 'i ^he case in full, as reported in White aud Tudot, wit| their no. tji. The quepf ion was, whether an executor who had renounced, i had yet bet^n assisting in the trust, according to the request of til testator, should have any additional consideration, when he an express legacy for such his assistance. Robert Pett, a considerable draper and mercer at AspallstonJ ham, in Suffolk, made his will in October, 1710, whereby devised the surplus of his real and personal estate to his gra children, and appointed the defendant Pett, who had been first 1 servant, and afterwards his journeyman, together with one Lark executors, giving to each of his executors .£100 for their troalJ about the execution of their trust, and directing that if the defej dant Larkin should refuse the executorship, he should lo legacy ; but if the defendant Pett should refuse to take on him tl executorship, yet that he should have his ^£100 paid him, providj he would be aiding aud assisting in the management aud exe tion of the trust. Larkin only proved the will, and the defendant Pett reuou the executorship. On a bill brought by the plaintiffs, the grandchildren, ag the executors, for an account of the personal estate, the defend 1 McLennan t. Hetpard, 9 Onnt 879. 8 White and Tudor'* Leading CaMa 182. nporUd in t P. Wma. 149, A. D. 1784. 1 'T COMPENSATION ALLOWED TO EXECUTORS. 933 ant Pett renounc^ ^tt was allowed big 1002. legacy ; but be likewise insiste ' to bave li. more for bis extraordinary pains, trouble, and expense of ae in and about tbe affairs of tbe testator, particularly for bav- lade up some indicate accounts, and got in some desperate bbts; an4 tbere was some proof tbat tbe defendant Pett bad eatly benefitted tbe testator's estate, and -prejudiced bis own (be aself being a mercer), and tbat be bad neglected bis own trade, cd lost some customers wbile be was looking after tbe concerns his testator. This cause was first beard before tbe Master of tbe Bolls, Sir seph Jekyll, wbo declared it to be a rule so settled that a trustee executor in trust should not have any allowance for his care or nble, unless there tvere some particular words n the will for that iTpose,^ tbat be could not break into it ; and tbat tbere was tbe occasion to do so in t)ie present case, as tbd testator bad bere jven the defendant an express legacy of 1001. for bis care and mble ; so tbe testator bad bimself set an estimate and value [{ton it of 1002., wbicb, since tbe defendant bad accepted, tbe urt could not increase. From this decree tbere was an appeal to tbe Lord Cbancellor, efore whom it was insisted by tbe Attorney and Solicitor-General iho had both signed tbe petition of appeal), tbat tbe defendant fett havmg renounced tbe executorsbip, and tbe otber executor nly having proved tbe will, tbe defendant Pett was a stranger ; Dd, in regard tbat be appeared to bave done tbese eminent ser- vices to the estate, so mucb to bis own prejudice, be was entitled I a quantum meruit in tbe same manner as if be bad not been an ecator : so tbat tbis was out of tbe common case,' and to be onsidered as if tbe defendant bad been employed in tbe nature of I bailiff, &c. ; for wbicb reason it was prayed tbat tbe Master iiifjht be directed to bave regard to, and make some allowance |Dr, the great trouble and successful pains taken by tbe defendant I relation to tbe affairs of tbe testator. Lord Chancellor Talbot. — It is an established rule that a trus- |k, executor, or administrator shall have no allowance for his care *i trouble; tbe reason of wbicb seems to be, for that, on these pre- |l 8n mim V. Airey, 1 V«m. 116 ; WiUU r. Kibbk, 1 Bmt. SW. 984 PROCKEDINOS IN THE MASTEH's OFFICE. ** LI 5: tenreH, if aUowcd, the trust estate inim\ to which I can make no addition. However, it being a hard ami let the defendant take back the deposit.^ Noteti — There is no rule better establisbe*! than that stated U i,<^n Talbot in the principal case, viz. that a tru^itee.ejrei^afornradmiiutl trator sluill have no alhivance for his care aruf trouble. It ))n)OiiiiJ upon the well-known principle, almost invariably acted n|H)n hjj Courts of equity that a trnntee shall not profit bi/ his trast. "Tw reason of the rule," observes Lord Cotte)iluiin, " is well stated Robinson v. Pett : ' The reason seems to be, for that, on tlusc pr tences, if allowed, the trust estate might Ixj loaded, and remlcml" little value.' It is not because the trust estate is in any j)ai-ticiili case charged with more than it might otherwise have t<> l>»'ai' lui that the principle, if allowed, wc aliowt? t 8«o Moore v. Frotedi', 3 My. A Cr. 50, where L«>nl CutUiiliaiii ftp|irovwt of IIiIh ri!fc.»ii 8 R«!K. I'Ib. B 1782. fol. .122. 1738, fol. 3.13. by whitli It »|ii»ottrM the Mnittcr mJ tlic R"I'»J'" Senurally, th»t all iwrtlo)! nIiiiuIiI hkre Jiiitt allowMicM, and on a|i|HMU by tliu livfciiuant Pen. ecrov w»cnHatiun for liiu ]>er8uiml trouble or Ioms of time. us, in Brocktioitp v. Barnes, 5. Ma ascertain what would |in)))er to be allowed to liini as a compensation or recompense !)r his luHH of time, jiersonal troul)le, and expense in the manage- i:t aiid settlement of the testator's afiairs, Sir John Leach, V.C., id. " The trustee is of coui'se entitled to all reasonable expenses hi'li he may have incurred in the con trustee, he is within the rule, that he is not entitled to his csi though acting as trustee for other parties. Accordingly, in tin case, his Lordship held, that, the ci^umstance of a solicitor being i trustee will not prevent him from receiving his usual t'ov.ia, when he acts as solicit(jr in such a suit for any of the cestui (jue trust where he acts for himself and his co-trustees, or cestui que tr jointly, provided the costs are not increased by his being one of th parties for whom such joint appearance is made. And see Fmid^ V. Palmer, 4 Y. & C. Exch. Ca. 517 ; but see Bainbrigye v, Blal 8 Beav. 688. Where a solicitor, who is a trustee, is a defendant as a tniste and is held to be entitled to his costs, the coui-se of the Court is i direct them to be taxed as between solicitor and client : Ywk Brown, 1 Coll. 260. , There are, however, some few exceptions to the rule laid down i the principal case. Thus, the trustees and guardisms managing tbj estates of West India proprietors, according to the Actsof AsseniblJ are entitled to a commission not above 6/. per cent., as long as ihd personally take care of the management and improvement of th estates committed to their charge ; but not if they leave the islauij and trust the management to others acting as attorneys ; Chavihcn v. Goldwin, 5 Ves. 834 ; 9 Ves. 254, 257, 267, 273. But althoug they have no right to be paid their commission during alseno they are entitled to what they have actually paid to others for :h management of the estate, provided the payments be in theniselva reasonable ; as to which, if it be disputed, an inquiry will directed ; Forrest v. Elwea, 2 Mer. 68 ; and mortgagees in possessiu are not entitled to any commission, except what is paid by them I the factor for commission, Chantbers v. Goldwin, 6 Ves. 837 ; 9^< 268. ^ — ^ COMPENSATION ALLOWED TO EXECUTORS. 937 So, au executor appointed in the East Indies is entitled, in pass- ; his accounts in the Courts of equity in this countrj', to the ommisfliou of 5^. percent, upon the receipts or payments, according (the practice in the East Indies. See Chethani v. Loi\l Audley, |4Ves. 72, where Lonl RoHHlyn allowed the commission, observing, hat the ai)pointment of an executor in India, no legacy being riven t<> him, was the appointment of an agent for the management lit' the estate ; that there would be no possibility of getting the Dsiness done at all without the allowance ; and if the executors in Dgland were to get a person to do the business in India, they ould not jjet it done so cheap. But an Indian executor will not Ibe entitled to commission if he has a legacy for his trouble, nor can |he,afl«r a long lapse of time, be admitted te renounce the legacy I order that he may claim the commission : Fre&man v. Fairlie, 3 lMer.24. The creator of the trust, as wa? admitted by Sir Joseph Jekyll, [R., in the princi])al case, may direct, generally, compensation to |bt Diade to an executor or trust 3e, for his care and trouble ; or he ay himself fix it at a particular sum of money, or a salary. See |irrovide for it. " It is said," observed his Lord- p, " that it is extremely difficult for a trustee against a cestui I trust, or for a solicitor against a client, to make the client pay Dore than the rules of law allow. I will not venture to say, that, I such a case as this, it cannot he done ; because, if the parties un- Krstand the principle that a trustee, acting as a solicitor in the list mattere, is only entitled to the costs out of pocket, — if the stui que trust has clear knowledge and proper protection, 1 should irdly say that such an agreement is illegal, or that it cannot be led into etiect. This lady, from the first, did know that a trus- e, acting as solicitor, was not entitled to ordinary costs as between olicitor and clionc ; and it does appear that she had other profes- oiial advice besides that given by the trustee himself." 940 PROCEEDIKOB IN THE MAHTER'8 OFFICE. I r- ]^5^* V And even if a trustee makes a valid coutract with his centui i trust for compensation for the trouble incident to the trust, it not be allowed if the trustee, in conwequence of his death or otli«J wise, fail to complete his contract. ThuH, iu Gould v. Fkeiin Mich. 1732, at the Rolls, an executor in trust, who had no ko and where the execution of the trust was likely to he attended wii trouble, at first reftised, but afterwards agreed with the residua legatees, in consideration of 100 guineas, to act in the executorshiil and he dying before the execution of the trust was completed, hi] executors brought a bill to be allowed these 100 guineas out of tb trust money in their hands, insisting that the residuary Imh might as well make a contract with the executor touching the siu plus (which was their own property,) as the testator himself, anJ that no harm could ha^^pen thereby to the trust estate ; but .S| Joseph Kekyll, M. R., said, that all bargains of this kind ought i be discouraged, as tending to eat up the trust ; and here the execi tor had died before he had finished the affairs of the trust. \\Tien fore, the plaintiff's demand was disallowed : 3 P. Wms. 251, n. (AJ 2 Eq. Ca. Ab. 453, pi. 8. Nor will a contract by a trustee with his cestui que trust for pn fessional charges be enforced, unless in distinct and express terms i takes the trustee out of the general rule. Thus, in Mooi'e v. Fro 3 My. & Cr. 45, the plaintiff, a lady, conveyed property to fouri tomeys and solicitors, upon trust to sell ; and directed that the tr moneys should be applied (inter alia) in payment of the charges, and expenses of preparing the indenture of release, and ( t?ie expeTiaea, disbursements, and chary,'s, alrmdy w thereafter to I incurred or svntained or borne by the trustees, or the trusted* i. trustee for the time being, either in professional business, journey or otherwise, for the purpose of negotiating or performing the ments, trusts, and purposes thereinbefore mentioned or directe^l be carried into execution : aiid also all the costs, charges, and e:^ penses of the persons to be employed by them as surveyors, And it was further provided, that tht trustees should, out of trust moneys, deduct, retain to, and reimburse themselves all m reasonable costs, charges, and expenses as they or any of the should or might austavn, expend, or be put unto, in or about execution of all or any of the trusts thereby in them reposed, m costs, charges, and expenses to be reckoned, stated, and paid as COMPENSATION AIJ.OWED TO EXECUTOBS. 041 en attorney and client. The tnisteeN having brought in four ^) the amount of 17()U^. 2h. fur proffHsional charges, it was con- D(lex|>oiiHi!H(>t'|ioi'H<)nNt<) i»t'i'iii|,|,,\>( l»y them an 8urvey(>i>*, »kc., ami all otlin* uxir'Uhoh of caiiviii^j th trustN into execution shall be paid in tlu; Ki'Kt place out ot tin.- |,r, duce of the intended MaleH." " Now, the costs in (piestion beiii)^ tlu^ «»nlinary rciuunt'ij'ti„ii a solicitor, as distinguished from tlit.' costs out t)f pocket, chm>\\ considered as eliarges and expenses incurred, sustainetl, or Ihuh, | the trustees ; but such exprussioiis in terms apply to pu} iiit'iitii ina,li ur liabilities incurred." " The next provision is more sjK^cific. It provides that cacli tr tee is to be at lil)erty to retain and reimburse iiimselfail such reJ sonable costs, charges, and expenses as he may auntdin tir k juM unto, such costs, charges, and expenses to be reckoned, stated paid as between attorney and client; but this provision ni)>loy ngcntN, wIiohc ex- liriisis will Ih' alloW(><| out of the estate. Thus, a trustee, upon niak- jint'iiuta proper caH«\ nmy employ a liailitt'to nuinage an estate and JMeive the rents, (lioniflmn. v, lfiekniorv,.\ Veni. .SIO; Stcwaii v. \H\ i Bro. C. (/. (XitS ;) even altliongl\ a recvnupense may have Ibtru^iven to him l>y the creator of the tnist for his tn>ul»le. Thus. lin iriM*' z*""*' V. WUkiitHtni, 2 S. »fc 8. 21^7, a testator ^'ave annuities lot' Hve guineas each to his trusttses, for the earo and trouble they lniii;lit have in the execution of tlie trusts, and appointed them ex- leciiloix Amongst (»ther proj)erty, the testator was entitled to alN>ut Ifiltv houses in London, thirty-four of winch were let a* wetkly lieuts. The trustees employed a person to collect those reut«, and |tln' Ma»t«'r, on passing their accounts, allowed the sal" y th 'y had jiJ to him ; ami Sir lA. Leach, V.C, overruletl an except'on twk^u Itothe Master's rci>/i 1 on account of that allowance. " It il'««.*8 not lipjk'ar to me " observed his Honor, " that the annuity of hve guineas It'H'ach trustee makes any difference in this case. It is given to Ithemasa recomj)en8e for the care and trouble which will attend the Idue execution of their office ; and, if it be consistent with the due lexecution of their office that th(!y should employ a collector to re- leeive the rent, they will still he entitled to the aimuity. A provi- Ident owner might well employ a collector to receive such rents ; lind the labor of such collection cannot be imposed upon trustees." So aD executor, altliough he may be a solicitor, may em])loy an- lother soUcitor to do business for him in the management of the Itestator's aflairs, (Afaomnumi v. Jo'iies, 2 Dick, 587; Stanea v. wirker, 9 Beav. 389 ;) or an accountant, if the accounts are of a dif- Ificultor complicated nature, (/fe?<(^ /'son v. M'lver, 3 Madd. 275; LVtw V. Joiuis, 1 Hall & T. OS-i :) or an agent to collect debts at a Icommission ; but the Court will reduce it if too high. See Weiss v. jM, 3 My. & K.. 26, where an executor, having charged for the em- Iployment of an agent, at 5^. per cent., to collect debts to the amount |of 2,000^., an exception, taken to the Master's report, who allowed My t\l. per cent., was overruled by Sir John Leach, M. R. " CJene- jrally speaking," said his Honor, " executors are cot allowed to em- jploy an agent to peiform those duties, which, by acce]jting the office |«f executors they have taken upon themselves ; but there may be M 944 PBOOEEDINGS IN THE MASTER'S OFFICER ^ very special circumstances in which it may be thought fit to alio them such expenses as they may have incurred by the employn of agents. It i;i for the Master to determine whether an execut* who makes a claim for the employment of an agent, ought to be i lowed to charge his testator's estate with such a burthen. Master has here thought that the executor ought not to be allowj to charge the testator's estate with the whole commission claima but that 2^ per cent, is a fit allowance. I have some doubt wlietl in this case the Master ought to have made any allowance ; but will the allowance of 2^1. per cent, which he has made, the (lefendattl must be content." 4nd see Hopkinson v. Roe, 1 Beav. 180 ; V. Cro/if, 2 Beav. 488. <,, . . ■-. ■ ' ,■-' ..- ' Upon the principle, that a trustee should not profit by his tr a person, whether he is sole trustee or a trustee j'^intly with otheJ will not in general be appointed receiver with a salary, for thf would be a mode of giving a trustee emolument, (Anon., 3 Ves.511 V. Jolland, 8 Ves. 72 ; Sykes v. Hastings, 11 Ves. 363; sJ v. Jones, 15 Ves. 584 ;) " unless no one else can be procured wU will act with the same benefit to the estate, where there is a necessitj from the circumstance, that, by any one else, the estate would d^ be so well managed ;" (Sykes v. Hastings, 11 Ves. 364, per Eldon ;) and even where a trustee offers to act as receiver withu a salary, the Court will only appoint him to the office on the grou that it is for the benefit of the estate, because it is the duty oft trustee to examine with an adverse eye, and see that the receivj does his duty : Hihhert v. Jenkins, cited 11 Ves. 363, 364. consequence is," says Lord Eldon, " the case of appointing a trustt to be receiver is extremely rare, and only where he will act witto emolument:" Sykes v. Hastings, 11 Ves. 364. It is no objectia however, that a person is trustee to preserve contingent remainden Sutton V. Jones, 15 Ves. 587. So, it is competent for the Court,! a matter of discretion, to appoint an executor and trustee, coDsign^ with ttie usual profits; and where a discretion of that kind has 1 exercised and acted upon, it will not at a subsequent period withdrawn ; Marshall v. Hollmvay, 2 Swanst. 432 ; Mon%on Morison, 4 My. & Cr. 215, 224. Upon the same principle, if a trustee or executor keeps iu hiso^ possession trust moneys which ought to have been invested, altbou T-^ COMPENSATION ALLOWED TO EXEOTTTORS. 94( be not shewn that he made a profit by so doing, he will be charged Iterest, at a rate which may be varied at the discretion of the iirt. See Tehhs v. Carpenter, 1 Madd. 290, 306, where Sir T. fumer, after an elaborate examination of the authorities, observed, it appeared that a distinction had been taken, as in every onl point of view there ought to be, between negligence and Lrnipfio^i in executors. A special case is necessary to induce the lonrt to charge executors with more than 4i. per cent, upon the Dces in their hands. If, however, a trustee or executor employ I trust funds in a trade or adventure of his own, whether he keeps em separate from, or mixes them with, his own private moneys* U notwithstanding the difficulties which in the latter case may I in taking the accounts, the cestui que trust, if he prefers it, ly insist upon having the profits made by, instead of intei-est on |ie amount of, the trust funds so employed. In the important and ding case of Docker v. Somes, 2 My. &; K. 655, trustees had paid ; of the trust funds to their bankers, to the credit of their general ount, without distinguishing the same from the moneys employed 1 their own business of ship-chandlers and sail-makers, it was ued that the trustees only ought to be charged interest for the ist moneys employed by them. Lord Brougham, however, in an sborate judgment, held that the cestui que trusts might at their ition charge them either with interest or with a proportionate of the profits. " A^Tierever," said his Lordship, "a trustee, or b standing in the relation of a trustee, violates his duty and deals ith the trust estate for his own behoof, the rule is, that he shall ount to the cestui que trust for all the gain which he has made, bus, if trust money is laid out in buying and selling land, and a ofit made by the transaction, that shall go, not to the trustee who i so applied the money, but to the cestui que trust whose money been thus applied. In like manner (and cases of this kind are lore numerous), where a trustee or executor has used the fund bmraitted to his care in stock speculations, though the loss (if any) fit fall upon himself, y3t, for every farthing of profit he may lie, he shall be accountable to the trust estate. So, if he lay out lie trust money in a commercial adventure, as in buying or fitting Ota vessel for a voyage, or put it in the trrde of another person, om which he is to derive a certain stipulated profit, although I not say that this has been decided, 1 hold it to be quite clear, ihemust account for the profits received by the adventure or 36 s: O+C proceb:dinos in the master's office. « from the concern. In all these cases it is easy to tell what thj gains are. The fund is kept distinct from the trustee's otheJ moneys, and whatever he gets, he must account for and pay ovcj It is so much fruit, so much increase, on the estate or chattel another, and must follow the ownership of the property aud go the proprietor. ..." " Such V)eing the undeniable principle of equity, such the rule 1 which breach of trust is discouraged and punished — discouraged bij intercepting its gains and thus frustrating the intentions tha caused it — punished by charging all losses on the wrong doer, whill no proht can ever acci-ue to him — can the Court consistently dra\| the line, as the cases would seem to draw it, and except from thj general rule those instances where the risk of the malversation i| most imminent — those instances where the trustee is most likely misappropriate, namely those in which he uses the trust funds iij his own traffic ? At first sight this seems grossly absurd, and son reflection is required to understand how the Court could ever, evei in appearance, countenance such an anomaly. The reason which hJ induced judges to be satisfied with allowing interest only, I takei have been this ; they could not easily sever the profits attributablj to the trust money from those belonging to the whole capital stock and the process became still more difficult where a great proportioj of the gains proceeded from skill or labour employed upon thj capital. In cases of separate appropriation, there was no sud difficulty, as where land or stock had been bought and then solj again at a profit ; and here accordingly, there was no hesitation i at once making the trustee account for the whole gains he made. But where, having engaged in some trade himself, he invested the trust money in that trade along with his own, the^ was so much difficulty in severing the profits, which might supposed to come from the money misapplied, from those whid came from the rest of the capital embarked, that it was deemej more convenient to take another course, and, instead of endeavori^ to ascertain what profit had been really made, to fix upon cer rates of interest as the supposed measure or representative of profits, and to assign that to the trust estate." " This principle is undoubtedly attended with one advantage fkvoids the necessity of an investigation, of more or less nicety, i COMPENSATION ALLOWED TO EXECUTORS. 047 Leh individual oune, and it thus attains one of the important Ibenefits resulting from all general rules. But mark what sacritices |of justice and of expediency are made for this convenience. All Itrnst estateR receive the same compensation, whatever risks they Imiiv have run during the period of their misappropriation — all Iprnfit equally, whatever may he the real gain derived hy the trus- jtep from his breach of duty ; nor can any amount of profit made Ibe readied by the Court, or even the most moderate rate of mer- Icantile profit — that is, the legal rate of interest — be exceeded, Ifbatever the actual gains may have been, unless by the very Iclnmsy and arbitrary method of allowing rests, in other words, iMmpound interest, and this without the least regard to the profits lictiialiy realized ; for, in the most remarkable cases in which this Inifthod has been resorted to {Raphael v. Bohem, stated in 11 Ves. |92, and 1 Madd. 300, which, indeed, is always cited to be doubted, not disapproved), the compound interest was given with a view I the culpability of the trustee's conduct, and not upon a"ny esti- nate of the profits he had made by it." "But the principal objection which I have to the rule is founded kpon its tendency to cripple the just power of this Court in by far p most wholesome and indeed necessary exercise of its functions, jind the encouragement thus held out to fraud and breach of trust. ]iat avails it towards preventing such malversations, that the ontrivers of sordid injustice feel the power of the Court only irhere they are clumsy enough to keep the gains of their dishonesty «Tered from the rest of their stores ? It is in vain they are told |)f the Court's arm being long enough to reach them, and strong nough to hold them, if they know that a certain delicacy of touch I required, without which the hand might as well be paY-alyzed or brunk up. The distinction — I will not say sanctioned, but r>ointed i by the negative authority of the cases — proclaims to executors trustees, that they have only to invest the trust money in the eculations, and expose it to the hazards of their own commerce, nd be charged 61. per cent, on it, and then they may pocket 151. rial, per cent, by a successful adventure. Surely the supposed ticulty of ascertaining the real gain made by the misapplication I as nothing compared with the mischiefs likely to arise from ad- mitting this rule, or rather this exception to one of the most gene- rules of equitable jurisdiction. ii 948 PROCEEDINGS IN THE MASTER'S OFFICE. s: ** Even if cases were more likely to occur than I can think theyl are, of inextricable difficulties in pursuing such inquirieH, I gboaldl still deem this the lesser evil by far, and be prepared to em- brace it. "Mr. Solicitor- General put a case of a very plausible aspwJ with the view of deterring the Court from taking the course whichl all principle points out. He feigned the instance of an apotbecaryl buying drugs with 1002. of trust money and earning 1000/. a yearl by selling them to his patients ; and so he might have taken tbel case of trust money laid out in purchasing a piece of steel, orl skein of «ilk, and these being worked up into goods of the tiutst| fabric, Birmingham trinkets or Brussels lace, where the work ex- ceeds by 10,000 times the material in value. But such instances.! in truth, prove nothing : for they are cases not of profits upon! stock, but of skilful labour very highly paid ; and no reasonable! person would ever dream of charging a trustee, whose skill thus bestowed had so enormously augmented the value of the capitalj as if he had only obtained from it a profit ; although the refine ments of the civil law would certainly bear us out even in charging all gains accruing upon these goods as in the natm'e of accretions belonging to the true owners of the chattels. . . ." " The last person who can be heard to argue from the difficult of tracing or apportioning the profits of the misapplied fund, the man whose breach of trust has caused the misapplication an^ created the difficulty." " When did a court of justice, whether administered according ta the rules of equity or of law, ever Usten to a wrong doer's argn-j ment to stay the arm of justice, grounded on the steps be hims had successfully taken to prevent his iniquity from being traced! Rather, let me ask, when did any wrong doer ever yet possess tiwj hardihood to plead, in aid of his escape from justice, the extrcD difficulties he had contrived to throw in the way of pursuit an^ detection, saying, ' You had better not make the attempt, for yo find I have made the search very troublesome ?' The answer ' The Court will try.' See also Palmer v. Mitchell, 2 My. & K. 672 n. ; Wedderbum v. Wedderbum, 2 Kee. 41 ; 4 My. & Gr. 41 ; f(x hrooke v. Balguy, 1 My. & K. 226." • m (COMPENSATION ALLOWED TO EXECUTORS. 949 Sbf" i, however, in any case a sorious difficulty arise in tra- Iting ar.i". apportioning the protits derived by a trustee or executor the employment of trust funds together with his own, in any Itnde or speculation, it may be a reason for referring a fixed rate Iflf interest to an account of the profits. If. however, a person is merely a constructive trustee, from hav- ig employed the money of another in a trade or business, and oes not expressly fill any fiduciary character as that of trustee or I executor, although he must account for the profits of the money he fed, he will have an allowance made to him for his loss of jtime. skill, and trouble. Thus, in Brown v. Litton, 1 P. Wms. |l40; 10 Mod. 20, the captain of a ship, haviug $800 on board, Ifhich he intended to invest in trade, died on his voyage, and the mate, becoming captain, took the 800 dollars, and, investing them lin trade, made great improvements thereof, and on his return to lEngland the executrix of the first captain brought a bill against for an account. The defendant admitted the receipt of the Imoney, and oflfered to repay the same with interest, whereas the iff insisted on the profits produced in trade, and tho several linTestmenta that had been made therewith. Lord Keeper Har- jeoort, however, considering that the defendant was like a trustee, Iheld that he ought clearly to account for the profits made of the Imoney ; but that, to recompense him for his care in trading with lit, the Master should settle a proper salary for the pains and trou- lUe he had been at in the management thereof. And his Lordship leompared it to the case of two joint traders, where, if one dies and Ithe survivor carries on the trade after the death of the partner, the |»Qrvivor shall answer for the gain made by this trade ; and, this an island, all imaginable encouragement ought to be given Ito trade ; and such construction was for the benefit of him who |«irried out this money with that intent, and there was no reason bat his death should so far injure his family and relations as to jieprive them of the benefit which might accrue from it in the way |rf trade. In Brmon v. De Tastet, Jac. 284, on the death of one of be partners in a business, the survivor retaining his capital, and nploying it in the trade, was decreed by Lord Eldon to account the profits derived from it, but proper allowances were to be jnade to him for his management of the business. And see Craw- *<»y V. CoUim, 16 Ves. 218; 1 J. & W. 267; 2 Ruse. 326; i\ ^ 950 PROCEEDINGS IN THE MASTERS OFFICE. Feathei-Htonhaugh y. Fenivick, 17 Ves. 298 ; Cooke v. Cnllinqrldq,] Jac. 607. • ' '" ' " Upon the same principle a trustee will not be allowed to liavj the sporting over the trust estate, nor to apf )int gamekeepers preserve the game for his own amusement ; see Webb v. Thr Eufi of Shaftesbury, 7 Ves. 488, where Lord Eldon directed an emiuir whether the liberty of sporting could be let for the beuefit of th] cestui que trust ; and if it could not, he thought the prame wonli belong to the heir. If it was necessary for the preservation of tiij game, that the trustee should appoint a gamekeeper, he would nd be prevented from appointing one, but for that purpose only : foj he could not, under the will, have an establishment of pleasure oJ the trust estate : and see Hutchinson v. Morritt, 3 Y. & C, Eich| 647. . ■ ' ■ So, likewise, a person standing in a fiduciary relation towardj another will not be allowed to benefit by his trust 1 j obtaininf; renewal of a lease (see Keech v. Sandford, and note, 1, W. & T.LC p. 32) ; or by purchasing from his cestui que trust {Fox v. AMI reth, W. & T. L. C. Vol. 1, p. 72). And the principle is applicableti receivers {In re Ormsby, 1 Ball & B. 189) and committees of lunatij estates: ^won., 10 Ves. 103. > < •' <'!i Although trustees and executors are not allowed any rerauueri' tion for their trouble, they will be allowed all proper expenses oi of pocket, whether they be provided for in the instrument creatini the trusts or not : Hide v. Haywood, 2 Atk. 126 ; Worrcdl v. Ho ford, 8 Ves. 8; Dawson v. Clarke^ 18 Ves. 254; Attor}uy-Oem\ V. The Mayor of Norwich, 2 My. & Cr. 424. Thus, ^ ^ •' allowed the expense of travelling {Ex parte Lovegrovt. ,, 763) ; of fees for counsel (Gary, 14); costs of a law FjJ)* i ■' V. Bradbourne, 2 Ch. Ca. 138 ; Feams v. Young 10 \ts, i.84i unless such expenses were improper {Malcolm v. 0'Calla(fhan,'il & C. 52); or the litigation occasioned by his own negligeuce Cafrey v. Darby, 6 Ves. 488, 497. But it seems he will in no cai be allowed interest on Iiis costs : Gordon v. Trail, 8 Price, 41 Although a trustee ought to keep an account of his expenses, h not having done so will not, it seems, disentitle him to an allow ance : Hethersell v. Hales, 2 Ch. Rep. 158. And he will iiave ^ICE. COMPENSATION ALLOWED To EXECUTORS. 951 i. '■ te V. CollinfinA (J ■ B allowed tdliavj it gamekeepers Webb V. Thr Ld rected an enquirJ the beuefit of thj t the frame wnnl reservation of th] sper, he would no purpose only ent of pleasure o^ , 3 Y. & C, Exch relation towardj st 1 7 obtaining e, 1,W.&T.L.C| list (Fox V. Mackl Die is applicable tJ imittees of lunatiJ d any remuuera^ iper expenses on Btrument creating Worrcill V. Hart Attorncii-^lreni^ Thus, >. - law f.'ji*' i''?'^'' %g 10 Vfs, 1841 0'CflWrtf//'««,3M own negligence j le will in no -aiU 8 Price, 416 his expenses, hii him to an allow] he will iiave «Donthe trust estate for his expenses {Ex parte James, 1 Deac. [ C. il'i) ; ^ut it does not extend to the persons employed by him I the affairs of the trusts {Worrall v. Harford, 8 Ves. 8 ; Lawless Vshaw, L. & G., t. Sugd., 164, reversed Dom. Proc. 6 C. & F. |29) ; and if the trust estate no longer exists, the trustee may ceed in equity against the cestui que ti:ust personally : Balsh v. !fy/i(im, 2 P. Wms. 453. A trustee may, however, from accidental circumsta nces, profit It his trust, as where the cestui que trust dies intestate without lieirs ; for in that case the lord cannot claim by escheat, and, sub- cttotbe right of creditors, the trustee rnny retain possession, not ky any title of his own, but because no other person can shew a title. This was determined, after much discussion, in the import- Dt case of Burgess v. Wheate, 1 Eden, 177. There A., being eized in fee ex parte paterna, conveyed real estate to trustees, in st for herself, her heirs and assigns, to the intent that she ^hould appoint, and for no other use, intent, or purpose whatsoever. , died without having made any appointment, and without heirs : parte paterna. It was held by Lord Keeper Henly and Sir Ihomas Clarke, M.E., first, that the maternal heir was not entitl- 1 ; and, secondly, that "there being a terre tenant, the Crown, ^laiming by escheat, had not a title by subpcena to compel a «onveyance from the trustee, the trust being absolutely determined ; [bat no opinion was given upon the right of the trustee : and see Utomey-General v. Sands, Hard. 496 ; Taylor v. Haggarth, 14 Sim. 18. But a trustee must convey to trustees according to the direc- Itions of a testator, although the trusts for which the conveyance Iwas directed may have failed or never arisen : Onshiv v. Wallis, |lHaU&T. 513; IMac. &G. 506. . In case of the attainder of the cestui que trust for felony, it JMems to have been the opinion of Lord Keeper Henley and Sir |Thomas Clarke, M. K., that if he were pardoned by the Crown, he enforce the trust : see 1 Eden, 210, 255. Lord Mansfield, Ihowever, observed that he could find no clear and certain rule to go by ; and yet he thought equity would follow the law throughout : 11 Eden, 236. It seems, however, doubtful whether the heir of a person executed for felony could sue the trustee. See Br. Ab. hit. "Pefif. al. Ub."34. V Tin 952 PROCEEDINQS IN THE MASTERS OFFICE. ■ft i 5^ It is clear, however, that upon failure of the heir of the cestu (|uo trust, the trustee cannot come into equity as plaintiff, to asser his right (see 1 Eden, 212, and Williams v. Lord LonsdaU, 3 Vea 752), in which case a copyhold (duly surrendered) was devised tj A. and his heirs, in trust for B. and his heirs. Upon the death '3. without heirs, it was held hy Lord Rosslyn, that the heir of tlij trustee iiad an equity to compel the lord to admit him ; aud hij bill was dismissed without costs. " The only point," observed bij Lordship, " determined in Burgess v. Wheate, was, that the Crow entitled as it was supposed by escheat upon the death of the cestu que trust, had not a title by subpoena in this Court to make tlij heir of the trustee, having merely a legal estate, convey; tha there was no equity for this Court to exercise jurisdiction. Is no the converse of that equally true ? If the lord has no equity ill that case, can I find any ground of equity where the person havinij the legal estate, and telling me he has no beneficial interest, de sires me to act for his benefit upon the estate of the lord ? Th^ Court considers the mere legal estate as nothing." But the Cou of King's Bench will, by mandamus, compel the lord to admit tlid heir of a h-ustee, although he has a mere legal title : The A'm^vj Co gau, 6 East, 431 ; S. C, 2 Smith, 417 ; King v. Wilson, 10 BJ & C. 80. . * ' Lord Mansfield asked, in Burgess v. Wheate (see 1 Eden, 1851, whether, in the event of the attainder of the cestui que trust, M right would not result to the creator of the trust : but no notid ajjpears to have been taken of this observation, nor does the queBJ tion ever appear to have been determined. If the cestui que trust of real or personal chattels, hamng nij next of kin, dies, either intestate {Jones v. Goodchild, 3 P. Wm& 33 ; Rutherford v. Maule, 4 Hagg. 213 ; Taylor v. Haygarth, 1^ Sim. 8), or if, under the old law, having made a will, he appoints an executor, who, either expressly or by implication, was exclude! from all beneficial interest, so as to be converted into a mere trus- tee {MiddleUm v. Spicer, 1 Bro. C. C. 201; Barclay v. EmieU,\ Ves. 424 ; Henchman v. Attorney -General, 3 My. & K. 492; Cat^ V. Roberts, 8 Sim. 214), the Crown in either case, by virtue of ih prerogative, may claim the chattels as bona vacantia ; but if unde the old law there was nothing in the will to convert the executoil COMPENSATION ALLOWED TO EXECUTORS. 958 linio a trustee ; or if, since the passing of 11 Geo. 4 & 1 Will. 4, c. m it appears to be the intention that he shall be the beneficial loffoer, the Crown cannot make good its claim. In the American nutcH to this case it is said : — The rule, that a Itrustee shall not profit by his tru8t, when carried to the ex- IteDt of denying a re&sonable compensation for his services, has, L the present day, but a limited application on t\is side of the lAtlantic. ' I'he state of our country, and the habits of our people lire so different, as to have induced the legislatures of nearly all the litates t<) introduce provisions by statute for competent remuneration Ito those to whom th(; law commits the care and charge of the estate lof infants and deceased pei'sons, and the Courts make a reasonable lillowance to receivers appointed by them, besides reimbursing their Lpenses. . . . And the equity of the statute is, by construction* IgeDerally extended to conventional trustees when the agreement is liileut" Boydv. Hawkins, 2 Dev. Eq. R. 334. The rule of Robinson v. Pett, has, however, at an early day, re- Iceived very cordial approbation in parts of this country, and in one Istate at least, (Delaware,) continues to prevail at the present time. Iln New York, Chancellor Kent, in the early case of Oreen v. Winter, [1 Johns. Ch. 37, declared, that even were he free from the weight [of English authority, he would greatly hesitate before he undertook I question the wisdom of this rule, and in the subsequent carefully onsidered case of Manning v. Manning, Id. 534, the same learned ^udge enforced his views by a reference to the rule of the civil law, od added, " nor does the rule strike me as so very unjust, or singu- ■ and extraordinary ; for the acceptance of every trust is voluntary ad confidential ; and a thousand duties are required of individuals, ireUtion to the concerns of others, and, particularly, in respect to ^umerous institutions, partly of a private, and partly of a public ature, in which a just indemnity is all that is expected and grant- I should think it could not have a very favourable influence on lie prudence and diligence of a trustee, were we to promote, by the jiopes of reward, a competition, or even a desire, for the possession [>f private trusts, that relate to the monied concerns of the helpless nd infirm. To allow wages or commissions for every alleged ervices, how could we prevent abuse ? " But, as was pertinently remarked by Judge Story, " to say that s: 954 I'KOL'EEUINUS IN THE MASTER'S OPFUK. no one is obliged to take upon himself the duty of a trustee is evade, and not to answer the objection. The poliey ot the lav ought to be such as to induce honourable men, without a Hacritic of their private interest, to acce[)t the office, and to take away thJ temptation to abuse the trust for mere selfish purposes, as the i.nH inil^mnity for services of an imj)ortant and anxious character. EuJ Jurih $5 12(58, n. Such seems to have been the view goneraily taken throughout this country, and though at an earlv period some of the states recognized tlie English rule, yet in thc^ as in New York, its judicial adoption called forth almost immediate legislative interference ; while in others, the allowance of a coiiijten-l sation to all acting in a fiduciary capacity, either formed a part their local common law, or proceeded from an equitable construe-! tion of some statue. The subject, however, of a trustee's compensation, is intimately! connected with that of his liability. Where he is treated as a pai(| agent, and has undertaken the trust as such, it would seem that hi^ accountability would be much greater than where his services hav« been gratuitously rendered. Accordingly, it was well said by Oiln son, 0. J., in Ex [jarte Caasel, 3 Watts, 443, " that a trustee answerable for negligence, only where it is so gross as to be evideiic of wilful misconduct, is not to be disputed. But the reason of tlid rule shows that it is not for cases in which the trustee is to receivej a stipulated compensation. It is said that a trustee, even cf charity, may not be charged for more than he has actually receive except for very supine negligence, and that the gratuitous nature i the service distinguishes him from a bailee for hire. 2 Fonbi. 17H| . . .But the foundaticm of the rule fails entirely when the trust been accepted on terms of receiving a stipulated reward." In sucb cases, the familiar principles apply which govern the compensation to paid agents and bailees. Story on Agency, § 3245, &c. m there would seem to be a medium degree of accountability, whicli would arise in cases where the trust has been undertaken, not, mj deed, wholly gratuitously, nor yet with a stipulated reward, buj with the expectation of receiving such com|)ensation as comes with-l in a court's discretion to allow. But the rules upon this subje seem to be as yet so various and local as to render unsatisfactonj any attempt at their uniform classification. The i)enalty imf for wrongful or negligent acts or omissions is usually inflicted byi "''^I COMPENHATION ALLOV.'FO TO KXECUT(3RS. 955 inje of intt'roHt, either nimple or ci)in|>(Miiul, hy a fi)rleiture of coiii- Lnsatiou either in part or in whole, or by b{)th of these inethodH. he cases upon the subject of interest have l^een ably classified by Ir. Wallace, in liis noti^ to Sell ec.h v. French, 1 ^Anier. Lead. Cases. Btwillbi' seen tliat in tho.su states where compensation is, by statute, itter oi right, it cannot be forfeited by any nii.sconduct, however DS8, wliile in others it is thought that the penalty of interest hould not carry with it that of also taking away the compensa- tion, in s'diie ])arts of the country, legislativ" provisions have now fixed Ih (til tlu' amount of etmipeiLsation, and tlie manner in which it [iball 1* allowed ; in others the statutes are less precise, being sometimes nerely declamtory of the general principle ; but in these, courts have ndeavourod to form a standard with as much precisi relieved from his duties, would only be granted by his payiiu'tli costs of the petition and the appointment of his successor, and 1 being allowed no commissions on the transfer of the subjects of tlj trust. , „ , , ']^ •it!-- It will be observed, that the statute does not sjjecify how mud is to be allowed for receiving, and how much for paying out tlJ amounts on which commissions are to be charged ; " and it uia| sometimes happen," as was said by Walworth, Ch., in Kellogg nm 7 Paige, 267, " upon a Iols of the fund, without any fault of ttl guardian or other trustee, or upon a change of trustees, tliat tl| guardian or trustee may be entitled to compensation for one'senit and not for the other." The rule in general, was, therefore, said I be, " to allow one-half commission for receiving and one-half fJ paying out the trust moneys." In that case, the guardian had beej allowed commissiims for receiving and paying out the amount of legacy bequeathed to his ward, although its principal pait had id invested by him. " This mode of computing the commissions woulj be correct, if the infant were now of age ; and this was a tia settlement of the account of the guardian, with a view to tumov^ the whole fund to his ward. . . . But it certainly was not th intention > '■' the legislature, or of this court, to sanction the priucip of allowing to the guardian or trustee, full commissions upon overj receipt and reinvestment of the trust fund committed to his caij and arrangement. The result of such a principle of computing tli allowance for ronnnissions, if the investments were made from yea to year and the accounts rendered annually, would be to give vi trustee his full commissions upon the principal of the trust luij every year, as well as upon the income received and expended im time to time. . . The proper rule, therefoi-e, for computing tlj commissions upon the first annual statement, or passing of ti^ accounts of the guardian, receiver or committee, who is requii-ea I render or pass his account periodically, during the continuance of t ^- — m COMPENSATION ALLOWED TO EXECUTORS. 995 st, is to allow him one-lialf of the comniiHsioiis, at the ratos speci- in the statutes, upon all moneys received by him as such tftee, other than the principal moneys received from investments Je by him on account of the trust estate. And he is also to be llowed his half commission on all moneys paid out by him in bonds nd mortgages, stocks, or other proper securities, for the benefit of I trust estate under his care and management, leaving the residue bis half commissions upon the fund which has come to his hands, nd which remains invested or unexpended at the time of rendering [passing such account for future adjustment, when such funds Jl have been expended cr when the trustee makes a final settle- Lent of his account upon the termination of the trust. And upon ^ery other periodical statement of the account during the coutinu- nce of the trust, half commissions should be computed in the same anner upon all sums received as interest or income of the estate, ■as further addition to the capital thereof, since the rendering or sing of his last a,ccount, and half commissions upon all sums xpended, exceot as investments." See also Livingston's case, 9 [•aige, 403, Where the trustees are more than one in number, the commis- kons are computed upon the aggregate sums received and paid at by all of them collectively, and not u])on the amounts received nd disbursed by each individually : five per cent, is thus allowed bpon the first $1000 of the whole estate, &/C., and the wliolo commis- Bons are then, if necessary, apportioned, either equally or in propor- 1 to their respective services ; y alentine v. Valentine, 3 Barb. 438 ; but double commissions are not allowed when an execu- loris to act in the double capacity of executor and trurtee ; Valen- iny. Valentine. There seems to be a liberal deposition to sanction the payment of ents, clerks, &c,, whenever their employment has been necessary I the trust; McWhorter v. Benson, Hopk. 28; Cain.es v. Ghaubert, • Paige, 164. With respect to counsel fees, the statutes having pxedthe allowance to be made to advocates and proctors in surrog- ate courts, which are taxed as costs in the suit, to be paid either by pJ adverse party or out of the fund, it is held that these cannot be xceeded; Halsey v. Van Amrlnge, G Paige, 12 ; Bvrtis v. Dodge, Barb. Ch. 91. Nor can an executor be credited with a counsel iW for drayring up his accounts in proper form for final settlement ; 960 PROCEEDINGS IN THE MASTER'S OFFICE. s: Burtis V. Dodge. But to trvsteea, who have not improperly iiniieceasai'ily litigated, counsel fees arc allowed ; Jewett v. Wood\ wji'd, 1 Edw. Ch. 200 ; but not when the professional services wen more for the benefit of the trustee than of the estate ; Meacham i Sterns, 9 Paige, 407 ; the question of costs will likewise depenij upon the same principles ; Spencer v. Spencer, 11 Paige, 299. In Pennsylvania, the only statutory provision on this subject, wa an act passed in 1713, which authorized Orphans' courts to ordeJ the payment by executors, of such reasonable fees for copies, and " all other charges, trouble and attendance, which any officer or othei person should necessarily be put to," as the court should deem jusU It was said by Tilghman, C. J,, in Wilson v. Wilson, 3 Binn. 560 that the compensation to executors, " extends as far back as thete tamentary law can be traced," while that to trustees, guardians, kj seems to have been sanctioned by practice, upon an equitable con| struction of this statute ; Prevost v. Gratz, 3 Wash, C. C. R. 434. But however settled by the common law or usage of the state th practice may be, so that an executor is not competent as a witnesi till he has released the contingent compensation that may be allowei him; Anderson v. Nef, 11 Serg. & Rawle, 218; still the compen tion is purely one of grace ; ' Ex parte Cassel and Spayd, 3 Watb 44)3. " Although it is perfectly just and reasonable," said Kennedy J., in SwartswaUer's Accounts, 4 Watts, 79, " that eveiy one actu under proper authority in the character of a trustee, should receivJ a fair compensation for his services, yet it is of infinite iraportana to the public, as well as to the individuals interested in the execuj tion of the trust, that he should perform the duties of it, with m most strict honor and integrity .... Now it is certainly inconsistenj with every principle of retributive justice, that a trustee ^m betrays the confidence reposed in him, and attempts to defraud th^ cestuis que trust, by appropriating the trust funds to the discharg of a pretended claim of his own., should receive the same rewa that is due to virtue only, and given as a remuneration for service rendered with a view to advance i • '». interests of the cestuis qud trust. On principles of policy, as well as those of morality anil justice, in order to insure a faithful and honest execution of th^ trust as far as practicable, it would be inexpedient to allow to tb trustee who has acted dishonestly, and with an intent fraudulently! COMPENSATION ALLOWED TO EXECUTORS. 061 Bvert the trust funds to his own use, the same compensation with 1 who has acted uprightly in all respects, and with a single view ) promote the true interests of his cestuis que trust. The withhold- ■ compensation altogether in the first case, and bestowing it only 1 the latter, may have a tendency to deter trustees from attempt- r anything unfair in the execution of the trust, and induce them, 1 the same time, to perform their duties with common honesty at ,- iist, if not with ail the skill and diligence that might possibly be! pplied;" Say v. Barnes, 4 S. & R. 116 ; Aston' a Estate, 4 Whart.- kW; I>yoit(s Estate, 2 W. & S. 566 ; Fournier v. Imjraham, 7 Id.* \\ ; McCalian's Appeal, 7 Barr. 59. " An opinion seems to prevail," [was said in Stehman's Ajypeal, 5 Barr, 414, by the court below, hose judgment was affirmed by the Supreme Court, " that a trustee I always, and under all circumstances, to be paid a commission upon lie fiinds which pass through his hands .... It is time that it should I distinctly understood, that a trustee may not only be made to »y the cost of litigation improperly carried on for his own benefit, |)ut that he can receive no compensation for his services, where he I shown a want of good faith, and ordinary care and diligence in he execution of the trust." And in Bredin v. Kingland, 4 Watts, 20, the same principle was applied to an attorney, who neglected I pay over money received for his client. „. , r • It naturally follows, that although as a general rule, there is a llingness to allow reasonable counsel fees and other expenses essary for the proper guidance of the trustee, and the direct Dterest of the ^estate, " on the principle that a trust estate must ar the expense of its administration;" {Mumper's Appeal, 3 Patts k Serg., 443 ; Burr v. MaEiien, Baldw. 154 ; Armstrong's 'iate, 6 Watts, 237 ; Scott's Estate, 9 Watts & Serg. 100 ; DietHch Heft, 5 Barr, 94 ; Pusey v. Clemson, 9 Sergt. & Rawle, 309 ;) yet nch is not the case, where the effect is to throw these expenses on hose, who either have no interest, or an adverse interest, in the i>mR i^MTsuQd ; Brinton's Estate, 10 Baxr, 4:11. Thus an executor is not entitled to a credit for counsel fees paid • sustamthe validity of his . testator's will; Dietrich's Appeal, 2 hi\6, 332 ; KoppenJiaffer v. IsaxjAis, 7 Id. 170 ; Royer's Appeal, 1 wris, 573. " If the person appointed by it as executor, be named ' as a legatee or devisee, then, as such, he may be deeply inter- 37 962 PROCEEDINGS IN THE MASTER'S OFFICE. s: ested also in efltablishing it to be the last will of the deceased. Bo it is clear that creditora and the rest of the world, have no inten whatever in the question ;" Mumper' 8 Appeal. In Boyer's Apin 1 Harris, 573, Bradford v. Boudinot, 3 Wash. C. C. R. 122, w« overruled, and Oeddis's Appeal, 9 Watts, 284, explained. So, where there is a contest between the executor and the disti butees. " Where an estate is so situated," said Huston, J., Sterrett's Appeal, 2 Penn. 426 ; " that legal advice is proper direct the course of the executors, or where they must bring suiti to recover part of the estate, or defend suits brought against then counsel must be employed, and where they are employtJ to obi what is honestly supposed to be the rights of the estate, the esUtl ought to pay the reasonable counsel fees. But where executon neglect to settle and pay, and are sued by creditors, or cited bi heirs, and employ counsel to defend them in their iniquity, d| counsel fees shall come from the estate. The man who is doin wrong, must himself pay the expense, of that wrong ;" /fie^fCT'l Appeal, 7 Barr, 457 ; Swatzwalter's Accounts, 4 Watts, 77. These cases are distinguishable from Scott's Appeal, 9 Wattal Serg. 100, where the whole estate having been devised to a charitjj the executor was allowed counsel fees, paid by him, in opposii proceedings instituted for the purpose of escheating the estate, the executor litigated " for the interest of the party who got whole estate by the litigation, and who then refused to reinbu him for his expenses." . • . In the matter of Harland'a Accounts, 5 Rawle, 330, the cou^ did not evince the same disapprobation of specific compensation, has been expressed in New York, in McWhorter v. Be'n8on,( supra. " It may be awarded," said Gibson, C. J., " in a gross sun according to a common practice in the country, which 1 talte to the preferable one, as it necessarily leads to an examination of th nature, items, and actual extent of the services, which the adoptioj of a rate per cent, has a tendency to leave out of view ;" and i Armstrong's Estate, 6 Watts, 237, McFarland's Estate, 4 Barr, UJ and Brinton's Estate, 10 Barr, 411, the allowance was made in[ gross sum. Ashurst v. Given, 5 W. & L. 329, was a case of a dcv by a father to a son, in trust for the children of the latter, whoi COMPENSATION ALLOWED TO EXECUTORS. 963 consideration of performing the trust, which was of a valuable complicated estate, " to be allowed a reasonable support out of I trust fund, for his personal services." It was held that no part fthe estate could be taken into execution, for the debts of the trustee. But in general, the practice of allowing compensation, by commis- lons seems to prevail ; and with respect to their amount, although per cent, is the usual commission charged, Pusey v. Clgmson 9 k Rawle, 209 ; PennelVs Appeal, 2 Barr, 216 ; Hemphill's iute, Parson's Equity R. 31 ; yet in the reported cases, the same ariety of determination is found in this as in other States. In myy. Clemson, Tilghman, C. J., said, "In the cases which generally ur, it appears to me, after considerable research, that the common inion and underatanding of this country, has fixed upon five per Dt. as a reasonable allowance. But to this rule there must be ex- iptions. There are estates, where the total amount is small, and it too, collected in driblets. In juch, five per cent, would be fficient. On the contrary, there are others, where the total being large,* and made up of sums collected and paid away in large , five per cent, would be too much. It must be left to the iscretion of the courts, to ascertain those cases in which the general le should be depai-ted from. The personal care and anxiety of the ecutor, is a fair subject of consideration. An estate not equal to le payment of its debts, is always attended with hazard, which ould not be forgotten in fixing the compensation." In that case, e estate being large, " the trouble having fallen principally upon e counsel employed for the executors, for whose reward a very iberal allowance had been made, and all the expenses of the executors vingbeen paid, over and above their commissions ; " and the money iving come into the hands of the executors in large sums, the immissions were reduced to three per cent. So in talker's 'Me, 9 Serg. & Rawle, 225, where the estate consisted principally bank stock, which was transferred by the executors to the legatees, that the executor did not collect the proceeds and pay it over, ree per cent, was said to be a very ampl^ allowance. The same rule adopted on the authority of these cases, in Miller's Estate, 1 limead,33o. ' -' ■■"■ t? ^ •• • ' *' -■- ''-' ''":■ '■ uses, 4.' !>•■• But where in Guien's Estate, 1 Ashmead, 317, a testator gave to 1 executors '^ . o per cent, on the " net proceeds " of his estate, which 964 PROCEEDINGS IN THE MASTER'S OFFICE. ^ was supposed to be solvent, but turned out otherwise, the commissioi were raised to four per cent. " An allowance made to the executoi of a solvent estate," said King, Pres. J., " in the adjusting of whicl little difficulty or res, onsibility could arise, would be maiiifestl inadequate to the labor and responsibility of collecting the scatterei funds, settling the complicated transactions, and distributing thi proportions of the estate of an insolvent merchant, in large busin It may be sai , that the executors accepted this trust with the com pensation fixe (**, and are bound by the acceptance. The answer this is, that " the'; did so, it was with reference to the state oi things presen >d I ^''rae will, the settlement of a solvent estate, noil the collection and distribution of the scattered assets of a bankrupl estate. . . .To show the effect produced by the insolvent condition oi this estate, let us suppose the testator had fixed fifteen per cent. the amount of compensation to be taken by the executors. Thi direction would be certainly disregarded, and the executors allowi no more than a just compensation for their labor. The best light ii which such a direction could be viewed, would be as a legacy to thi executors, and as such it must await the satisfaction of t^e debts oi the decedent. Fretwell v. Stacy, 2 Vernon, 434. Otherwise, fixii an extravagant compensation to executors, would be an ingenioui mode by which an insolvent could make valuable bequests. It is bad rule that will not work both ways ; and if the insolvency of thi estate would defeat a liberal allowance for care and trouble givei bv the testator to the executor, it must leave the executor free claim a sum beyond that fixed in the will, where the justice of thi case demands that he should have it. Where an estate is insolveni all the dispositions of the will are superseded, and the liabilites am rights of the creditors and their trustees, the executors are to ascertained by the general rales of law." These principles, are clearly explained, as to be of universal application. Upon sales of real estate by executors or assignees for th^ benefit of creditors, three per cent, on the proceeds, seems to in general, thought sufficient. Nathans v. Morris, 4 Wharton, 389 and two and a half per cent, on proceeds amounting to over $40,0 of which $13,000 came into the hands of the assignees, and thj residue continued as a lien on the property, was allowed in Shm and Freedley'a Appeal, 2 Barr, 307, where it was correctly said b^ the Court below, that " a sale of real estate brings the proceeds int( fl\ COBfPENSATION ALLOWED TO EXECUTORS, 965 be account as effects in hand, and it is easy to see a strong temptation I make such sale, although not necessary it may be as to much or ome of the asignor's land." So with respect to commissions on re- Qvestments by trustees ; " If too freely given," said King, Prest. J. I Bartons Estate, Parson's Eq. R. 29, " they afford in a trustee with discretion, great temptations to repeated changes of the curities of the fund. . . .Two and half per cent, on h}ch re-invest- nents, is greatly to large a commission. Purchase^ of city and ounty stocks are made through brokers, who for onev^iuarter of one CT cent., make the purchases, obtain the trans; e s, an j,pay over the iirice to the vendor. Now to allow a trustee .wo ^^ &< half per at on such re-investments, in addition to the usual brokerage, is I severe a tax on the trust fund. If called upon to fix a standard k compensation to a trustee, for investments so simple and free from je or responsibility, I would say one per cent, came nearer accuracy ban two and a half" The same able judge in the subsequent case |of the Ti'ustees of Maria Hemphill, Parson's Eq. R. 31, laid down he following principle. " As a general rule, commissions on the principal sum coming into the hands of a trustee, and on the re- nvestment thereof, will not be allowed ; particularly when the usual ommission of five per cent, has been charged on the interest and broiits derived from such investments. Commissions and brokerage, nd all the other usual expenses paid by them, are properly hargeable to the estate. But where the investments and re-invest- aents, are made without any extraordinary 'labour or trouble, the ommission of five per centum charged on the annual receipts of in- ome is an adequate compensation for the trustee's care and trouble, i well for making such re-investments as for receiving their income. here may arise cases, in which from their specialties, this general ule should not be applied ; but these must aJways be regarded aa [exceptions." In Stephenson's Estate, 4 Wharton, 104, a very precise basis was led by the Court, with respect to executors, who, of course charge heir commissions on the whole amount of the estate. " The respon- pbility which is incurred by the receipt and disbursement of money, lalegitimate subject of compensation, and an imvarying rate per *nt., without regard to the magnitude of the sum, will always be a i measure of it, because the responsibility increases in proportion ) ilie amount. It is consequently susceptible of a uniform measure. 966 PROCEEDINGS IN THE MASTER 8 OFFICE. which we thiuk may be reasonably put at two and a-half per ceni Not so the compensation of trouble. The settlement of a very lari estate may be the business of a few days, while that of a very sma one may occupy as many years ; and the compensation for all yond the responsibility, ought to be graduated to the circumstances I In that case a commission of five per cent., charged by thj executors of an estate of $350,000, was reduced to three, " the bulj of the property being readily convertible into cash and l»ut little ( it outstanding." In Harland'a accounts, 5 Rawle, 331," rather! than 5 per cent, for the management of a fund of $40,000 accumulate to $100,000, in twenty years, " was allowed in a gross sum compensate not only for labour expended, but for responsibility anJ expenses incurred in litigation," while in McFar/and's Estate, Barr, 149, the allowance was about the same, though on a much lesj estate, and the payment by administrators of $1000, and one-t of an apparently desperate claim at Washington as a contingent fel to agents, was sanctioned under the circumstances. Interest on commissions seems not to be allowed in general, An strong's Estate, 6 Watts, 286 ; nor in charging an accountant wit^ interest, are his commissions to be included and interest calculate upon them ; Callaghan v. Hall, 1 Serg. & Rawle, 241 ; and on thj other hand, where the estate has been increased by a charge of Id terest, the trustee, if allowed to claim commissions in that case, not entitled to charge. them upon the increase; Say v. Barnes, Serg. & Rawle, 116. , .; i. .. ,, It is well settled in Pennsylvania, as elsewhere, that one who ij both executor and trustee, is not entitled to double commissions, anJ that the number of executors or trustees make no difference in theil allowance ; Aston' s Estate, 4 Wharton, 241 ; SteveTison's Estate, h son's Eq. R. 19. • In case of questions arising between co-executors or trustees as t their respective shares of compensation, it was held in Stevensm] Estate, to be the proper course to prefer the charge as an entm claim. "We do not say," said King, P. J., 'that this Court woulj not under appropriate proceedings, settle such a question mo^ executors or other trustees. All that is meant to be said is, thai under a general reference to auditors to settle an administratia ■»— ;ti COMPENSATION ALLOWED TO EXECUTORS. 967 lecount, Huch auditors posRess no authority to apportion commissions jimoDgjoint accountants," but simply to decide what aggregate sum lihould be allowed as a whole. Although, in Massachusetts, the compensation to executors is now jgulated by statute, yet the principle was recognized in that com- I monwealth at an early day, and applied to all acting in a fiduciary capacity. It was said in Barrell v. Joy, 16 Mass. 229, "executors ire allowed a reasonable compensation, and there is no rea«on why trustees should not be, and it will probably be for the advantage of I ill who are concerned in estates held in trust, that such compensa- tion should be made. We know of no better rule to guide our dis- I cretion in this particular, than the usage which exists among mer- chants, factors and others, who undertake to manage the interests tnd concerns of others," and five per cent, upon the gross amount of the property, which had come into the hands of the trustee, was I allowed to him in that case. In Denny v. Allen, 1 Pick. 147 ; Long' ky\.Hall, 11 Id. 124; Ellis v. Ellis, 12 Id. 183, and Jenkins v Eldndge, 3 Story, 225, the general principle was recognized, and in Oibrni V. Crehore, 5 Pick. 161, extended to a mortagee in possession, to whom five per cent, was allowed for his trouble in collecting the renta. " ' ' , ' - ' . ' "i); hJenniison v. Hapgood,W Pick. 77, it was urged that the exe- cutor had by unfaithful administration forfeited all claim to compen- sation. Without directly deciding this question, the Court held, that "this consideration ought not to be blended with the claim for compensation, so far as the services of the appellee have been bene- ficial to the heirs ; " and the same view seems to have been taken by the Supreme Court of Vermont in the same case ; Hapgood v. Jen- nison, 2 Verm. 302. As to the manner of allowing compensation, though the practice seems to have been to allow it in commissions, yet it was held in Rathburn v, Colton, 15 Pick, 471, that there was no objection in principle or in the practice of the Court, to allow com- missions in connection with specific charges for services, provided the whole did not exceed a just compensation, in which case the Commissions were to be considered in lieu of all remaining services not specifically charged. But the Revised Statutes of Massachusetts of 1835, p. 436, intro- duced the same rule as to executors and administrators, as that ■^TT 968 PROCEEDINGS IN THE MASTERS OFFICE. * established by those of New York, allowing commissions at the m rates upon the amount of the personal estate collected and account for by them, and of the proceeds of real estate sold under order ( Court for the payment of debts, which they declared should received in full compensation of all ordinary services. There is tlij same provision for electing to renounce a legacy. The distinction between the duties of an executor and a trust( in reference to the subject of compensation, was shown with grea| clearness by Shaw, Ch. J. in Dixon & wife v. Homer et a/., 2 Meiil calf, 422 ; " There is not much analogy between the case of a trusu and that of an executor. The great duty of an executor or adrainii trator, is to collect the assets of the estate, and make distribution c the same. In doing this, he receives the money once, and diskn it once ; and his compensation is not fixed until he settles hii account of such receipts and disbursements, as far as they kvj been actually made. It is, then, a compensation for services actual! . done. ?v ;. . r\ • , ' • The case of a trustee is more analogous to that of a giiardii He takes the property, to preserve, manage, invest, reinvest, anij take the income of it, perhaps for a short period, perhaps for a lonj course of years, depending on various contingencies. It may bap pen, that the trust will terminate in a few days, by the death of tM trustee, or his resignation or removal, before any beneficial senna is performed. We think, therefore, that no allowance can justly I made, by way of commission, on assuming the trust. Au allowano of a reasonable commission on net income from real and personal estate — income received and accounted for — appears to be a suitablJ and proper mode of compensating trustees for the execution of theij trusts. Whether any allowance shall be made, in addition to i reasonable commission, for extra services, at the determination o| the trust and settlement of the account, or whenever accounts an settled during the continuance of the trust, must depend on th^ ' circumstances of each case, as they may then exist." This, it be seen, entirely coincides with the view taken in Penusylvaniij supra, page 965. In Maryland, the act of 1798 gave to the Court a discretion I vary the amount of executor's commissions between five and tenpeij T f71 COMPENSATION ALLOWED TO EXECUTORS. 969 ,t. on the amount of the inventoiy, excluding whatiwas lost or , and provided an additional allowance for such costs and traordinary expenses, not personal, as the Court might think ,per, This statute has been generally extended to trustees ; Ring- . Idy.Rbiggold, 1 Harris & Gill, 27; Nicholla y. Hodges, 1 Peters' . C. Rep. 565 ; but special rules of Court have regulated the com- issions to trustees fur tJce sale of real estates, a^class of fiduciaries lewhat analogous to receivers ; these are on the first $100 seven •cent; on the second, six per cent.; on the third, five; on the irth, four; on the fifth three and a half; on the sixth, the same ; the seventh and eighth, three; and on the ninth and tenth, two id a half ; and three per cent, on all above $3000, besides an lowance for expenses, not personal. This allowance to be increased cases of postponement at the requiest of defendants, or of extraor- ry difficulty and trouble, and to be lessened in case of negli- ince, &c., at the discretion of the Chancellor. This commission " is iven to him as a compensation for his trouble and risk in making e sale, bringing the money into Court, and paying it away in the anner directed, or in other words for the performance of all the ties specified in the decree, and the subsequent ordei's, in relation the sale and its proceeds;" Gibson's case, 1 Bland's Ch. l^?. ith respect to trustees ordinarily, though the Courts lean strongly inst per diem allowances, Ringgold v. Ringgold, 1 Harris & Gill, , the commissions seem rather liberal, and as a general rule, chan- 7, In that state, treats executors and trustees with indulgence ; V. Lockennan, 11 Gill & Johns. 185. In Eversjieldw. Evers- ', 4 Har. & Johns. 12, five per cent, was allowed ; but in Winter '. Diffemlerffer, 2 Bland's Ch. 207, where the management of the te was troublesome, ten per cent, was given ; and this was not ected by the trustee, having been charged with compound interest. le rule on this point was clearly explained in that case by Bland, ' in the following language : " The principal upon which a Court Chancery awards simple or compound interest to a party whose loney has been unjustly withheld or misapplied, is that of commuta- 've justice, considering the interest as a full compensation for the done, and as the proper or only remuneration which the ourt can award in such cases, and consequently to lessen or alto- ither to withhold from a trustee any allowance, to which he may jUBtly entitled upon the same ground, on which he had been with simple or compound interest, would be, in effect, to ' %„ ill' ''t^T ^ 970 PROCEEDINQS IN THE MASTER'S OFFICE. impose upon him a fine or forfeiture upon the principles of vindicth justice, and t« punish liiin for an otibnce, which the Court itwlfl declared, would Ixj sufficiently expiated by the payment of simple compound interest. The duties performed by a trustee, may haJ been so light, or may have Yhhhx performed in so negligent or unsk ful a manner as, on that ground, to entitle him to small ornocoij mission at all ; but to whatever compensation he may be entitk they certainly should not be lessened or altogether withlield, dntll ground of his having done, or omitted to do any thing, for whij the payment of simple or compound interest had been awardtj asj compensation because every single transaction must be considen by itself Recollecting, however, thpt a trustee cannot be allowej to retain or receive any thing as a compensation, until he has all he owes to the plaintiffs or cestui que trust." In Eidgebji Oittings, 2 Harr. &; Gill, 61, no compensation was given to one wh undertook the trust upon a promise to do so on payment of expenses merely. Nor are the Courts of Maryland unreasonable m burdening executor or trustee with duties, not strictly pertinent to his ofl In Lee v. Welsh, 6 Gill & Johns, 316, it was said, "An executor i finishing the crops of the deceased, is not bound to discharge duties of an overseer. To impose on him such a duty would virtually to exclude from that office most persons whose services | would be desirable to engage in that capacity. Suppose thede ed were the owner of many farms, and in different sections of state, on all of which valuable crops were growing, which it was I interest of the estate that the t \<^cutor should complete, is he boun should it be practicable, to ofHei&t ; as an ovei-seer on every fai Certainly not. No duties so vn reasonable are imposed on him the law. ,He may employ and pay out of the assets in his hands I many as are necessary for the completion and preservation of tH crops. If with more advantage to the estate he acts in the capaciij of an overseer himself, it is competent for the Orphans' Court allow him a reasonable compensation for his services." <•>- But an administrator who employed an agent to collect money f(| the estate, was not allowed credit for what he had paid him, agent being neither a public oflBcer nor an attorney, and no Iq process being in any way necessary : Owynn v. J)p^lBey> 4 Gill Johns. 453. COMPENSATION ALLOWED TO EXECUTORS. 971 In ca«e ^^ * partial administration by an executor, tlie Court, oniler the act of 1820 " in which the minimum rate of allowance is n)Osely omitted,") " have unquestioned power to allow such com- nsation a« the services actually merit. . . . they may give one r cent, and even less, if necessary. When there has been a full ministration, the Couit cannot dtscend below five per cent; " Mc- iirixyn v. Israel, 5 Gill & Johns. GO ; and the time of allowing the ponsation seems within the discretion of the Court. " Of course m hev would aim to make the commission allowed correspond with |lhe duties i)erfonned, and in passing every account would look to jibe advance made by the administrator ; " Oivynn v. Doraey, 4 Gill ; Johns. 4i53. In Virginia the Revised Statues of 1848 direct that the commis- Honer, in settling the accounts of any " fiduciary," (which includes ' every personal representative, guardian, executor or committee,") liball allow the reasonable expenses incurred by him as such, and lilso, except in cases in which it is otherwise provided, a reasonable Itompensation in the form of a commission on receipts or otherwise. JThis provision has been taken substantially from the prior acts of |l820 and 1825, and there were other earlier statutes. As a general Inile, except where a legacy is given to executors, or a specific sum lillowed in the creation of the trust, in which case commissions are Inot allowed in addition, (Jones v, Williams, 2 Call, 105,) it is held Ithat no more than five per cent, on the amount of the receipts can Ibe allowed, {Granherry, v. Granherry, 1 Washington, 246 ; Talia- j/crrov. Jl/inor, 2 Call, 197; Miller v. Beverleys, 4 Hen. & Munf. 1 420 ; Trijiert's Ex'rs v. Jameson, 2. Munf 242; HipMiisv. Bernard, jUd. 83:) and this also applies to commissioners who sell lands lander decree of court, {Lyons v. Byrd et al., 2 Hen. & Munf 22,) luid to a consignee, (Deanesv.Scriha, 2 Call, 416. But, said Tucker, U.'m Fitzgerald v. Jon£8, 1 Munf 156, "I very much incline to think, that where the management of an estate is thrown upon an executor, and the care and education of a family of children with it that an executor ought to have more liberal allowance than a bare commission of five per cent, upon his receipts or expenditures. In the present instance, the testator left five children apparently mi- nors, who remainded so many years. He charged his whole estate 1 with the payment of his daughters' legacies, if it could be effected wt of the profits before either of them married or came of age. To IP m 972 PROCEEDINGS IN THE MASTER S OFFICE. t • Ic 5: do this, the executor must do many things ueyoL 1 what the doj of an executor, in ordinary cases, imposes. His personal trouble j responsibility under such circumstances may be increased ten foil He ought to be compensated accordingly, whenever it appears tli he has faithfully discharged the extraordinary duty imposed up him by his testator." In this case a gross charge of £75 a year managing plantations fifty miles off, was struck out, and an additid of two and a half per cent, allowed to the usual commission of ^ per cent. Where estates have been large and very troublesome per cent, has been allowed in full for commissions, and the expea of employing clerks and agents, {M'Call v. Peachy'a Adm'r, 3 Mu 306,) and sometimes five per. cent, in addition to those expcji* (HipJdns V. Bernard, 4 Id. 93 ; Farnehough's Ex'rs v. Dickerson ( al, 2 Robinson, 589;) and in Kee v. Kee, 2 Grat. 132, five percen was said to be the customary commission. So ten per cent. been allowed where the debts were small and numerous, and tli debtors presumed to be much dispersed. Cavendish v. Fleming] Munf 201. But where debtors resided near the executor, he not allowed commissions to attorneys for collection, in the of evidence that it was attended with difliculty. Carter's £r't| v. Cutting S Wife, 5 Munf. 241 ; and in Skejypard v. Stark, Munf. 29, five per cent was given in lieu of all expenses ; but ingcD eral, the.-e, (Lindsey v. Howerton, 2 Hen. & Munf. 9,) and " all sonable charges and disbursements," are allowed. Nimmo's Ex'i V. The Commonwealth, 4 Hen. & Munf. 57. Although mHij. V. Bernard, 2 Hen. & Munf. 21, an executor was held not entitle to charge commissions for turning certain bonds into mortgages yel in the same case, (4 Munf 83,) this was overruled and the com] missions allowed. But no commissions can be charged on a deb due by the executor to the estate ; {Farnehough's Ex'r v. Dichern e. al., 2 Rob. 589 ;) and notwithstanding that compensation is in manner secured by statute, it seems to be held, that its allowancej nevertheless, depends upon the bona fides of the fiduciary. Bo v. Boyd,^ Grattan, 125. Originally, the rule in North Carolina as to executors, was by force of the common law, and the act of 1789, a very strict one Schaw v. Schaw, 1 Taylor, 125. But it was altered in 1799, by an 1 whose provisions were substantially the same as those of the Revi* Statutes of 1836-7, (Ch. 46, § -29,) which direct that courts shiiil COMPENSATION ALLOWED TO EXECUTORS. 973 e into consideration the trouble and time expended by executors the management of the estate, and make an allowance not exceed- five per cent, for the amount of the receipts and expenditures ich shall appear to have been fairly made: which amount they ij retain as well against creditors as legatees and distributees, ther with the necessary charges and disbursements lieretofore wed. These provisions are applied also to guardians. Hodge Hawkins, 1 Dev. & Bat. 567. " The Court has the power," it said in Bond v. Turner, 2 Taylor, 125, in speaking of the act 799, " of allowing five per cent, commission on the receipts, and same on the disbursements. It has a discretionary power to low less, but not more than five per cent. ; " and where executors, ler an arrangement with a guardian, transferred to him bonds, of collecting their proceeds, the commissions were reduced two and a half per cent. Walton v. Avery, 2 Dev. &; 405. These commissions are not forfeited by ^he executor charged with compound interest, (Peyton v. Smith, 2 Dev. & 325,) or having made resistance to just claims ; Thompson v. ^'Donald, 2 Id. 481. Besides these commissions, executors are lowed their actual expenses in the faithful discharge of their duty, ih as those of attending necessary sales, of sending an agent out th state, (Whittedv. Wehh, 2 Dev. & Bat. 442,) counsel fees, V. Hester, 3 Iredell's Eq., 9,) &c. As to the correction, in a urt of equity, of commissions allowed by masters or county courts, Thmipson v. M' Donald ; Graham v. Davidson, 2 Dev, & Bat. 155; Walton v. Avery, Id. 405; Whitted v. Webb, Id. 433. In ^iMer V. Stone, 2 Hawks, 31, a case overruled on another point by 'parte Houghton, 3 Dev. 441, it was said, "for the sake of future I, we think it right to add, that payments made to distributees account of their portions, whether before the administration is ittled or at the close of it, cannot be considered as expenditures, id therefore no allowance of commissions can be made on them." le apportionment of commissions among two or more, is always ted by the circumstances of the case. " The fact of a joint ncy does not give the "''^ht to one-half the value of the entire irvices." Hodge \. Hawkins, 1 Dev. & Bat. 567. , 1 :*> Up to the year 1833, it seems by the case of Boyd v. Hawkins, 2 «v. Eq. R. 211, that the extension of these rules to trustees had not I formally recognized from the bench; on the contrary, it was .k.- 974 PROCEEDINGS IN THE MASTER'S OFFICE. ^ there said, "the farthest we can go, is to permit a stipulation fj compensation at the contracting of the relation." But on a rehe ing of that case, 2 Dev. Eq. 334, it was said by Ruffin, J., " We informed that it has been usual in some parts of this state fJ trustees to charge for services, and that the profession have decided opinion against it. The amount will of courae be accordin to the circumstances, and not beyond that which would, under statutes, be made to executors ; and if fixed by the parties, it wij be subject to the revision of the court, and be reduced to what fair, or altogether denied, if the stipulation for it has been coep by the creditor as the price of indulgence, or as a cover to interest, or the conduct of the trustee has been mala fide and iij jurious to the cestui que trust. Whether it shall be given as a con mission or not, is hardly worth disputing about ; that may be a coil venient mode of computing in most cases, but the true object is just allowance for time, labour, services and expenses, under all I circumstances that may be shown before a master." And in tH recent cases of Sherill v. Shuford, 6 Iredell's Eq. 228, and iiai/oi V. Raiford, Id. 495, this was approved. The distinction betwe the allowance to executors and to ti-ustees, is that to the latter it i matter of grace, and will be forfeited at the court's discretion, wliij to the former it is a matter of right, which no misconduct can foij feit. ■•.■;-,..■. M,f .■ .-;. .-.' . : ■> .-■■ ^; .■»,'v/i. Under the statutes of South Carolina the Courts in that Stat^ seem to have felt themselves little authorised to exercise a disc;*;tic of their own. The act of 1789, allowed to executors and admin trators a sum not exceeding 50 shillings for every hundred pound they should pay away in credits, debts, legacies or otherwise, duri the continuance of their administration, which commissions were be divided between them in proportion to the services by thed respectively performed , and they were also allowed 20 shillings fd every ten pounds " for all sums arising by moneys let out at inteij est " ; Act of 3rd of March, 1789. These provisions were take from the seventh section of a prior statute passed in 1745, whid act further declared that any executor who should have had extn ordinary trouble in the management of the estate, and should no] be satisfied with the sums thus allowed, should be at liberty to bn an action for services, in which however, the verdict was to limited to five per cent, over and above the sums before mentionei This section was not repealed or supplied, by the act of 1789. COMPENSATION ALLOWED TO EXECUTORS. 976 The allowance thus given has uniformly been held to cover all expenses which are sometimes termed j)er807ial\ Logan v. jfl,, 1 M'Cord, Ch. 5. Thus the Courts have felt themselves ond to strike out any charge for travelling expenses, &c., and have ^erred the parties claiming them to the action at law prescribed f the statute ; Snow v. Gollum, 1 Dessaus. 542 ; and although in \if\. The executors of SumTners, 3 Id. 329, Dessausure, Ch. said, lit has always appeared to me that the ground for compensation to iecutors being made by law, to rest solely on the foundation of oney received and paid away, is not a perfectly reasonable rule, auch as there is often great service performed by executors, here only small sums of money are received, and paid away," yet [was nevertheless held, that the action given to executors, covered leases, and was their only remedy. In. the subsequent case of nan v. Logan, 1 M'Cord Ch, R. 1, it was said by Nott, J., " I have I doubt, but an executor might be allowed by a Court of law, and by a Court of Equity, to retain money alio .ved to agents or ountants, for adjusting difficult and complicated accounts of the ite. But I should not think him entitled either in law or equity, I retain for money paid an accountant, for settling and adjusting iown accounts." " There is a distinction " said Johnson, J., in ttagu V. Dendy, 2 M'Cord, Ch. 213, " between those services for rhich a compensation is allowed by the statute, and the expenses iicurred in the course of the a«lministration. The former referred I those duties which an administrator is supposed to undertake, nd the latter, to such as require the aid of professional skill, to |rhich he is not supposed to be competent. The conduct and ar- ement of a law-suit, is an illustration of the latter." But coun- »1 fees are not allowed when paid to sustain the position of the xecutor against those beneficially interested. Villard v. RoheH, 1 ptrobh. Eq. 393 ; WJiam v. Love, Rice's Eq. 51. Charges for over- era' wages may properly be classed among those not personal, pnce their employment is in general, directly for the benefit of the ate, and in most cases absolutely necessary, and a guardian will ! reimbursed for the expense of employing agents out of the state, ilthough not obliged to do so ; Huson v. Wallace, 1 Rich. Eq. 18 ; lit an executor was not allowed to charge commissions, and to lit himself besides, with overseer's wages, when he himself had ■formed overseer's work. Jenkins v. Fickling, 4 Dess. 470. ' - r !. 976 PROCEEDINaS IN THE MASTER'S OFFICE. In Deas v. Span, Harper's Eq. R. 276, and Gist v. GiM, 2 McConl'j Ch, R. 474, the statutes received a libeml construction as to th allowance of commissions on the amount of bonds taken for tb purchase money of real estate ; so where the executor purchased th estate himself, Vance y. Oary, Rice's Eq. 2; though in Ball v. hvm Bailey's Eq. R. 374, they were denied on the proceeds of land sold under decree in chancery for the foreclosure of a mortgage, on th ground that the money was neither " received " nor " paid awayj by the executors ; and in Huson v. M' allace, 1 Rich. Eq. 2, when an administrator was compelled to account, at the advanced prio for property of the estate which he had bought at an undervalue, was denied commissions on the advance. ' '• ' '' The act of 1789, further provided, that an executor should annual accounts ; and a neglect so to do forfeited all compensatioDi This provision was held not to be retrospective, so as to preclude i executor from commissions, where for several years prior to its ] sage he had filed no accounts ; Assignees of Ramsey v. Ellis, 3 De 78; and although a substantial compliance with this part of the i is always insisted on, {Wright v. Wright, 2 M'Cord's Ch. 196;) ye in certain cases the lapse of a few months over the time of filii the last account has been sanctioned ; Jenkins v. FicMimj 4 The allowance of ten per cent. " for all sums arising by moned put out at interest," was held in Tavaux v. Ball, 1 M'Cord's 458, to be " evidently intended as compensation for the trouble i managing the fund while in the hand of the executor, and the tw^ and a half per cent, for paying away, refers to the final dispositioa of it ; or in other words, to that point of time when the executor'^ power over it ceases, or when he has disposed of it in the mann directed by the will of the testator. It cannot without great inju tice be referred to any other time, for if it was to be allowed fo| every application, or appropriation, the executor might, by lettia out and calling in at short periods, make his commissions exceei any profits which could be expected to arise by way of inter The mode of determining what time he is to be credited with it i by inquiring whether he has made a final disposition of the tunij The same compensation is also allowed when, instead of investi the money in other hands, the executor in good faith suffers it I ^ ."1 COMPENSATION ALLOWED TO EXECUTORS. 977 imulate in his own, but when decreed to pay it over at the end liis administration, no percentage is then allowed : Wiight v. fright, 2 M'Cord's Ch, 196. These rules have been applied to stees and receivers ; BoTia v. Davant, Riley's Ch. Cas. 44 ; unless ihere they had exprassly agreed to act without commissions ; Vestry Wardens v. Barksdale, 1 Strob. Eq. 197 ; but not to commis- oners in equity, whose compensation, regulated by a fee bill, the ourt has no power to enlarge or modify ; Bona v. Davant In Vermont the Revised Statues of 1839 allow to executors all Lecessary expenses in the care, management and settlement of the state, and for their services such fees as the law provides, with a: ailar provision to that in New York, as to renunciation of any pensation allowed by the will ; R. S. Ch. 50, § 10. From the of Evarts v. Mason, 11 Vermont, 122, it would seem that a i liberal provision was customary in that state for travelling enses, loss of time while absent, counsel fees, &c., though a gross arge of $300 for services, in addition to all these expenses, was duced one half In New Hampshire, the court in the case of Gordon v. West, 8 NeW" Dpshire, 444, disallowed commissions on the value of specific tides given over, or retained by the executor, in pursuance of the ill " Here, there is no ground for a charge of commissions, which 1 sometimes a proper charge for the risk and trouble of receiving, ling and paying over moneys." He was, however, allowed two and ji half per cent, commission on the principal of the moneys actually lollected, the duties of a trustee being superadded to those of an kecutor ; and something like a rule seems to have been intended to I laid down for future cases : " We are further of opinion," said farker, J., " that in ordinary cases of a trust, five per cent, annually, ! as great an interest as should be exacted of a trustee ; or in other ifords, when the trustee accounts for six per cent, annually, one per «nt. is a proper compensation to be allowed for the care and custody the funds, and for collecting the income." This one per cent. fould seem to be one per cent, on the principal, a much larger allow- Qce than that in other states, being over fifteen per cent, on the Dcome. In New Jerse} , the Revised Statues of 1845 declare, in the words f prior acts passed in 1834 and 1820, that the allowance to execu- 38 ■I i 978 PROCEEDINGS IN THE MASTER'S OFFICE. ^ tors, administrators, guardians, or trustees, shall be made vitl reference to the actual pains, trouble, and risk in settling the estat< rather than in respect to the quantum of estciie ; R. S. tit. vii. ch. § 26 ; and although trustees, of whatever name, have thus alwav been allowed "an adequate compensation," Voorheea v. Stootlmj^i Hals. 149 ; yet its amount seems to be little regulated. " There ij nothing connected with judicial proceedings," said Dayton, J.,i Mathis V. Mathis, 3 Harrison, 67, "about which there is great* uncertainty than the subject of commissions. No accountant guess what he will receive, no person interested imagine what he 1 to pay. This want of some standard to regulate judicial discretioJ is a most serious grievance." In that case the court refused, on cerj tiorari, to reverse, when fifteen per cent, had been allowed belon but the ^ "vision was based rather on the ground that this was i matte-' Lc '*''>tion with the court below, and could not be reviews on ceitxoid,!!, v/hich was expressly held in the recent case of (S'fft-efl 8071 V, Phillips, 1 Zabriskie, 71. This charge it would seem, howeveJ included all ^ pei^. ,..>, as in the recent case of Lloyd v. Rowe, Spence^ 685, it was said, ' commissions in this state include not only allowance for the personal services of the executor, but also, ordin ily the expenses to which he has been subjected." Some genen expressions in the New Jersey reports, " that the rule is a fixed mi that trustees shall make no gain, or profit from their trust ;" Tm ton Banking Co. v. Woodruff et al., 1 Green's Cli. 126, apply toj different branch of the subject, that of purchasing the trust estati &c. >■! The English rule has found a resting place in Delaware. In thj recent case Egbert v. BrooJcs, 3 Harrington, 110, the Chancellor d^ clared that he would have made the trustee some allowance iortii and trouble, if he had not considered himself bound by the rule ( equity that as a voluntary trustee without stipulation for con pensation, he was not to be allowed compensation. The decree ( the chancellor was affirmed by the court, who added, "the trustee I entitled to have aU his expenses and charges paid — to be indemnifiej against expense and loss, but not remunerated ; " and the principles were stated in The State v. Piatt & Rogers, 4 Harr. 16 In Kentucky soiao reluctance seems to have been felt at from the English rule. " The doctrine is incontrovertibly settli ^^^^ COMPENSATION ALLOWED TO EXECUTORS. 979 [was said in Breckenridge v. Brooks, 2 A. K. Mai-shal], 339, "that rbere a mortgagee, or other trustee, manages the estate himself, there I no allowanc e to be made for his trouble." So in McMullen v. Scott, Monroe, 151, it was held that a stipulation by a trustee for the lymtnt of his expenses, (though he would have been entitled to hese without any such stipulation,) excluded any claim for personal ervices. With respect to the executors, this strictness was altered hy statute, 1 Morehead & Brown's Dig. 668, which gave to them heir reasonable charges and disbursements expended in the funeral f the deceased, and other their administration ; and in extraordinary s, such recompense for their personal trouble as the court should lieem reasonable. In Logan's Administrator v. Troutman, 3 A. K. arshall, 67, an allowance of five per cent, was said to be, " no more according to the rules of law and the universal custom of the untry, it was proper to allow." This per centage was recognised Rarasey v. Ramsey, 4 Monroe, 152 ; Wood v. Lee, 5 Monroe 66 ; ii^racken v. McGroAjken, 6 Monroe, 342 ; Webb v. Webb, 6 Monroe |l67 ; though in Wood v. Lee, it was added, " in some cases seven and , half, and in others ten per cent, has been allowed. But a gross in other cases has been allowed, without regard to any per Qtum, and in other a daily allowance, or special charge has been [;" br.i m Bowling v. Cobb, 6 B. Monroe, 358, a charge of seven er cent upon receipts, and the same on the payments, was said to I excessive and unusual. A liberal spirit seems to have been shown owards the allowances of expenses, such as hire of slaves ; Floyd v. yd, 7 B. Monroe, 292 ; counsel fees, &;c. ; Bowling v. Cobb. '■- In the case of Hite v. Hite, 1 B. Monroe, 179, it would seem that hese principles had not been extended to trustees, as " the general lie that a trustee is not entitled to compensation for personal lervices in managing trust funds," is quoted, though it is admitted |that there are exceptions to this rule in modem adjudications. But the very recent case of Lane v. Coleman, 8 B. Monroe, 571, the Supreme Court seemed willing to follow the weight of American Authority, as one acting as agent under an instrument which directed to pay from the proceeds of certain law suits, " all costs and [expenses, including attorney's fees, and was "in effect a deed of st," was held entitled to " a fair compensation for his services." In Tennessee, the Acts of 1715, and 1789, allowed an executor to I [ w^ ^ 980 PROCEEDINGS TN THE MASTERS OFFICE. retain no more than his necesaary charges and disbursements, anj the construction put upon these statutes was very strict. Althou? the' reasonable costs of bringing or defending necessajy suits wen allowed, yet no travelling expenses were given, or compensatioi made for lost time ; Stephenson v. Stephenson, 3 Hayw. 123| Bryant v. Puckett, id. 2>5 ; StepJienson v. Yandle, 5 Id. 261; the Act of 27 Jan. 1838, taken, in substance, from one passed in 182 allows to executors, administrators, and guardians, " a reasonablj compensation for their services," > . In Alabama, the compensation to all acting in a fiduciary capacity has formed a part of the common law of that state ; Spence v. Wm aker, 3 Porter, 327: Phillips v. Thompson, 9 Porter, 667 ; Beatkay M'Goll, 5 Ala. 315 ; Carrol v. Moore, 7 Ala. 617 ; Benford v. Danidt 13 Id. 67b ; as was thus stated by Goldthwaite, J. in Harris v.Mmtk 7 Ala. 899, " It is the usual and common practice to allow executon administrators and guardians, a per centage upon the amount of thj receipts and disbursements, as a compensation for the performano of the trust. This per centage has never been fixed by statute, i until some specific rule is declared upon the subject, it is evidea each case must be governed by its peculiar circumstances. Itij apparent, however, the quantum of trouble, and lojss of time, is nd the only matter to be considered, as the settlement of an estate ( $500 may involve as much diflSculty as one of $50,000. Till compensation must also, to a great extent, be controlled by th amount of the estate." But while it is admitted that the Engiisl rule has never prevailed, it is said that these allowances " scrutinized with jealous watchfulness." Harris v. Martin. All though it is held that the power of the court to compensate by a{ diem allowance is unquestioned, Marshall v. Holloway, 2 Stew* 453, yet they lean strongly against such a mode of comj Magee v. Cowperthwait, 10 Ala. 968. So as 'to specific charges j while the right to allow them is recognised, "such charges perhaps the exception, and not the rule, and they should never I allowed for the ordinary duties of an administrator;" O'Bd Donnell, 9 Ala. 738. See as to compensation to a bank Alaha/ma Bank v. Collins, 7 Ala. 102. The compensation being rather matter of grace than of right, dej pends entirely upon the bona fides of the trustee; O'Neill v.i^fl 71 COMPENSATION ALLOWED TO EXECUTORS. 981 gh it is not withheld, except in case of " wilful default or gross igence ;" Powell v. Powell, 10 Ala. 914. In Doneldaon v. Pusey, " , 752, an attempt was made to set aside a voluntary deed of it, because, among other grounds, it allowed to the trustee a imission of 12^ per cent. ; but while the court said that the immission was greater than that usually allowed, yet that the istee had " to collect many, and perhaps small accounts, his duties [braced a settlement of the afiaii's of a dissipated and reckless man, hose business was doubtless confused, and difficult to arrange." By the act of 1841, when by will, an estate is directed not to be lold, but kept together for distribution at a future day, the court has over to allow in lieu of commissions, such annual compensations } shall be reasonable, regard being had to the amount of labour per- bnned, the responsibility involved, and the value of the estate. The Mississippi statute. Hutch. & How. Dig. p. 414, § 96 like that Maryland allows to executors such compensation as shall be sonable and just, not less than five, nor exceeding ten per cent, of he amount of the appraised value : and this does not mean solely on he amount of the inventory, but on the whole estate, Merrill v. )lme, 7 Howard, Mis. 292, including the real estate, when its pro- ds pass through their hands ; and the allowance is made only on he final settlement ; Shurtleff v, Witherapoon, 1 Smedes & arahall, 622. In Missouri, the statute §16 of art. 6, of Ex'ors and Adm'rs, allows 1 amount not exceeding 6 per cent, on the whole amount of personal ate and money arising from the sale of land, but the compensation I sometimes awarded in a gross sum ; Fisher v. Smart, 7 Missouri, ^81. Although, in some states, the principle of compensating those ting in fiduciary capacities, does not, as yet seem to have been ipplied, further than in the case of executors and administrators, yet 'i will sufficiently appear from observing its rapid extension, that as I the principle itself, there will soon be little difierence of deter- tttion. Some of the rules which appear from the above cases to I of general application, in the absence of statutory provisions to a ontrary effect, are that one who undertakes to assume a trust with lie understanding, express or implied, that its duties are to be ! *, 982 PKOCEEDINGS IN THE MASTER'S OFFICE. performed without compensation, shall not be allowed afterwards i claim it ; that the compensation is to be for labour and risk actuallJ incurred, and, therefore not to be claimed on assuming the trugtl that double compensation is not given, when the fiduciary occupia a double position with regard to the same subject-matter ; that compensation is not be increased in proportion to the number ( trustees, and that the cost of professional service is not allowed fJ protection and defence against the rights of those beneficiallj interested. s: In our Court, the first discussion on our statute arose in MeLtn nam v. Reward} In that case, where the agent, after the decea of the principal, intestate, had procured letters of administratioi to his estate, and subsequently the person who became po68es» of the assets as the personal representative of the administrate refused to account, and a bill was filed to enforce it, the Cou under the circumstances, there being no evidence of any impropej dealing with the estate, either by the administrator or those rep resenting him, allowed the defendants a commission of five cent, on all moneys received and paid over, or properly expende by themselves or their testator, and two-and-a-half per cent, on i moneys received by him or them, but not yet paid over, hut rej fused them the costs of the suit. This Court will not refer it the Surrogate Judge to settle the amount of compensation or con mission to be allowed to an administrator or executor : but havinl possession of the subject matter of litigation, will finally disposj of the rights of all parties. Five percent, commission on moneys passing through the hani of executors may or may not be an adequate compensation, or maj be too much, according to circumstances ; but in no case will executor be entitled to an allowance for services performed by i agent and which were so performed by him gratuitously.^ Mortgages reserving six per cent interest were taken hy tees before the abolition of the usury laws, and were not called for several years after the change of the law, but as it did not a{ pear they were aware of an opportunity of investing at a 1 9 Grant 270. 2 CAif AoItM V. Barnard, 10 Grant 479. COMPENSATION ALLOWED TO EXECUTORS. 983 ,te, the Court refused to charge them with more than was re- ed by the mortgages. Where a suit for the administration of estate is pending in this Court, it is improper for the Surrogate mlge to interfere by ordering the allowance of a commission to stees or executors.^ Where the executor has power under a ill to sell real estate for the payment of debts and legacies, and ere was available in money more than enough to pay the debts, e Court, considering a suit for administration unnecessary, re- the executor the costs, and also his commission.' The old liole as to the compensation of tru, 'ees has been abrogated by the ISorrogate Act only so far as relates to trusts under wills.' Since e passing of the Act authorizing the Judge of the Surrogate IConrt to allow compensation to executors and trustees, 22 Vie. c. , sec. 47 ; Con. Stat. U. C, ch. 15, sec. 66, it has been the set- led practice of the Master here, in passing the accounts of execu- 18, to allow them compensation for their ** care, pains, trouble, id time expended in and about the executorship," without an der from the Surrogate Judge allowing the same. Where, there- ire, an executor, pending an account before the Master, obtained ch an order from the Surrogate Judge, and the Master allowed e amount of Cv)mpensation mentioned therein without exercising is own judgment as to its propriety or reasonableness, an appeal in that ground from the report of the Master by the creditors of e estate was allowed, and the executors ordered to pay the costs lereof.* Where the estate to be administered was large, requir- g great care, judgment, and circumspection in its management [or a number of years, the Court sustained an allowance of $1500 the principal executor and trustee, and $1500 to the others ointly. Where a legacy is given to executors as a compensation ir their trouble, they are at liberty to claim a further sum under he statute, if the legacy is not a suflBcient compensation.* A mmission should not, in general, be allowed to an executor or a trustee in respect of sums which he did not receive, but is charged [with on the ground of wilful default. The rule of the Court is to !ow compensation to trustees of real estate under a will as well to executors.* The rate of compensation to executors or trus- lComnm(yoo<, 15 Grant 103. J flWO' ▼. iMctwm, 15 Grant 233. 5 5«nii«i v. iJenwon. 17 Grant 806. •««T.r»omiwon, 17 Grant 164. # '^ ■ij ■ I T -fTTT; s: 984 PROCEEDINGS IN THE MASTER'S OFFICE. tees should depend upon the amount of money passing tlirouj their hands, and the care, time, and labour spent by them in \ management of the estate. Where, therefore, the amounts ceived and expended by the executors were large, and it did nj appear that there was any special difficulty or trouble in the mi agement of the estate, and the Master had allowed the executorsi commission of five per cent, on all moneys received and exp by them, and half that amount on the moneys received bu. „, expended, an appeal from the Master's report on the ground off cessive allowance was allowed. A testator authorized his execati in their discretion to continue the business of lumberer, millej and merchant, which he had been carrying on, and which th elected to do, and carried on such business for some years thron an agent, one of the executors visiting the place occasionally supervise the business generally: Held, that a commission on til moneys received from this source was not a proper mode of con pensating the executors, but that they were entitled to be compel sated therefor, and that not illiberally.^ The cases in which tl( Court will give or refuse costs to trustees, executors, or adr trators will be considered under the general head of " Cost? The Master having made the allowance for compensation, pr( ceeds to settle his report in the manner already pointed out. proceedings on signing are similar to those in other cases, i when the report is given out, his duties as to it are complet* Order 589 declares that ** In administration suits, reports are.i far as possible, to be in the form given in the schedule hereto." 1 rAompnm v. Freeman, 16 Grant 884. I "J. i; zr V < . . ., ■■■:■_ . '■ ..:■' ■ . . ■ •' i, .:i . >■'•' '^l' '^ii^: ■ '■■■■ ;>.•'■■ -.i-'r PROCEEDINGS IN MORTQAOE SUITS. 985 H'.V ..M 11;: •* :t i •i«;. ;t CHAPTER XXIX. tfl ».' I • i! '. 1 Section I. — Proceedings in Mortgage Stiita, • ■• ( The practice in a siiit for redemption, foreclosure or sale varies iwidely from that adopted in England, that we must depend for onnation chiefly on the orders and decisions of our own Court. before proceeding to the practice ir* ae Master's ollice, a kef notice of the general law relating to Mori-gageB will be nec- liion is an equitable process by which a mortgagor, or her person interested in real or personal property subject to a ■tgage or incumbrance, may recover or get the absolute owner- lip thereof, upon certain terms ; which are commoi ly the pay- ot of the principal sum due, with interest thereon, and the its of the mortgagee. I Foreclosure is (as to redemption) the converse, and generally the iiprocaP remedy, whereby the mortgagee, or other person enti- 1 to the benefit of a mortgage or incumbrance, may acquire an olute title to the incumbered property upon nonpayment, by I person entitled to redeem, of the amount secured thereon, in- nding interest and costs. Wherever there is a right to foreclose, fcere must of necessity be a right to redeem, because foreclosure jinde&nltof redemption; and every decree to foreclose limits |tiiue within which the estate may be redeemed. And the non- icise of this right to redeem is commonly,^ but not necessarily, llowed by foreclosure. I In certain cases in whioh foreclosure would be inequitable or in- DTenient, or at the request of one or more of the parties inter- 1, where the Court of Chancery thinks, fit to exercise its statu- |iy power,^ a sale of the estate and distribution of the proceeds 1 be decreed instead of foreclosure. •. ' : - r^' , I^*»-*«»«»,1Vm.403. I ifv ,2^ '■• '^'W'rtw. 3 Sw. 636. per Lord Nottingham. F 15 4 16 Vict c. 86, 8. 4& m ''^•'i ■t>.- ' 986 PBOCEEPINQS IN THE MASTERS OFFICE. f! i$ i '* I. *^^' : The right or equity of redemption has been described sometime as an estate,^ and sometimes as an interest,' or equitable richj inherent' in the land ; and though strictly equitable, and capal of being enforced in equity alone, it is of so much consequence the eye of the law, that the law takes notice of it, and makes ij assignable and devisable.^ Like the estate itself, it passes bj transfer and devise : may be impressed with, and then becomf subject to, the ordinary consequence of entails and other limita] tions : devolves, according to the tenure of the actual estate, npon the real or personal representatives of the owner : and is snbjec to gavelkind, borough English, and other customs which affect thj ordinary legal ownership.* : i! i !:l" >)(!■ The existence of a right of redemption does not necessarily del pend upon any distinct agreement, but may be inferred from thj nature of the transaction. It arises where property, or the evi] dence of property, have been transferred as a security for the payj ment of money, or have come to the hands of a person subject u condition to the like effect ; and where the nature of tl . action is doubtful, the intention of the parties may sometiiL^ oi shown by extrinsic evidence, or may be ascertained by a jury/* under an issue directed by the Court of Chancery. ■ It will be observed, that the statutory right to order a sale ol mortgaged premises is referred to. The powers conferred on thJ English Court by that statute are vested in our Court by sec. 10 ol 22 Vic. c. 12,' which enacts that it shall have " generally, tlid like jurisdiction and power as the Court of Chancery in England possessed on the 10th June, 1857, as a Court of Equity to admin] ister justice in all cases in which there exists no adequate remedi at law." The Imperial Statute was passed in the session of 1852-3| and some of its provisions have been embodied in our Orders. : The simplest form of redeemable contract is the common leg mortgage, by which real or personal property is conveyed by thj moi-tgagor to the mortgagee, as a pledge or security for the debt! 1 Caihome v. Sear/e, 1 Atk. 608. 2 Lloyd V. Lander, 5 Mad. 290. 8 Per Hale, C. B., In Pawlett v. A.O., Bardret, *i6, 469. 4 Fawcettv. Lotcther, 2 Ves. 304 ; Blake v. Foste' 2 Ba. ft Be. 387 6 Wynne v. Styan, 2 Ph. 303. 6 Con. Stat. U. C pagr 51. /•^v^ PROCEEDINGS IN MORTGAGE SUITS. 087 the conveyance being absolute in form, but subject to a proviso, by fhieh it is to become void, or by which the pledge is to be recon- ed, upon repayment to the grantee of the principal sum secured fith interest on a certain day, which is usually fixed at the end of year or let,s from the date of the security. Upon the nonper- fonnance of this condition, the mortgagee's estate becomes abso- ftte at law, but remains redeemable in equity during a period iiniited by statute, and under the rules imposed by Courts of Equity. There are, besides, other forms of legal mortgage, now but little sed; but to which it will be proper to refer. One of these is the [Welsh mortgage, by which the estate is conveyed absolutely to the Icreditor, without condition ; the rents and profits being enjoyed by 1 in lieu of int« rest. This kind of security differs greatly in jiisconBequencfc,, .iS well as in form, from the common mortgage ; lause it carries a right to redeem, but none to foreclose ; for be- ; without condition, there can be no forfeiture,^ and it is after Iforfeiture that the mortgagor's right is barred by foreclosure.* [The possession of the mortgagee is of the very essence of the sh mortgage, and every receipt of rent is a receipt, by virtue lof the contract, of so much interest. Hence, a Welsh mortgage Ifas held to be redeemable under the old law of limitation, until Itbe lapse of twenty years from the time when the mortgage was jfiilly satisfied;' and in this particular, it seems that the modern Statute of Limitations (3 & 4 Will. 4, c. 27) has made no differ- ence. »M A form of security, called a Bristol bargain, is also noticed in [the older Reports. In it, the bargain was for repayment of the Idebt and interest by instalments, at the rate of 20/. per annum for heven years for every 1001. advanced ; up to which point it was Jiliowed, the legal rate of interest being then Ql. per cent. But Iwhen it was attempted to increase the number of annual instal- InentB to eigh^, it was declared that the agreement was against |eon8cience, and ibat, if allowed, it might be carried on without J &«V« ▼. Lord, 2 Dru. k War. 480. ■ y* *"*«»» V. ffeteeomb, 1 Vem. 282. This langruage does not seem quite correct, becauM an eaidta* !!• """jwee may often foreclose, though there be no actual forfeiture, and even no condition, l(w,ai5.) But this is by analosry ; the equitable mortrairee being entitled to call for and to have the I Mieremedy u U he had obtained a leijal mortpraffe. 9 rtUti V. Hambly, 2 Atk. 863 ; Longuet v. Soamn, 1 Yes. 408 ; Fenvrick r. Reed, 1 Mer, 125. 988 PROCEBDINQS IN THE MASTERS OFFICE. ■1 ^Bi: ir s: ;,if stint or bounds ;^ and redemption was decreed on the usual ter of paying principal and interest. And it was said by Sir Joh Trevor, M. R., that he thought the Court would relieve against ordinary Bristol bargain, viz., by the repayment by instalments fj seven years.' ., - - But since the repeal of the usury laws, it is probable that tli courts would not interfere in such a matter, provided the transaj tion were not fraudulent. The absence in a common mortgage of the covenant for paj ment of the debt, does not of itself affect the mortgage characi of the transaction ; but it has been thought to ))e material whe the instrument, not being a common mortgage, the absence of tl| covenant may be explanatory of the intention of the partiei Thus, in the case of a lease by the mortgagee to the mortgagor fi| a long term, at a rent, with a proviso for re-conveyance if th mortgage money and interest was paid within three years, the al| sence of a covenant for repayment of the mortgage money held to shew that after the three years the interest was to he inJ deemable, and that the intention was to purchase the interest alj solutely by way of rent-charge ; and the transaction being fair, an different from an attempt to fetter the redemption in the la itself, was upheld. ' So a conveyance by a debtor to a trnste the creditor being a party, in trust out of the annual proceeds pay head rent and insurance premiums, and to pay creditors thej principal and interest by instalments, and then to re-convey, an which contained no covenant for payment by the debtor was held] not to be a mortgage entitling the creditors to foreclosure or i though, if there had been such a covenant, the decision wou probably have been otherwise. / And while the courts protect the bona fide purchaser again^ stale demands, or other pretence that only a mortgage was inte ded, they also take care that a borrower shall not suffer from omission in a deed or agreement, of the usual requisites ofj mortgage, if those requisites have been omitted by positive fraud 1 Jamn v. Oadet, 8 Vern. 462. . 8 PuUhrope v. FoiUr, 1 Vera. 4jr7. „ . , . ,,. » 8 King v. Kiiw 8 P. Wms. 868 : Goodman v. Grierton, 2 Ba.'**Be. 878 ; Meltor v. Litt, i Aw Floytr V. Lavinflum, 1 P. Wms. 208. 4 Taylor v. Bmeraoti, 4 Dru. & War. 117. PBOCEEDINQS IN MORTOAGE SUITS. 98» elJorv. £«M,SAtt. rnuBtake or accident. Therefore, they hold that an instrument, lich purports to bo an absolute conveyance, may be controlled in I effect by another, which contains. an express stipulation for re- nption ;^ or refers to the property as being in mortgage ; or ntains an agreement for a further loan ; * or by proof of pay- lent of interest,^ or other proper evidence that the original con- was only made by way of security. 9, where the deed purported to be an absolute assignment, but e was an erasure of a proviso which remained partly legible, I the erasure was not accounted for : the House of Lords held^ tthe instrument was a security, on the argument for the Crown there was no proof of payment of the consideration, than lieh the value of the estate was at least four times greater ; and i the grantor had continued in possession, had made leases, and lercised other acts of ownership ; though, upon an issue the had found that the deed was duly executed, and though at 1 designed for a mortgage, had been afterwards altered to an olnte purchase. Again, if the deed contain a trust for sale on onpayment of the consideration money by a day named, a redeem- interest is inferred to have passed,^ though there be no pro- for redemption, but only for re-conveyance on payment of the Dcipal and interest. It should, however, be observed, that the disproportion of value not of itself a reason for construing an instrument as a mort- ge, but only where there were other circumstances tending to he same conclusion;* though, on the ground of excess of value, twas adjudged in an early case, that a release of an equity of re- bmption was made on a further trust, and did not bar the right redemption.^ - - . So, if a mortgage were intended, but the mortgagee omit to in- trt the proviso for redemption, the mortgagor being a marksman, fif the mortgage were intended to be made by way of absolute 1 1 r»««4m»v Own, 10 Sim. 386. '" - ;'• ,' 1 1 *?«■ /• Of««nuwy, 19 Ves. 413. I f ^."^ '• 0<*lton, 6 L. J. , Ch. 312. ; ' '■ i.O. V. Cro/«», 4 Bro. P. C. 136. I «Y- Carter, 17 Beav. 11 : 17Jur. 478. l*m Lord Nottingham's judgment in Thomborottgh v. Baker, 3 Sw. 631. So in case of an annuity, Wh« V. Morgan, cfted 2 Soli. & Lef . 895, disproving of Heathcote v. Paumon, 2 Bro. 0. 0. 167. *<«Vv. filuwv., Ca. & Ch. 107. :Mv 'n ' 'i-'t ^ * I I I ■I- 990 PROCEEDINGS IN THE MASTER'S OFFICE. , \ conveyance and defeasance, but the grantee never executed the ] ter, the grantor i" allowed to shew the mistake.^ But Courts t .,; Jquity will not lightly infer an intention to maJ a mortgage, whe. ■. none is expressed, especially where possessid has gone with the c Ureyance, and there has been a long acquis cence. Hence, a covenant by the grantor, not to make partitij without the advice and consent of the grantee, has been held'i to turn a conditional sale into a mortgage. : i 7 A bill was filed against a trustee for an account and re-conve| ' ance. At the hearing, a decree was drawn up by consent, treati the defendant in all respects as a mortgagee : Held, upon app from the Master's report, that, from the time of the decree,! rights of the parties respectively must be determined by the rolj ordinarily applicable to cases of mortgage.^ A creditor brought an action against his debtor to recover demand, which was stayed by an arrangement made in Octoi 1840 : — the debtor assigned to the creditor the house and pre; occupied by the debtor, when, in addition to the amount of tl debt, a sum in cash was paid him, and for two years be continoi to receive the rent of the premises, when the creditor obtaini possession by an action of ejectment. In December, 1855, tl debtor filed his bill setting up that the transaction was a mo: alleging that his poverty had in the meantime prevented him enforcing his claim : the Court, though inclining to dismiss tl bill, directed an issue as to the question of mortgage or no moi gage.* The enquiry granted in this case would, at first sigl seem 'to admit evidence, and necessarily parol evidence on question of "mortgage" or "no mortgage," but it will be that the enquiry was granted with great reluctance, and perha] from an overtenderness to the plaintift". The Master, under sni a reference, would find Holmes v. Matthews,^ and OreemhuUi f Baifihart,^ valuable guides. , r v i . * 1 8 Atk. 389 ; Maxmll v. STountaoute, Pre. Ch. 527 ; Card v. Jafray, 2 Soh. & Lef. 87i Tto^ formerly, and especially In the north, a common way of effecting mortgages ; the two instruawnU j Ing read as a single deed ; Cotterell v. Purchase, For. 61 ; Spurgeon v. Collier, 1 Eden. 65. 2 Cotterell v. Purehaae, For. 61. 5 Kerby v, Kerby, 5 Orant 687. 4 Wataon v. Munro, 6 Grant 662. 6 8 Grant 379, and 6 Orant 1, In Appeal. 6 3 Grant 1, in Appeal. ii' ' 'ii PROCEEDINGS IN MORTGAGE SUITS. 991 A person having a claim against the owner of a mill brought an lion against his executors and recovered juf' anient ; in exeeu- „j against lands was sued out, and placed in^ • " hi .i of the beriff, under which all the lands of the teste P, of which the [and mill premises formed a portion, were (f'ffy advertised for lie by the Sheriflf. The testator, by Jiib^^ill, had devised his ods to his relations : the mill and mill premises to an infant on obtaining twenty-one, his father, during his minority, being iititled thereto. By an arrangement made by the adult devisees ith a friend of the family, it was arranged that this person should itend at the SheriC 's sale, and bid such an amount for the whole Uperty as would cover the execution debt and costs, and that he (lould hold the same for the several owners ; accordingly he at- aded the sale, and bid the stipulated amount, the proprietors and |ieir agent also aitending there and preventing any competition ' openly announcing the arrangement which had been made, and Jy one bid was made for the property, which was duly conveyed r the Sheriff to the purchaser, who afterwards conveyed to the ^visees their respective portions of the estate upon being paid a pportionate share of the amount bid at the sale, except the mill ad mill premises, which the purchaser retained, occupied, and Dproved during the minority of the devisee, who, on obtaining his 1 age, demanded a conveyance, which demand the purchaser re- to comply with, alleging the purchase thereof to have been jar his own benefit, whereupon the devisee filed a bill to compel he purchaser to carry out his arrangements. The Court, under he circumstances, held, the plaintifif entitled to redeem the mill [remises, and that the arrangement under which the purchase was le'at the Sheriff's sale was capable of being proved by parol idence.^ In Rapson y. Hersee,'^ the distinction between a mort- age and an absolute sale, with a contemporaneous agreement for epurchase, is fully explained ; and an absolute conveyance held • be of the latter character rather than the former, on the weight evidence, which was conflicting. . Neither will Courts of Equity disturb the rules of evidence, by karying a deed only on parol proof that the intention was different fforo that which appears by the deed.^ There must be mistake, 1 1 ^^'^ "■ ^oOltuhan, 6 Grant 324, J iwl Portmore v. Morris, 2 Bro. C. C. 229. ■:::.'.f. One of the tests by which a conditional sale is distinguished om a mortgage is the adequacy of the consideration ; where, herefcre, it was shewn that the plaintiff had conveyed an estate |brless than one-fourth its value, with a clause giving him a right re-purchase, the conveyance was declared to be a security ily.* A deed was made by one joint owner of property at the stance of the other joint owner, to a third person, under a parol [reement that the grantee should hold the property to secure a m of money which it was intended that he should advance to »y interest on a mortgage which was on the property, and that object thereto the grantee should hold the property in trust for I wife of such other joint owner, who remained in possession of |ie property : Held, that parol evidence to establish the agree- pent was admissible.' A memorandum on the deed, signed by the mortgagee,* is suflfi- Qt to set it up as a security ; and so are written accounts of the «eipt and payment of interest, kept by the grantee under an ab- plute conveyance, there being also parol evidence to explain the nission of the usual requisites of a mortgage.^ . ,.,. 80 and see MeLeody. Orton, 17 Grant 84; Denny v. LitKqou, U r"'"; «»« V. Ross. 6 Grant 647 ; WUliams v. Jenkins, 18 Grant 536. [» mniiyn v. Feme, Bam. Ch. 30. The report states that it was the mortgagor's siipiature, but ■»ii»mtaprint, or the memorandum was Ri'jrned by both parties. On the question of costs, the re- n proceeds thus :— " Now as to that the ju.fjje was pleased to say that he thouKht it would be going ?"»">«« Josiah (the mortgagee) pay tlie costs of this suit ; but, on the other hand, his opinion nh^k '^ forfeited his costs. In the first place here is an indotsement under his own hand, 'mm has admitted the assignment to he a mortgage ; and, In the next place, here in a witnoss ™ his answer." |»'>iB»T.^M,4Bro. 0. 0. 471. 39 % * ii'f! 994 PROCEEDINGS IN THE MASTER S OFFICE. ■?.. < * ■ s: The memorandum may also be signed so as to bind the granti or transferee, by his agent, if the agent's authority cun be provd by, or inferred from, sufficient evidence. Thus, the authority i the wife of a transferee, who had signed an indorsement on tlj bill of sale of a ship, declaring it to be a mortgage, was admiti and the signature was held to be the mortgagee's act,^ upon etl dence that the mortgagee himself had given a receipt for interej on the consideration money. "Where a feme covert granted an irredeemable annuity, out of h separate life interest in a fund, she was held entitled to redeem ( the ground that there was an intention, though none was e; pressed, against anticipation ; and that though she might ha^ raised a loan, it was too large an anticipation to do it by annuity.*.;.. ;;-: ;;,..■• ■,■;■':.,.. .,. ^ It is not a consequence of this readiness in courts of equity i construe certain absolute conveyances as mortgages, that there cf^ be no sale with a proviso for repurchase, limited to be void up the nonperformance of a certain condition, it being clear that if t absolute sale be really intended, an agreement made at the time for a repurchase, and not acted upon, will not of itself entiti the grantor to redeem.^ The question to be considered is, whetli^ the contract was in its nature a mortgage under the form of a sa or a bona fide purchase, subject to a contract for repurcha and the test of this is the reciprocity and mutuality of the reij dies.^ For as on the one hand, where the grantee has the usu remedies of a mortgagee, the deed may be inferred to be only I security, so on the other, in the entire absence of those remedij (assuming that there was no fraud or mistake) no new clause fi| repurchase will confer upon the grantor a right to redeem after I condition has been broken. Now, the condition for repurchase, unlike the proviso for demption, is construed strictly against the grantor; who, if 1 desire the benefit of it, must shew compliance with its termBj And the reason of the difference is, that in a mortgage the pes 1 WkUJleld ▼. Pariltt, 16 Jur. 868. 5 Caverley v. Dudley, 8 Atk. 641. 8 See Vemer v. Witutatdey, 2 Sch. & Lef. 894, and the instimoes cited below. 4 Mellor v. Leet, 2 Atk. 495. 6 Goodman r. Orierton, 2 Ba. &; Be. 274. « See 8 Sw. 681 ; P*gg v. Wuden, 16 Be»T. 289 ; Barrell v. S, given with deed, deposited llyway of equitable mortgage, is not a "deed, conve;)ance, or aasur- jince" within ^-he meaning of Con. Stat. U. C. c. 89 s. 17, and does jnot require registration. Such a memorandum is only a matter of jevidence, the mortgage being created by the deposit of the deed.® An equitable lien or security may also be established by parol jevidence of arrangements, the subjects of a separate agreement, or &»««, 12 Grant ?04. « flarrim v. Armour, 1 0. L. J. N. S. 184. .j-i*e „ji;- 1002 PROCEEDINQS IN THE MASTER'S OFFICE, « • I referred to in a deed relating to the transaction out of the whic)i^B>s^<^ lien is held to arise ; as where^ incumbrancers joined in assignuw their security upon the terms, that they should be secured by rab- sequent mortgages, which were never executed, they were held en- titled to en equitable lien as sefiond incumbrancers. So, also, upon real estate in favour of the obligee of a bond, by a recital therein, that the obligor had become possessed of real estate under a certain will, upon the execution whereof he had promised the testator to^l^''^! provide for such obligee.^ So, where' a lease was made of certain premises, and the rent! was assigned to the creditor; there being in the assignment a recital, that a security was intended, and a covenant for further assurance of the rent, the covenant was held to be in equity a covenant to make a mortgage, and the case to be within the rules of equitable] mortgages. An equitable security may even be established upon documenti which remain in the keeping of the debtor, though in the li custody of the creditor ; as where a bundle of deeds marked " Cash I Credit Security E. LI. to the Koyal British Bank," was found in a drawer of the bank used for his private business by E. M., who vm the secretary of, and was indebted to the bank. By the help of parol evidence, this was held to be* an equitable security for further advances in addition to other securities mentioned in a memorandum previously given. But in the absence of evidence, and where the I security remains in the possession of the debtor, no lien arises by reason of a memorandum annexed to it, which purports to appro- j priate the proceeds to satisfy a particular debt, such a memorandum j not amounting to an assignment.^ '^ ' The security may also be established against property of which the title deeds have not been actually deposited, where a written ! undertaking, or expression of intention to deposit them, can be proved. Thus a letter referring to inclosed particulai's of title deeds, and alleging that those* deeds were deposited to secure a debt, was 1 Banki v. WhUtall, 1 De a«. & S. 686 ; Beakett v. CordUy, 1 Bro. a 0. 86S. 2 Eat parte Atkim, 2 Y. A 0. 686. 8 Ex parte Wilk, 2 Cox. 288. * 4 Ferrii v. Mutltm, 18 Jar. 718 ; 2 8m. & Oif. VS. 5 Adamt v. Claxton, 6 Ves. 226. e Eti parte Arkwright, 8 Mont Dea. & De G«x 129. t ( AS TO EQUITABLE SECURITIES. 1003 yd to create an equitable charge upon the estate comprised in the s, although, upon after inspection, nothing appeared to have I deposited but an old paid-off mortgage. But a parol agree- nent to deposit a deed will of course not be sufficient to create a curity. i-m /<■-.. ,-'\-r.yi uj-,»>' <■.■.-'.■■ ■■ .• -■■■ ■• .-.• :'-■■-• A deposit of a material part only of the deeds will effect a good mortgage of the estate, there being no fraud, and good Ireason for not depositing the remainder.^ And an equitable mort- Igage by deposit affeets, prima facie, all the property comprised in jtiie documents deposited ; the onus of showing that the security was jlimited to part of such property being thrown upon the mortgagor, lor those who claim subject to the mortgage.' The extent to which the Imortgagor is intended to be bound, will be measured by the written lagreement where any exists, and will not be carried beyond tha I terms there expressed. Therefore a deposit of deeds with a pariiner- ship, accompanied by a memorandum addressed to the partners by luMne, expressing the deposit to be for s^^curing moneys to be ad- vanced by their house, will not, if there be nothing more, secure advances by the firm after a change in its members; though parol proof of intention that the deposit shall extend to the demands of the new firm will be held equivalent to a re-delivery of the deeds to them.^ Nor will the despoit cover any more than the sum which it was I the principal object of the agreement to secure, though the agree- ment relate to other debts which may become due from the debtor to the creditor. Thus it was held^ f . law that the pledge of a lease I to secure the amount of a promissory note did not cover moneys which became due to the depositee for goods ; though it was a con- dition of the agreement that payment of the note should not be en- forced within a certain time, if the interest and rent, as well as the price of goods to be purchased and used on the premises, should be regularly paid ; the condition relating only to the enforcing of the note, and being ancillary to the principal object of securing the amount due thereon. 1 & parte Coombe, 4 Mad. 249. J Lmn V. Allen, W. Rep. 693, 1865-1866. > iiMon V. Dalton, i Coll. 666. J m /*•** Keniington, 2 Yes. & B. 79. 5 CMton V. CarringUm, 19 Jur. 89 ; 16 C. B. 96. 1004^ PROCEEDINGS IN THE MASTERS OFFICE. ^ An equitable mortgage, being thus supportable by parol evi- dence, may by the like evidence^ and also (as it seems to have intimated)* by inference alone, arising from possession of the be extended to cover future advances. And a security was held to be so extended* where the deeds were previously in the mortgagee't hands to secure a debt to another person by virtue of the terms of a written memorandum, though the defendent denied by his answer that the deposit was made. Where the original deposit created no valid security, the con- tract being usurious, a parol agreement for a security with legal m- tejrest, and including further advances, was held on appeal* to make a good mortgage by deposit, both for the original debt and further advances, though it was considered in the court below,^ that the original deposit being bad the possession remained unchanged, and that a fresh deposit or a written agreement must be shown to set up the security. Where a voluntary settlor who had applied part of the trust moneys which had come to his hands in the purchase of an estate (the remainder having been lost by failure of the securities,) de- posited with the trustees the title deeds of the purchased estate, the mortgage was held to extend only to the good consideration whidi was retained for it ; viz., the sum invested in the purchase : though before the deposit the settlor had agreed (but afterwards refused) to execute a legal security for the whole trust money.' A legal security cannot be extended by such means to sub- sequent advances made on a parol agreement for a further mort- gage ; because, it is said, the legal mortgagee holds his mortgage as a contract for conveyance only, and not for deposit.' Parol evi- dence also is not admissible to show that the person with whom the deeds are deposited holds them for the security of another creditor's 1 SxparU Langitm, 17 Ves. 227; JTde v. KnotOei, 3 T. & 0. C. 0. ITS ; JBk parte NettteAipitii'''^ Dm. ft Da 0. 124. 2 See Jame$ v. Riee, 18 Jur. 374 ; K»y 281. 8 Baynard t. Woolleu, 20 Be»v. 683. 4 James v. Riee, 18 Jur. 818 ; 6 De 0., M. A O. 461. 6 S. 0. Kay, 281 ; 18 Jur. 878. 6 James t. Budder, 4 Beav. 600. 7 Bx parte Hooper, 1 Mer. 7 ; and we Shepherd v. TiUey, 2 Atk. S48 ; where, howerer, th«r« wii« intervening iuoumDrance. Thus a person who has obtained a legal morttcage may, as to future ■dnnm be in a worse position than an equitable mortaragee. F.ut the distinction was oonfetisedly made to w«» an extension of the doctrine acted upon in Ex parte LangHon. The result Justifies the remark made m another case by Lord Eldon, that " departing from the Statute, (of Frauds,) we have no rule to (O Df. rteAettfo2MtDl AS TO EQUITABLE SECUKITIES. 1005 I jiU as well as his own ; though if the depositee himself be no litorbut a trustee only, he may be shown to hold them for [jnother's benefits The possession of the debtor himself cannot, it heems, be set up as a possession for the creditor ; nor will an alleged po8sessi(Hi for the latter by the debtor's wife be allowed,^ though ) girear that the deeds were left with her with that intent, and [that she h»A ever since kept them under lock and key. , ., Where one of two tenants in common in tail, with cross re- I mainders, deposited the deeds as a security for money due from him Ugaging to make a formal security when required, and the other amply joined in the deposit, it was held that only the moiety of the property which belonged to the former was affected by the security, which, as to the interest of the second depositee, only affected his estate in remainder.* And a deposit of deeds made for the sole purpose of obtaining credit, will give the depositee no lien upon them in equity for moneys before advanced.* It will be observed, that in these cases the inference arising from the deposit was re- butted. .... . . A simple covenant or agreement to charge land will not create a charge in equity upon the debtor's real estate, where no particular estate is mentioned, or the agreement is only for a personal, with power to call for real, security. A promise in a note of hand for a debt to give a security by a mortgage^ of lands when required, or a mere covenant to settle lands of a certain value,® will therefore not amount to an equitable mortgage ; but the lien will arise if the covenantor be then possessed of lands to which the covenant may be held to refer ; as if he covenant to make the charge within a month/ or contract to charge such property as he may have at a future time,^ orto make a charge at a future period, on the arrival of which he actually has power to charge certain lands ; * and in such a case it seems the covenant will create a lien upon any property to which he may become entitled between the date of the covenant and ;f.f • '■;• I BafarUWhUbrtad, 19 \6a. 200. ,s ;• > i Exparte Coming, 9 Xes, 116. V - 8 Pryce v. Bury, 17 Jur. 1173 : 2 Drew. 11 ; and 16 Jur. 967. '' > ♦ Mountford v. ScoU, Turn. & R. 274. 6 rWiomi V. Lucot, 2 Cox, I«0. e PmmUt T. Dedire, 1 P. Wms. 429. 7 Rmmdell v. Breary, 2 Veni. 481 ; and see 4 M. ft C. 681 ; mnd Deaemt v. Smith, 8 Atk. 828-7. J Mitei^e T. Archbithop qf York, 1 M. & 0. 647 ; 6 Sim. 224 ; Lyda v. Minn, 1 M. & K. 683 ; 4 Sim. > WOi^ T. WeUe$ley. 4 M. & 0. 661. ' ; k ^ 1006 PROCEEDINGS IN THE MASTER'S OFFICE. the day fixed for its performance ; which he cannot evade, on ground that he may exercise an option, under the covenant, ast the estates to be charged. ^ •'""■ - And a promise to pay a debt out of the estate of a person, if the personalty be exhat.sted, will charge the realty, f( the promise applies to all the estate.^ And an actual, though \i- complete, agreement for a mortgage, as where the debtoi wrote tol his creditor, * agreeing to give him a mortgage of part of certain specified property, but between the letter and his death conveyed! to trustees for the payment of his debts ; or a defective security,' as amounting in equity to a good agreement to charge the will be carried into effect by a court of equity according to t manifest intent of the parties. „ . • ,* It is, however, to be observed, that an agreement for, or prelimi- naiy step in, the effecting of a security, cannot be set up as an I equitable mortgage if it have been laid aside unacted upon by the I creditor. He must, if any lapse of time have taken place, be able to show that he intended to ca rry it out, and had taken the neces- sary steps to render his security effectual. Therefore a creditor to whom the debtor had given an order for the transfer of certain j shares in a company, which he had not acted upon for three years, I nor during that period had given notice to the company was held^ not to have any equitable lien on the shares, though it was proved that a sum of money had been advanced by the creditor upon the day on which the order was dated. Nothing had been done, which would have prevented the debtor from selling the shares to a stranger at any moment. »4t. ■ ll .'! '*' The question whether a delivery of title deeds, for the purpose of preparing a legal mortgage, will of itself operate as an equitable security, has been the subject of conflicting decisions ; but where there is already an existing debt, may perhaps be now satisfactorily answered in the affirmative. The contrary was formerly held by Lord Hardwicke® (although the case was supported by parol evi- 1 WelUiley v. WeUeahy, 4 H. ft C. 661 ; and see Deacon v. Smith, S Atk. 328. 2 StuaH V. TotUmin, Pow. Mort. 1049, b. 8 Sir Simeon Stuart's case, cit. 8 Ves. 676 ; and 2 Scb. dc Lef. 881. 4 Dale V. Smihicick, 2 Vern. 161. 6 Cumming v. Pretcott, 2 Y. Si C. 488. 6 Brizick V. MannerB, 9 Mod. 2Si. ., y .^ i^. ■, AS TO EQUITABLE SECURITIES. 1007 Bence, on the ground of the uncertainty of the agreement proved od because it was sought to bind the heir ; which their was no ^roof that the debtor, even assuming his intention to execute a mort- ge, intended to do,) by Lord Thurlow,* and Sir William Grant ; ' fho considered that no intention being apparent, from a delivery ifor this purpose, of an intention to create a pledge, such an inten- tion should not be raised by inference. Sir William Grant, how- ver, appears to have assumed too strongly the want of intention to e, alleging that it was a thing which none of the parties had I contemplation. The fact was, that the evidence upon the point [m conflicting, it being sworn by the solicitor who was to have Iprepared the mortgage, that he understood that the deeds were left jtith him, not only for that purpose, but also that he might keep Ithem, together with the intended mortgage. And it seems ^ to Ibve been well established by later decisions that an equitable IBecurity does arise by a delivery for the purpose of preparing an lactual mortgage. It was remarked by Lord Eldon, that a deposit Imade with that object, is of greater force than an implied lirMtion to mortgage arising from a mere deposit and conse- Iquentlyalso amounts to a security. !• It has been observed by Mr. Coventry, writing before the Idedsion of Keys v. Williams, that the judgments of Lord Eldon ud Sir William Grant disclose a want of attention to the dis- tinction between a deposit as a pledge, and a delivery of deeds I for the purpose of preparing a mortgage ; and he remarks, that, linthe latter case, the previous agreement explains the purpose for which the deeds were delivered, and rebuts the presumed contract which would otherwise arise, that the deeds were handed over with a view to a present security. The distinction is plain enough, but not necessarily applicable. The possession of the is an incident of the legal mortgage. Now the principle I set up in the old cases, and defended by Mr. Coventry, amounts to this, — that although a simple deposit of deeds may by inference alone amount to a security, yet a delivery for the purpose of making a better, i. e. a legal security, to the very I person by whom under that security the possession is to be 1 feporfe Bufeej 2 Cox. 248. ; ?*^ *• ^Ulcinton, 12 Ves. 1»2. ' Su BxpaHe Bniee, 1 Rose, 37A ; Edge v. Worthington, 1 C!ox, 211 ; Keys v. WiUiams, 3 Y. & C. 156. .lit w 5: 1008 PROCBEDINGS IN THE MASTER'S OFFICE. retained, is of less force. It would be strange if a creditor ,.has exerted himself to obtain a contract for a legal mo: secure his debt, and in consequence of that contract has obi possession of the deeds, should be in a worse position than if 'had obtained a lien on the deeds by mere inference, founded .possession; and unreasonable that the inference of a security, whi the law would annex to his possession of the deeds, where he made no actual bargain, should be taken away because he had sti| lated for something which would carry with it a right to possession. The question is entirely one of inference. Where , presOTit loan is in course of negotiation, the delivery of the di for the purpose of preparing the mortgage would effect no securil because no debt would be in existence. But where a debte: already, is it not at the least as reasonable to infer that a deiiv for that purpose is as if the debtor had said, — " You are to hav mortgage which will carry with it a right to the custody of deeds ; therefore, take them at once, and prepare the mortgage your leisure," as to infer in the first instance that a deposit withi any bargain at all should amount to a security ? The doctrine equitable mortgages being once established, the application of it the cases under consideration seems, if it be an extension, to be 01 founded in reason and justice. ' And the doctrine has been applied against executors ^ in : of a residuary legatee, whose share they had agreed to secure by 1 legal mortgage of part of the assets, although the mortgage did 1 bind the interests of the other legatees. Section III. — As to Vendor's Lien. The right of a vendor of land to a lien thereon, for the amount oj his unpaid purchase-money, rests upon the plain principle of equity, that he who has obtained possession of an estate, under contract foi payment of the price, shall not keep it without payment. * The! question in what case the lien exists has been much discussed, the result of the cases may be briefly stated as follows; it 1 Eockley t. BatUoek, 1 Rubs. 144. 2 JfocivM T. Stfmmoru, 16 Ves. 828. . ;; , . AS TO VENDORS LIHN. 1009 aised, that where the coasideration is expressed to be paid in the i but is in fact wholly or partly left unpaid, parol evidence may ijriven on the part of the vendee of the real transaction.; as it is I vendor himself who, by claiming a lien, is the first to set up an lity against the written statement in the deed.^ I The lien exists generally (the contract .not being illegal),* with- lit distinction as to the freehold, copyhold or leasehold tenure" of estate, where the whole or part of the purchase-money is un- Lid/ and whether the consideration be a sum in gross, or an nuity;^ as against the purchaser, his heir, volunteers, persons Lving equitable interests, and purchasers with notice of the non- Lyment of the purchase-money, and claiming under the original chaser." ' ■ ' I The lien is unaffected, though the vendor take a draft, note bill of exchange '.negotiated,^ or otherwise (these being but des of payment), for the unpaid money ; neither is it lost by his ing security, by mortgage, bond c* covenant,® from the purchaser elf; and, as to a covenant, whether it be separate or contained purchase deed : nor by the purchase-money being made pay- able at a future day — as within a given time from the vendor's i.^' It may be saved, by a proviso that the estate shall not be signed until payment,^^ without the consent of the vendor and the «ty of the purchaser. And it extends to the assignee of the ^endor, even though he claim only by parol assignment.^* A vendor of real estate who takes by way of security for the bnrchase money the joint and several promissory notes of the vendee iid surety does not lose his lien on the estate for the purchase money hough he took no mortgage therefor ^* *''^ mi.: v t • 7; 5 1 ft'nter T. Lord Amon, 1 Sim. & St. 446. t Mng V. Qthaldeston, 2 Myl. k Cr. 88. is irin<«rv. Lord Anson, 3 Euss. 492 ; Matthew v. Bmoler, 6 flare, 110 ; Elliott v. Edunrda. 8 Boi. IM 181. 1 4 ffariwn v. Southeote, 2 Ves. 893 ; A ttsten v. Halsey, 6 Yes. 483 ; Elliott v. Edtoardt, supra. iltrdiffv. Srughan. cited 1 Bro. C. C. 422 ; Mackrcth v. Symmons, 16 Ves. 828 ; Clarke v. Royle, f^*^; Sugd. V. & P. 86», &&, llth ed. ; Matthew v. BmuUr, 6 Hare, 110. iEUiatt V. "Edtuards supra ; Maertth v. Symmums, supra ; Oibhons v Braddall, 2 Eq. Ca. Abr. 489, ■■».; Walker v. Pregwiek, 2 Ves. 622 ; Cator v. Pembroke, 1 Bro. C. C. 301. I ' Bvk» v. Kearney, 1 Sell. & Lef. 182 : Grant v. MilU, 2 V & B. 30tf ; Gibbon$ v. Braddall, 2 Bq. |& Abr. 882, U.S.; Ex parte Peake, 1 Mad. 346. I « Ei parte Loaring. 2 Ross, 79. » I Jrordi/?. SwisrAon, cited 1 Bro C. C. 422; Elliott v. Edwards, 3 Bos. & Pul. 181 ; Nairn f. Vmt, « Ves. 762 ; Macreth v. Symmoru, 16 Ves, 328 ; notwithstandiiii; FaweU v. Ueeli», 1 Bro. 0. 0, }? fj*^ V. Lord Amon, 3 Russ. 488. U SUwa V. Edwardt, supra. ,. n**" "■ P^o^' 8 Myl. * Cr. 670 ; and see WhUe v. Wakefield, 7 Sim. 40L . ^ « CoftoTM V. TAomo,, 4 Grant, 102. 40 " • ' ' • r| * 1010 PROCEEDINGS IN THE MASTER'S OFFICE. A vendor's lien for unpaid purchase money has priority overi lien created by a registered judgment against the vendee.^ Where a sale was made and conveyance executed before a i of Chancery was established in Upper Canada, it was held thati vendor had, notwithstanding a lien for unpaid purchase moneyj Such a lien was enforced against subsequent purchasers, who, wy they acquired their interest, had notice of the purchase money bein unpaid.* , Land being conveyed in consideration of the vendee providin the vendor with maintenance, washing, &c., the vendor retains a 1 for the consideration.' On a sale of lands for £3,000, the purchaser paid at the time i the execution of the conveyance £2,750, and gave his promissory! notes for the balance, payable in three and four years : afterwardsl he executed a mortgage to his father for the £2,750, alleged to havej been advanced by him to his son to effect the purchase. Thepur{ chaser died intestate, without issue, and before the notes fell dQel the vendor fileda bill against the fatheras heir-at-law, alleging thathej intended to sell the property so as to defeat the vendor's lien, and| praying that it might be declared that he had a first lien or upon the estate for the amount due him. Held, that he was entitled! to a decree for that purpose, but without costs.* In a suit toj enforce by sale a vendor's lien against the heirs-at-law of the I purchaser, the widow of the vendee is a necessary party in respectl of her right to dower.^ The defendant, a minor, purchased an estate I and gave the vendor a mortgage for the purchase money. The! mortgage was afterwards .assigned to the plaintiff. On coraing of I age the defendant repudiated the mortgage, but adopted thel purchase of bringing an action to recover possession. The mortgage I being the deed of an infant was holden absolutely void. But iti was also holden that the mortgage being void, a lien for the purchase I money resulted to the vendor, and that such lien passed to the plaintiff by the assignment of the mortgage.* Where a mortgagee assigned the mortgage covenanting for the payment of the mortgage 1 Hughton v., Davit, 4 Orant, 688. 5 Davit V. Bender, 4 Grant, 620 ; and aee Harvey v. Smith, 8 E. ft A. 480. 8 Paine v. Chapman, 6 Orant, 838. 4 Fouldi T. Powell, 6 Grant, 376. 6 Paine v. Chapman, 7 Orant, 170. 9 Qriue ▼, Whitehead, 7 Grant, 691; and see WiUon t. Danieli, 9 Orant, 491. f 11 AS TO vendor's lien. 1011 mey, and subsequent to an agreement between the mortgagee and lignee that the former might have a re -assignment of the mortgage payment of principal and interest due thereon, and the mortgagee , ^rwards made payments under his covenant : Hdd, that he was f ntitled to a lien therefor as against the mortgagor.^ I, and S., the owners of two distinct parcels of land, agreed to xchange the one for the other. S'.s land was subject to a mortgage rhich he agreed to pay off, but did not, and I. was compelled to deem the same. Held, that I. was entitled to a lien on the land oDveyed by him to S., as for unpaid purchase money, for the Dount paid to redeem the mortgage.^ A tract of land was bought several parties with a view to laying off a portion thereof into uilding lots, and selling the same to purchasers : for greater in doing so the legal estate was vested in one of them as istee however for the several parties interested. Subsequently ne of the owners sold out his share, receiving in payment notes of ad, made by his vendee and endorsed by two other persons. Held, I error and appeal, reversing the decree of the Court of Chancery at the vendor did not under such circumstances retain any lien for lie purchase money remaining unpaid.' .. . ^ < , But if the consideration for the sale be the security itself, and bot the sum secured ; * or if it appear by direct agreement ; or 1 be clearly inferred from the circumstances, that the purchaser ntended to rely upon the security only, and not upon the land, then he lien will be gone ; ^ for it is evident that the vendor has already pt all that he bargained for. , .... Now as the lien is lost in these latter cases, not by the mere king of a security, but by the taking it by way of substitution for he purchase-money, the question becomes in a great measure one of ntention, and must be decided by the circumstances of each case. A stipulation for payment of the purchase-money within a certain J after a resale,* and the taking of a security by bond and mort- i of part of the estate,' have thus been held indicitave of an inten- llfbrnin^v. PoImer,12 0n«it,226. v- / \\Smjiy. Porter, 12 Ora- 1, 646. • mtm V. OiUeipie, 8 Grant, 228. L^VwlirT. lord Anson, 1 Sim. & St. 434 ; Clarke v. Rayle, S Sim. 499 ; Buekland r. Poeknai, It I Pamtt r.Swetland. 8 MjrL * K. 666 ; WinUr v. Lord An$on, 8 Euas. 402. • ftpnru Parktt, I Olyn. & Jam. 228. 'w«>«rT.*otttit«>o«i«, 2V»ml2L ' m/ 5: 101£ PROCEEDINO8 IN THE MAHTER'H OFFICE. tionto abandon the lien entirely. So where the vendor was party to a mortgage made by the purchaser to a person who had advanced part of the purchase-money, hia lien was held^ to be gone. And the! taking a mortgage for part, and of a note payable on demand fori the residue of the purchase-money, has been held ^ to have a likel effect ; on the strong but perhaps (says Lord Eldon,)' not conclusivel inference, that the charge for a part, showed an intention not tol charge the residue. If the bond,**in8tead of being given by purcLas-l er alone, be also joined in by sureties, it is thought that the lien no| longer remains. The owner of land, after creating a mortgage thereon, assigni his equity of redemption to a third party, who covenanted to pa off the mortgage debt, and afterwards became the purchaser of thi mortgaged premises, under a decree at the suit of the mortgagee, and at the sale the amount realized was not sufHcient to cover tbel amount due to the mortgagee. Held, that under the circumstan he was not entitled to any lien on the estate for the deficiency. Where the purchase money of an estate was left unpaid, and creditor of the purchaser (without notice) sued out an executioi against lands, under which the premises in question were sold the defendant, who had notice, the vendor's lien on the propert for the unpaid purchase money was held to attach in the hands the purchaser at Sheriff's sale. And quaere, whether, if the purchi at Sheriff's sale had been completed without notice, the conveyani by the Sheriff would not have conveyed the property subject to existing equities against the debtor.* A purchaser of real estai executed to his creditor a luortgage thereoa for a balance ol unpaii purchase money, but which was not registered until after a j ment recovered against the purchaser had been recoveied registered. Held, that the judgment had priority to the mori although the deed to the purchaser had never been registered ; ani that under such circumstances the vendor did not retain any lii for the unpaid purchase money.'^ The lien of a vendor for unpaid purchase money is not waived b] 1 Cood V. Pollard, 9 Pric«, 544 ; 10 Price, 109. 2 Bond V. Kent, 2 Vem. 281. 3 16 Vc8. 344. The report in Vernon, however, gives no reaMns for tiie postponement. 4 Cood V. Pollard, 10 Price 109 ; Sugd. V & P. 860, 11th ed. 5 Forbet V. Adamton, 1 Chamb. Rep. 117. 6 Strong v Lewi*, 1 Grant, 443. 7 Burgegg r. Bowett, 8 Orant, 37 ; and see HelUwell v. Diekson, 9 Grant, 414. ,v!>^'n^; .,i.:i.'-- AS TO VENDORS LIEN. 1018 (he ftct of his suing and recovering judgment for the amount, I iltbough such recovery is subsequent to another judgment registered igiinst the purchaser,^ L sulii land to R. who paid £175 in cash, and assumed payment of two mortgages made by L. as one-third of the consideration igreed on ; and a mortgage was executed by R. to secure another third of the purchase money. L'.s wife refusing to bar her dower, I bond was executed by R. providing for payment of the remaining 0D^third at a certain period. It was arranged, that in case of the (ieatb of L. or his wife before the time fixed, the money secured by the bond was to be paid within one year thereafter, to the survivor. add, tiiat under the circumstances L. had not waived his vendor's hen for that portion of the purchase money secured by the bond.' On the sale of land the purchaser paid a certain sum in hand, gave a mortgage on other property owned by him for another por- tion of the price, and for the balance four promissory notes were to be given, made by the purchaser and such other persons as would render them saleable, without being endorsed by the vendor, one only of the notes was delivered. Held, that the vendor retained no lien on the property sold, for any portion of the purchase money. Hdd&ho, that the bill could not be sustained as a bill for specific perfoniiance, the agreement for the delivery of the notes being such is this Court could not execute, and the remedy being at law for breach of the contract.^ A vendor took from the purchaser a mortgage for part of the consideration money, but did not register the conveyance until several months after the deed to the purchaser had been registered : -in the meantime the mortgagor created a second incumbrance in in favor oihonajide mortgagees, which was registered long prior to the first mortgage, without notice of the vendor's incumbrance. EM, that the want of a receipt for the consideration money upon the deed to the purchaser was not" suflBicient to postpone the second incumbrance.* The principle that a vendor, by taking from a pur- chaser an endorsed note as security for unpaid purchase money does not thereby lose his vendor's lien, is equally applicable where the 1 /KiU V. SmttJk, 8 Grant, 339. J mrtjfrybrd » ^utA«r/ord, 11 Grant, 6«6. V ^j ' lfiie»ar».a»aJ!L 11 Grant, 670. - •*-- -IT. i>am«,l8 0rant, a . . • . >. 1 M ^ ^ 1014 PROCEEDINGS IN THE MASTER'S OFFICE. security given is a bond, in which a third person joins as security.* It is clearly settled that the rights and franchises of a railwaJ company do not prevail over a vendor's lien : and where land wai sold to a railway company for the purposes of the road, and i mortgage taken to secure the unpaid purchase money, it was k that the vendor's lien was not thereby lost.^ It has also been decided to be lost, by taking as special security! sum of stock, which, being sufficient, or probably sufficient, to cova the purchase-money, was held,^ to have been pledged, that the vendei might have absolute dominion over the land ; and on the same prindJ pie, it has been thought,* a mortgage upon another estate of the ven] dee would have a like operation; the obvious intention being I burthen one esta'ie, that the other might be free. Sir W. Grant wai of opinion, that a totally distinct and independent security would 1 a substitution for the lien, and not a credit on account of it ; by whiclj he meant, says Lord Eldon,^ not that a security, but the nature of i security, might amount to satisfactory evidence, that a lien was nod intended ; and the latter learned judge adds, that a mortgage is noil conclusive ground for the inference that a lien was not intended, anil that he cotdd put many instances, that where a mortgage ol another estate for the purchase-money would not be decisive evi-| dence of an intention to give up the lien. The opinion of Sir W. Grant appears to be acquiesced^ in as i general rule by Lord St. Leonards ; and the doctrine which may perhaps be deduced from the different cases cited, is, that the taking a distinct security is always prima /acie'evidenie that the lien ha been abandoned ; but that this inference may be rebutted by proo^ of an agreement, or of circumstances leading to a presumption of an agreement, to the contrary. The Vendor of lands having taken a mortgage upon them for tha purchase money, accepted from the I'urchaser a transfer of otheil lands, the price of which he endorsed in the mortgage ; and m lands so transferred being subject to incumbrances, the vendor tookj 1 SKeennan v. PartUl, 18 Omnt, 8. 2 Oaltv. Eri« and Niagara, R. Co., 16 On,nt,fSaj. ' 8 Nairn v. Prowse, 6 Ves. 762. 4 Nairn v. Prowse, 6 Ves. 762. 6 In Macrrth v. Symmom, 16 Ve8.348. , „ ,, - 6 See SugC. V. & P. 802, lltb ecL, ioT the caws and dootrine on the subject at length, ud jra«T«uv^ Symmont, 16 Ves 828. ■ .■ - - , - AS TO VENDORS LIEN. '>•*<« 1015 om the purchasers their bond to discharge them, which having; iuled to do, the vendor was held entitled to claim under his mort- I against the lands sold by him, the amount of the incumbrances (left unpaid ; the right of no third party intervening.^ Land ubject to a vendor's lion for unpaid purchase money was sold under xecution at Sheriff's sale to a purchaser without notice. The xecution debtor subsequently re-purchased the land from the Sheriffs' vendee in the name of a third party, who conveyed it to a I' iher of the debtor, in trust for the latter, who having become ^insolvent, made an assignment under the Insolvency Act of 1864. \Sdd, that the vendor's lien attached on the lands in the hands of Ithe assignee ; but, Semble, that the Sheriffs' vendee would have held Ifteefrom the lien; though if the execution creditor had himself become I the purchaser at Sheriffs' sale he could haveso held the land, free from [such lien, though ignorant of the letter, Sed qucere.^ One of two partners on retiring from the partnership, conveyed Itothe remaining partner all his interest in the partnership lands, I mill, and stock in trade, who gave the retiring partner his promissory Inotefor £500, payable 1st September, 1867, agreeing at the same time, that in case of his effecting a sale of the premises before that time, to pay the note though not due. There was no evidence of I any express agreement for lien oi 'he property assigned. Held, that the circumstances were such as to negative the retention of any vendor'slien by the retiring partner.^ It may here be mentioned that the order of 20*h June, 1861, [ directing money ordered to be paid, to be paid into .ome BanPw, does j not apply to a suit by a vendor to enforce his lien for purchase I money. In a suit of this nature, in applying for the final order for sale, it is not necessary that the afiidavit of the plaintiff as to non-payment should negative the fact of possession or the receipt of renU and profits.* Where a surety undertook to pay the debt of his principal, and to keep down annuities granted by him, and to give him an lot at length, udJfwKtii'J 1 BuWttin V. Duignan, 6 Grant, 695. J l«n Wagner v. Findlay, 14 Grant, 68 1 Matheri v. SkoH, 14 Grant, 264. wtden T. Utwtty, I Gtuumb. Rap. U4. 1010 PHOCEEDINQS IN THE MASTER S OFFICE. is o ■■ indemnity againss such annuities, upon having a mortgage in fee( secure the debt and value of the annuities, and afterwards tb i- principal soM the reversion of the estate to the surety for thj amount of principal and interest secured by the mortgage, andbotl joined in conveying to a third person without mentioEing any lieJ - to be had by the principal, it was held ^ that for part of thl consideration, viz. the debt, there was a lien, but not as tothi annuities, the silence as to the debt and the fact that there was ' indemnity against the annuities, being thought to show strongly tha as to the latter, the personal security of the surety was alone reliei on. And it was held material, that the sale was only of the reveri sion of the estate, inasmuch as it was unlikely that a person <1 for the consideration of annuities, and the purchase of a reversioJ which might not fall in until all the annuitants were dead, woulil rely on that reversion in addition to the indemnity already givea by the bond. It was also said, that if money be paid prematurely, it would I considered as a lien on the estate in the hands of the vendor for ill , personal representatives of the purchaser ; ^ and it has accordinglj - been held, that a bill by a purchaser, where the contract vai ;,, repudiated, praying a declaration that he was entitled to a lien upoJ the estate for his deposit, was not demurrable. ^ It appean however, * that the lien only exists absolutely where the vendoj is owner in fee of the estate ; and that where he is a mortgaga selling under a power of sale, it does not exist against the mortgagoil ! but only against the mortgagee to the extent of his interest in thj estate.^ . a . • Courts of equity have in many other cases raised a lien upoi property for money expended, or debts remaining unpaid ; as, foj instance, for the benefit of a cr editor having authority from thj debtor to repay himself the principal and interest of a debt ut ( the surplus arising from the sale of an estate in mortgage to thj debtor, ^ or having a power of attorney to receive the rents of tb estate, irrevocable until repayment of the debt with interest, and I apply them in payment of the interest and of the premiums ud( 1 Macreth v. Symmons, 15 Ves. 328. 2 Per Sir Thomas Clarke, M. R., in Burgean v, WhrnU, 1 W. Bl. 150 ; and see 16 Ves. S45 ; ♦ 5tfl ' & P. 857, ed. 11. 3 Wyth'ts V. Lee, 3 Drew 31)6. 4 Wythen v. Lee, 3 Drew. 896. - 6 As to marshalling in the cane of the vendor's lien, see Svgd, V. & P. oh. 18, i. 2, p. 873, ■m."! Coote, Mort. 223, ed. 3. 6 Hodg»on'» case, 1 01. & Jant. 13. AS 10 VEia)ORS LIEN. •!>.(. Mt mil I policy by which the debt was secured ; ' for the benefit of the gignee of a policy, lor the amount of premiums paid after the lissignment, with interest from tly times of the several payments, lis against persons who made out a prior title to the policy ; * of lin annuitant, upon a fund in possession, for arreai-s of his annuity jecured by an assignment of an interest in the same fund, (effected when it was only revereionary,) and for the consideration for the jbsolute purchase of the same reversionary interest; ^ of trustees, who, having a power of sale with the consent of a tenant for life, permitted him to sell and apply the purchase-money towards pay- t of the price of another estate, which was conveyed to the tenant for life in fee,* but declared to be chargeable with the unount of trust money expended in its purchase ; of cestuis que tmknt, upon securities given in consideration of advances, into which u ust moneys were inferred (under circumstances of great suspicion, though not clearly traced) to have been imported : ^ of a person who has laid out money upon an estate, upon the faith of the I'lte vX' ution of a contract by another ; as where ^ one who had I pu. u ^d from a remainderman upon the representation that the tenant for life would concur in "^he sale, which he afterwards refused to do, took possession of the estate, and cleared off an incumberance [thereon, and was held entitled to a lien for the amount expended. But the principle upon which a lien is raised in the case of vendor land purchaser, upon non-payment of ^he purchase-money, by mistake, oi for the convenience of the purchaser, does not apply, "^ I where the vendors being known by the purchaser to be trustees the purchaser leaves part of the purchase-money in the hands of one of them under his absolute control, and without the concurrence I of the co-trustees, or the cestuis que trustent. A person who has hovA fide advanced money on the security of a eposit of a deed, without notice that the property to which it relates is trust property, has a good lien thereon,^ and the maans M redeeming him will be obtained, in the absence of any other fund, from the residue of the trust estate. :i 1 see 16 Vea. 345; iSMfii '."oh. 18, i. 2, p. 875, -Hi- III 1 Ahbott V. /Straiten, 3 Jo. & Lftt. «03 ; Spooner v. Sandilandi. 2 Y * C. C. C. 390. '- *eit V. Reid, 2 Hare, 258 : see Claclc v. Holland, 19 Beav. 262. 3 Coiyor v. Clay, 'I Beav. 188 ♦ Prvse V. Blakemore, tf Beav. 507. 5 Hartford v. Lloi/d, 20 Beav SIO. , ' i Ludlow V. Gray all, nPr'iet, aa. ... t.^.- ■ fhUe V. Wakefield. 7 Sim. 417. 8 Sharihate v. Ohbt, Eay, 333. 1018 PROCEEDINQS IN THE MASTER'S OFFICE. 5: ■V' As to those transactions which are held to amount to eoiv(J assignments by debtors, of debts or other choses in action infav^ of their creditors, the principle upon which they stand, extends! create a valid equitable charge, where ^ there is an agreement tween the debtor and creditor, that the debt shall be paid out oil specil&c fund coming to the debtor, or an order given by a debt( to his creditor upon a person owing money, or holding funds longing to the giver of the order, directing such person to pay m funds to the creditor ; and the concurrence of the person who o\v| the debt or holds the chose in action, which is the subject of 1 assignment, is unnecessary.^ A solicitor is entitled to a lien (which the court will protect by stop order)* upon a fund which, having been recovered byhiseie tions, has been paid into court, for the costs incurred in the re very of the fund ; but the lien does not extend to any other costs :| nor if the solicitor have been employed by a trustee can he comi) the latter to extend his claim upon the fund in court, for the tor's benefit, to costs beyond the costs of suit ; though the trustj himself may claim out of the fund all costs and expenses iucuna by him.^ So as to funds not administered in court, the soHcitor who I employed by a trustee has no lien upon the trust fund, though thl trustee himself may retain his costs.^ This lien does not arise upon real estate recovered by the solicij tor.^ A lien also arises in certain cases, in favour of solicitors, upo^ documents in their possession belonging to their clients, by mean of which they are enabled to obtain payment of their costs and other moneys due from the latter. This, however, is a right ii respect of which Courts of Equity give no active relief, and it isl therefore, not material to notice it in connection with the remedied Ii ■ 1 Rodickv. Oandell, 1 De O., M. & O. 743, and cases cited thero ; Riccard v. Priehard, 1 Kiyti 877 ; Ward r. Audland . 8 Beav. 201 and cases cited Id. 213, note ; Holroyd v. Oriffltht, 3 Drew, w- 2 Bell V. Lojuion and Sorth Western Railmay Company, 16 Beav. 648. 8 Uobion ▼. Shearwood, 8 Beav. 486, and note there. 4 Baton v. BoUand, 4 M. & C. S64 ; Lann v. Church, 4 Mad. 891 ; Hall v. Later, 1 Han, 671. 5 Hall V. Laver,! Hare, 671 . 9 Worrallv. Har/ord, 9 \«s.i, 7 Shavtr.NeaU,WBwf.U7. ♦ i • ' ■ / OP REDEMPTION. tn 1019 nediately under consideration ; but as it sometimes happens in ffking out decrees f^r redemption and foreclosure, that a lien of I kind is set up, the subject will hereafter be noticed in con- llsring the doctrine respecting the possession of the title deeds [mortgaged estates. . • •• . •' Section IV. — Of Redemption, The person who seeks redemption must show a good right to deem, the mortgagee being entitled to hold the estate against all ho cannot do so ; and if the defendant can make cut a case which 1 dLrfictly to show that the title is in another peri on than the aintiff, the latter will not even be suffered to redeem it his peril.* ^ot a plea in bar to a redemption bill, on the ground of want of iterest in the plaintiff, has been held bad, where the mortgagor [parted with his interest in the security to an assignee, for rliose benefit he was seeking redemption ; though the assignee nost be a party to such a suit.^ in 1821 the plaintiff" mortgaged three premises, (in Belleville, iKingston and Camden), to secure a debt payable in the following [year. It was not then paid. Payment was urgently demanded in 27, the mortgagees being then in great pecuniary difficulties, and the debt still remaining due, the mortgagees sold and conveyed, with absolute covenants for title, the property in Belleville, for what appeared to have been about its value at the time, and they gave credit for the amount on the mortgage. This property afterwards passed through several hands, and was bought by the present owner in 1837, who subsequently made considerable improvements on it, and dealt with it as absolute owner. Held, that this property was not redeemable by the mortgagor, on a bill filed in 18i30, and that the effect of the sale and transfers by the mortgagees of the portion of the mortgaged property was to transfer to the purchasers a part of the mortgaged debt, proportioned to the value of the property transferred, as compared with the whole property mort- Lavsr, 1 Han, in. 1 Lmax v. Bird, 1 Vem. 182 ; ■ ee Francklyn r. Fern, Bar. Ch. \ VinUiUttom v. Tayloe, 2 Frew. 279. * UiLiUan v. MaxOand, 3 Cnmt, 104. I ■ o I 1020 PROCEEDINQS IN THE MASTER'S OFFICE. f\ f» The Court refused relief on a bill to redeem, filed in 1852 by mortgagor, who had given a mortgage to certain executors in 182 payable in 1832, on property of not greater value than the amou secured upon «it. The mortgagees having in 1832, after the mop gagor's default, sold the property for less than was due on it, i the mortgagor having, therefore, given possession to the purcha in pursuance of a letter from the acting executor (since deceased) the mortgagor informing him of the sale, and requesting him give the vendee possession, " in which case the executors relinquisi all claim against you for the interest in arrear, &;c." ^ ' . Where a security was effected by an absolute conveyance, and law conditioned to reconvey on payment of the debt, but instead doing so, the mortgagee sold and conveyed the premises to otha persons, whom the plaintiff alleged, however, had notice of the tr title, but the only notice having been shown to be a mere casual conversation which took place in a bar-room of a tavern, upward of fifteen years before the filing of a bill by the mortgagor! redeem ; the Court refused redemption, and dismissed the bill wili costs.2 The solicitor of mortgagees gave to the mortgagor memorandum of the amount due, and, relying upon this, a thir party purchased the equity of redemption. Upon a bill to redeen the Court held the mortgagees not bound by the amount given i^ the memorandum, the evidence showing that the solicitor was no aware that the mortgagor had made the enquiry on behalf of thJ purchaser of the equity of redemption.^ A. lent B. $2,000 an(] » took two mortgages from the borrower, each for $1,000, on separaK properties. The mortgagee foreclosed one of the mortgages, anJ then parted with the property. Held, no bar to a foreclosure of thj other mortgage.* To a suit by u second encumbrancer, to redeen the prior encumbrancer, the owners of the equity of redemption an necessary parties.^ Kthe right to redeem be fairly dependent on the validity ofi instrument, there will be no declaration as to the terms of rederap ttoa until the question of validity has been settled.* A trial at la^ 1 CliUe V. Maeaulay, 4 Grant, 410. 2 Clarke v. Littls, 5 Grant, 363. 3 Moffalt V. Bank of Upper Canada, j> Umat, 374. 4 Bald V. Thomson, 16 Grant, 177. 6 Long v. Long, 16 Grant, 239. Blake v. Fottor, 2 Ba. & Be. 887. OF REDEMPTION. '.rH'. i loii' L utile the right may be granted, where a presumption of a plain liirerse title to the equity is made out ; as where ^ a person claim- Iw to redeem under the heir general, the defendant set forth a deed Uentail, by virtue of which the title appeared to be in another ; Itut a trial will not be granted merely that a defendant who has Imdnced no evidence of his own title, may have an opportunity of leontesting the plaintiffs claim, especially if the claimant have been I in possession as assignee of the mortgage, with knowledge of such Idtim- The court, on the other hand, will act upon a prima facie title lihown by the plaintiff, however complicated it may be, if it be Impported by satisfactory evidence, and be uncontradicted, except by a mere allegation of an adverse claim ; considering that the only Latter determined is the right of redemption, the decree for which fill not hinder an adverse claimant from asserting his title, at law Lin equity, in another proceeding.* So if, but not unless, the plaintiff make out a prima facie title to I redeem, as by showing that he is an encumbrancer on the estate, the court, without determining in what rank he stands, or who are the other persons entitled to redeem or foreclose, will, upon motion in the cause, restrain* the first mortgagee from transferring or assigning the mortgage security, and from conveying or otherwise dealing with the legal estate in the hereditaments comprised in the security, until the rights of the parties can be settled, upon the principle of protecting the security pending the litigation ; but it will not interfere with the possession of the deeds. And the court fill take this course the more readily if the first mortgagee have contracted to deal with the estate by surprise, or under circum- ijances showing an intention to deprive the puisne mortgagee of his rights; as where the agreement for sale was made after the filing of the bill to redeem, no objection having been made to the I right to redeem til) the six months' notice of payment had nearly [expired, - " Where the right to the equity of redemption is in dispute, the lioDuiitv.fltrcf. 1 Vern. 182. ^ -■ . 5 Lloyd V, WaU, 1 Ph, 61. i lloyd V. WaU, I Ph. 61 Pym v. Bowerman, 3 Sw. 241, note ; and aee 2 Hare, 118, note (6). « miei V. Buekland. 16 Beav. 212 ; Jarnen v. Biou. 3 Sw. 234. • i.«, A rr 1022 PROCEEDINGS IN THE MASTER'S OFFICE. p4 o i mortgagee may file a bill, in the nature of a bill of interple praying that the defendants may settle the right between the selves, so that the plaintiff" may not put his money toawroj hand.^ But the court will not, at the instance of a mor direct inquiries to ascertain the title to the equity of redemptio where none of the persons claiming it are parties to the suit : becan it is said,' the mortgagee having but a redeemable interest, if) were paid off", there would be no one to pay the costs of the inquiri Where the administratrix, having bought at Sheriff's sale interest of the mortgagor, paid off the mortgage debt, and, treatin the property as her own absolute estate, afterwards mortgaged til premises : the Court, at the instance of the heir-at-law of mortgagor, directed an enquiry as to whether the property purchased at Sheriff 's sale with the assets of his ancestor, that the amount so applied should be deducted from the amou due upon the mortgage given by his ancestor, and that he shoull be let in to redeem upon payment of the balance.* Per Blake, C. : "As to the manner in which the account is tol taken, it is, we apprehend, quite clear that where an assignmen of a mortgage is taken without communication with the mortgagoi| the assignee takes subject not only to the then state of the accou between the mortgagor and mortgagee, but also subject to all sue! changes as may take place before the mortgagor has notice of th| asBignment." * A mortgagee having filed a bill to foreclose against two riva claimants of the equity of redemption, the Court directed M usual redemption by, and conveyance to, the person prima faM entitled to the equity of redemption, with a rigLi, to the othe^ claimant, at any time before the day appointed for payment, shew himself to be entitled.^ And where there was a conveyano of land, upon an advance of mbney, and a bond to re-convey given by the pretended purchaser, with a condition that at the end of i year, upon payment of the sum advanced, and an additional sn calculated upon the value of money for that tinie, the transaction 1 SlMtboU T BUeoio, 2 Eq Ca. Abr. 173. i WetherUl v. Garbutt, 1 Sm. & Gif. 124. ' 8 Warren v. McKeiaie, 1 Grant, 436. 4 Matthetct r. Waltoyn, iWea. US. ^ . ^ 6 Bamiay v. Thornton, 8 Grant, 872. OF REDEMPTION. 1023 I held a mortgage, notwithstanding the instrument expressed it 1 1 sale and purchase ; but the bargainor, at the expiration of the surrendered the bond to re-convey to the assumed purchaser, took from him a lease of the premises. Held, that this ated as a lease of the equity of redemption, and a bill to ijeem was dismissed with costs, but without prejudice to another [being filed, because it appeared, though not relied on by the «nt bill, that the bargainor was at the time in difficulties ; that > assumed purchaser was supplying him with money, and paying ney for him to the Sheriif ; that their relative positions were kch as to give the assumed purchaser great influence over the gainor; that the inadequacy of price was gross, and that the letended purchaser's conduct was exacting and oppressive ; and I it had been shewn that the assumed purchaser held other secu- for the advance, as if the amount of it was included in a ittel mortgage, which he held against the bargainor, his right (redeem would have been clear.^ And where there is a dispute I to the ownership of the equity of redemption, the decree in a ^closure suit should usually contain a direction to the Master to quire as to the ownership before a day is appointed for payment [the mortgage money. ^ Where the owner of property mortgaged it to "W., and then an undivided half to J., subject to the mortgage, and a later date executed a mortgage on his remaining undivided to B., who afterwards obtained an assignment of the first 6 : Held, that the representatives of J. were not bound to eem both mortgages, but only the mortgage to W.' I Adverse claimants of the equity of redemption cannot generally |je as co-plaintiflfs,* because no decree can be made as between m ; nor can they sue under an agreement, or an allegation of agreement, to divide the .property, because such an agreement I illegal concerning an estate of which the contracting parties are lot in possession. But where the safety of the security itself is the Meet of the suit, the mortgagee and the persons entitled to the inity of redemption may sue together as co-plaintiffs ; as in a suit liJi'ntT, Pottmon, 8 Grant. 417. IjCai/leyv. Hod^ 4^ 1026 PROCEEDINGS IN THE MASTER'S OFFICE. offer to redeem him. Therefore where estates had been convev* upon trust to sell, and pay off the mortgage debt, so as to exoneri the mortgaged estate, and it was charged that the morto claimed an interest in the trust estate, it was held ^ to be xamm sary to offer to redeem him. And the prior mortgagee, if hebej necessary party in respect of accounts, may waive the redemptia of his security, in which case the decree should be prefaced by i statement that he consents not to be redeemed, and to allow i debt to remain a charge upon the estate.' •'•V. ■■ • ' :. TilvThe rule that a mortgagee of several estates may refuse be redeemed in respect of one unless redeemed in both, does nol apply to a case where a sale is asked by a prior incumbrancer.' But on the re-hearing of this case,^ it was held that in a snit fo^ the sale of mortgage property, it appeared that a mesne incn brancer held a mortgage on otlier property of the mortgagor, thj Court ordered an account to be taken of what was due on boti securities, and, in default of payment, a sale , but intimated, thij in the event of a sale taking place, the premises would be conveyei to the purchaser relieved of any lien of such subsequent mortgagei A mortgagee of lands not patented purchased them at Sheriff'] sale under execution against the mortgagor, to whom the lands 1 been conveyed at the instance of the execution creditors, in ordej to enable them to take the lands in execution during the absenq of the mortgagor from the country, and the mortgagee then claimei to hold the lands absolutely. Held per Curiam (Spragge, V.C] dissenting), that the estate was still redeemable.^ n The owner of an equity of redemption filed a bill ir the mortgagee's title on the ground that no money was advanc but the Court being of opinion that the evidence was sufficient! establish the fact of payment, directed, at the option of the defen^ ant, that the bill should be dismissed with costs, or the usual deer made for redemption upon payment of what should be found do upon a reference to the Master.^ In a suit to redeem, the plsintij 1 Dalton T. Hayter, 7 Bear. 81S. 2 Lord Remington v. Bouverie, 19 Beav. 39. 8 Merritt v. Sttphetuon, 6 Grant, 667. .. i 7 Qrant, 22. 6 Aitehiton v. Coombi, 6 Grant, 643. 6 Btdton T. Smith, 10 Grant, 202. OF REDEii.TION. ■>!■ 1027 several grounds for r'elief \ai;h he failed to establish, lilthough he succeeded in showing a right to redeem, which right Ithe defendant had contested ; the Court, under the circumstances, litfased costs to either party up to the hearing, and gave the defend- lint the subsequent costs of a redemption suit where the right to liedeem was admitted.^ . • If the bill be against the grantee of an annuity in possession of |the estate, for an account of rents and profits, the plaintiff must to redeem on the terms of the annuity deed ; or, if time have jiltered the circumstances, then upon^ such equitable terms as the leoiirt shall direct. But it was held by Lord Lyndhurst, C. B., in li Boit to recover possession of an estate mortgaged to secure a Igambling debt, that no offer of repayment of a part of the debt, li^ch had been bona £de advanced, was necessary, because, as in Ithe ca-:*) of the prayer for an account, the filing of the bill amounted Iton submission to such decree as the court should think fit to make.' The offer to redeem, or other equity offered by the bill, should leorrespond with the decree to which the party is entitled. * If the Ider be made by the mortgagor, in a suit by the mortgagee, not Itteking foreclosure but to have his security perfected, the offer linnst extend to payment of all that the mortgagee claims to cover |by his security, in case he establishes his right ; otherwise there I be no foreclosure in case of default in payment, in pursuance [the offer ; and in a suit in which that decree cannot be made, he amount of the mortgagee's debt may not be brought into And as a general rule, an offer gratuitously made by the bill or Bwer cannot be recalled." And a person who offered to redeem, ier the belief that the debt, to which the offer applied, was all &t was secured on the estate, was held to his offer, though it oved that the property was subject to more debts than it was Qith, and though he submitted to be foreclosed. ^ But the offer 1 1 >)«eO ». OravUy, 1« Grant, 628 J IwMI V. White, 2 Y. & C. 16 ; Burrou>e$ y. MoUoy, 2 Jo. & Lat. 621. ' ««rt«r». i^teocjfc. Younge, 861. ) ttDonimgh. v SketobrQge, S Ba. & Be. 666. \\9ngmr.09rrard,4Y.ti 0.119. jiSw 1S4; BatuUgatti v. Battine, i 8w. 16e, note. • '«», I9rmv Adinru.-i Cham. R. 134. J A'lwpu V. Bower, 17 Uraiit, ';9S. . « Slrtckan V. Devlin, I Cham. H. 8. I • ^ I. / 1030 PROCEEDINGS IN THE MASTER'S OFFIoiJ. three months' further time before the co-defendant could obtain final foreclosure against them. ^ ., ,, In suits of foreclosure, where there are several judgment crediJ tors, the decree should give the creditors successive rights oi redemption, although very short periods must be fixed for thj purpose. Semhle, that after payment of what is payable upon mortgage payable by instalments, pursuant to the Orders of 1853] it is irregular to take any further proceedings in the cause until after another instalment falls due.' A mortgagee with power of sale, covenanted th«\t no sale, oi notice of sale, should be made or given, or any means taken i obtain possession of the mortgaged premises, without first givind three months' notice to the mortgagor, demanding payment. Hela that this did not prevent him filing a bill to foreclose, without firg| giving such notice.' A mortgage was m. de for £1196, payable £200 in four months] £200 in eight months, and £224 in twelve months ; the residue all later periods. The third instalment was paid. For the first and second instalments the mortgagor gave two promissory notesj bearing even date with the mortgage, and took the following receip from the mortgagee : " Received from R. B. W. his notes for £20 at four months, and £200 at eight months, from Ist June last, in full for the same amounts due on a mortgage made by him to mej maturing at same date ;" and the following endorsement was mada on the mortgage :" Received from R. B. W. two notes of bandj endorsed by L., for £200 each, to complete the two first paymenti on the within mortgage." The notes were not paid at maturityj and in a suit by the assignee of the mortgagee to foreclose in default of payment of the first and second instalments, HeU, thai the right to recover upon the mortgage was only suspended, an^ not discharged by the taking of the notes.^ The bill ought to be expressly framed for the relief sought at m hearing. If, indeed, the prayer be merely for general relief, anij 1 Ardagh v ITiIfon, t Cham. R. 70. > • i CarroU v. Hopkins, 4 Grant, 481. 8 Lamh v. MeCmrmaek, 8 Grant, 210. • 4 OUtb V. Warren, 1 Orant, 406. " m OF FURECLOSURE AND SALE. 1031 lief sought at m eiieral relief, anij m relief adapted to the case made by the bill be redemption or lixeclosare, that relief will be granted ;^ and if specific relief, to Ifbich the plaintiff is not entitled, be asked, although tlii^ prevents Ithe proper relief from being given under the general prayer, the Icoort will gi re leave to amend by adding parties with the neces- Iftry introductory statements, and praying proper relief: though [lot to the extent of making a new case or putting new matter in liisae. * But if the bill make a case which is inapplicable to or inconsistent with the relief prayed at the hearing, as if the bill eipressly save the rights of a defendant whom it is afterwards lOQght to foreclose, it will be dismissed.' - A person interested in part only of a sum due on mortgage, can- [not sue for foreclosure of a corresponding part of the estate. * His lemedy is to make the other mortgagees, if they refuse to join in his suit, defendants ; upon which an account will be directed of that is due to the plaintiff, and the other mortgagees : and on payment or default, reconveyance or foreclosure will be decreed in the usual way.' Where a mortgagor had executed several mortgages, in one only I of which his wife joined, the proper decree on a bill of foreclosure tgainst the widow and devisees of the mortgagor, is one in the OBoal form against them all, with a declaration that, upon payment of the mortgage executed by the widow, she should, if she chose, be let into her dower. * A mortgagor who holds several mortgages in fee in the same land, one of which is not due, cannot file a bill to foreclose that mortgage with the others.' A mortgagee, who upon the delivery of bills to him in discharge of bis debt, has signed a receipt for the mortgage money, and has deUvered the deeds, but has not reconveyed the estate, retains his right of foreclosure if the bills be dishonored, and there be no eridence of an agreement that the bills were to be taken as an absolute payment,* whether they proved to be valuable or not; and even if the estate be reconveyed, it seems that by analogy to 1 PM ». Clinton, 12 Ves. 4g. * 1 PoUfT. Clitaon, 12 Ve«. 48; Wattt v. Hyde, 2 Ph. 406 ; see Page v Cooper, lo Bear. 806. i Ufufku V. Willioms, S Mac. & O. 688 ; anU see 1 Hare, 636. * Palmr v Earl o/Cariisle, 1 Sim. & t». 423. 5 Dattnport v. Jatnet, 7 Hire, 249 J Ttti 1. Catruthen, 2 Y. A 0. ^ '. C. 31. 7 IkiMo V. Collar, 1 Grant, 147. 8 Teed v. Carruther», 2 Y. A( 0. 0. 0. tl. 1032 PROCEEDINQS IN THE MASTER'S OFFICE. f «i p the right of a vendor,* who has been paid for an estate by bin which are dishonored, and b'^s signed a receipt as for caBb,t)) mortgagee would retain a lien on the estate for his debt. If trustees, authorized to raise money by mortgage, have alaj authority to give receipts (and such a power is implied where the have power to change and convert the securities,)^ it is not noctal sary, for the mortgagee's title to foreclosure, to show that th money reached the hands qf the trustees if they have given receipt, or that it was duly invested, though it be alleged that th money did not reach their hands, where the mortgagee was no part] to the misapplication. * And where the original mortgagee is nJ bound to enquire, his assignee, being a purchaser with the legal estate, is not affected by such a misapplication. ' I The mortgagee, as a general rule, has the right of pursaisg a| the same time all his legal and equitable remedies ; be may at ono foreclose, take possession of, or bring ejectment for the estate, au| may sue the mortgagor on his bond or covenant. * A derivative mortgagee may even bring at the same time U different suits for. redemption or foreclosure, with which the cou will not interfere, though they be carried on by the same solicitoij except by making the plaintiff pay costs for the vexation. ^ And il it be not done to accumulate expense, the mortgagee may sue foj foreclosure, after a decree for redemption ' [until the arrival of thj day fixed by that decree for payment ;] though it seems that if aa account havg been directed by consent in the redemption suit, and the plaintiff have undertaken to pay what should be found due, th| mortgagee, proceeding on the undertaking, cannot avail himself ol the right of foreclosui-e,'^ which, according to the ordinary practio follows default in payment. But there may be cases of fraud or special contract, or othei particular circumstances, in which the court will restrain the exerj '\^.i'l ;, .'■ ■ ' 1 See FraU v. Ellis, 16 Beav. 351 ; Oranl v. MilU, 2 Ves. & U. 3M ' i Wood V. Harman, 6 Mad. 36S 8 Looke V. Lomag 6 De O. & H. 826. ,. _ ,,,j 4 Bum«ll r. Martin. Douu. 417 ; Barker v. Smack, 3 Beav. 64 ; Coekell v. Bacon, 18 Bat. iMi Loekhart v. Uardy, B«av. 340. 6 Per Lord Hardwieke, 1 Ves. 646. 8 Shepherd v. TitUy, 2 Atk. 848 ; and see 4 T & C. 128. 7 Dunttan r. PatUrion, 2 Ph. 841. OF FORECLOSURE AND SALE. , 1033 I of this unlimited right. Tlius the mortgagee's action of eject- nt has been stayed (on security being given to redeem) by reason [iotangled accounts, where a 6uit for an account was also pending st the mortgagee, and it wts considered beneficial to all parties II keep the possession in suspeniie in the meantime.* And where I vendor of an estate had taken a bond for the unpaid purchase oney, he was ordered to elect i:i which court he would proceed.' The mortgagee may also lose liis remedy by laches as against a «r incumbrancer without notice, whom he sufters to enter and re- lin possession of the estate for many years, without requiring any ijmenton account of his security, or anv admission of title ; and nJer such circumstances a bill, filed to set aside the later incum- Qcer's security, will be dismiss 3d.^ Where an advowson is the subject of the mortgage, the court will I restrain the quare impedit of the mortgagee upon the mort- or's offer to redeem, and will compel the resignation of the mort- «e'8 and the presentation of the mortgagor's nominee : for the bortgagee cannot make any legal profit of the right of presenta- w- ■;.< So a mortgagor has a right to be protected against a double ac- DDt of the amount due on the same mortgages, and a mortgagee I therefore restrained from proceeding in a foreclosure suit, in a »loiiial court, begun after a decree directing inquiries and accounts lan English suit for redemption ; all the parties being in England, d the facilities for taking the accounts there being greater ; but be plaintiff in the English suit was put upon terms to submit to nch orders in the colonial court as the English Chancery should hiiik reasonable.^ And the mortgagee has been restrained from ling at law^ on his collateral security, where the title deeds ; out of his power, he was unable to re-convey the estate, the noimt due being directed to be ascertained and paid into the bank, !ll V. Bacon, 18 Bmt. IWJ .\Mi\. BfloeA, 2 Atk. 843. S hrktr y. Smack, 3 Beav. 64 ; sec 1 Ord. May, 1«30 ; 16 Ord. 8 May, 1345, m. 20, 21 ; 51 Ord. id. iSnrlt \ Colt, 1 Y. fcC. C. U 36. 4 i«i*ttr»l V. DawUng, 2 Vern. 400 ; Jory v. Cox, cited id. note ; and see Oardiier v. Grijlth 2 P. ' «!in, 403. 5 Bickjord V. Kemblo. 1 Sim. & St. 7. • ScUkr. SW«, IStfli. .:. Ui. 176 ' i ■" ■■-■' .. ■ ■•'•.■ . * •• » t > 15 1034 PROCEEDINQS IN THE MARTER'S OFFICE. there to remain until the title deeds could be secured, and a veyance had, ,.. , But the mortgagee will not be restrained from selling, on the plication of an incumbrancer claiming to restrain him from doin by virtue of a contract which he is at the same time impeachii As where ^ the assignee of a puisne mortgagee, whose assignor privy to a transaction by which the first mortgagee's rights wi admitted, had filed a bill to impeach those rights, and attempt stop the sale on the ground, that by the same transaction the mortgagee had limited his power of sale. Nor will the court interfere with the mortgagee's action on covenant, on the ground that a contract still incomplete has madr by him, to sell the estate for a larger sum than the amount c on the mortgage.' The trustee of property belonging to a public body, being a mo gagee of the same property, under an instrument duly executed I pursuance of the trust deed, and for the purposes of the trast, not be restrained from exercising his mortgagee's rights, and in j doing irom using the property in a manner opposed to the tr under which he acts.^ A mortgagee who makes advances to trustees under a trust | raise money by mortgage or sale, is not an object of the trust, that the trustees were thereby enabled to make him a good securij He has all the remedies of a mortgagee, but nothing more ; andev if the trustees have power to sell after raising money by ma gage, the mortgagee cannot call upon them to exercise their poweJ The mortgagee's right to enforce his securities, is not confined I the institution of a suit which shall put an end to the mortg He may »ii80 at any time, until the arrival of the day of paymd fixed in a redemption suit, file a bill to compel a conveyance I 1 CoekeU v. Bacon, 16 Beav. IftS. S WHUi V. Levttt, 1 De O. & S. 892 ; but the report is not very clear. The prayer wls tor the aale as well ai* the action, and the common injunction is said to have been trranted in thowtei The Vioe^hanceUor'B observations appear to refer only to the action, but the whole injunctiun i^ have been dissolved. S AWtrnty-Gtneral v. Hardy, 1 Sim N. S. 33& 4 Palk V. CliiUun, Vi Ves. 49 ; and see Page v. Cooper, 16 Beav. 396. OF FORECLOSURE AND SALE. 1035 elf of the legal estate, or otherwise for the protecting of his grity, and this may be done even after an actual tender to him Ifthe amount alleged to be due, if the proper notice of payment I not been given ; and even after notice, if the sum tendered be eidered insufficient through at the peril of costs if it turn out I a proper amount was tendered.* I And in such /i suit, the court will not enter into the question of > amount due upon the security, unless, it seems, there be such a nplete offer by the defendants to pay all that shall be found due, Ifthe whole of the mortgagee's claim be established, as will enable i court to decree a foreclosure in case of non-payment in pursu- siee of the offer. i So the mortgagee of a remainderman who has a Vested (but not (one who has only a contingent) * interest, and whose title is clear, I free from reasonable cause of litigation, may sue the tenant for > for production and ins]^ection of the title deeds, that the plain- Tmay be enabled to deal with his property to the best advantage ; lifit be suggested, that the production is required for an im- oper purpose, the burden of proving the assertion lies on the leraon who resists the production.' li The mortgagee may also proceed generally against the assets of fthe deceased mortgagor, in which case, he may,* and ought," to i on behalf of himself and all other creditors of the mortgagor, it was formerly considered, that the conflict between his bterests and that of the other creditors was a bar to that form of A mortgagee may foreclose without taking possession, which the irt will never compel him to do, because it makes him liable to an lunt;^ but if he. have been in possession, it is proper to state the itin a bill, and the omission to do so may affect his right to Mt.' ... J 1 Srujeon v. Oerrard, 4 Y. & C. 119 ; Malone v. Oeraghty, 8 Dru. k Ww. 246 ; see «1m Sporle v. Ifkpiu 24 L. J., Ch. 789 ; 20 Beav. 607. ■ iSaely. Ward, 1 Mad. 322. j bttii V. Earl of Dytart, 20 Bear. 405 ; 19 Jur. 743. _ J «Mv V. Smith, 2 Hare. 23i> ; Skey v. Bennett. 2 Y. A C. C. C. 40!i ; BrockUhunt r. Jeatop, 7 Sim. tm.Panonty. Westbrook, 5 Bcav. 188. I ' miry. Ormond, 1 De O. & 8. 428. 5 1 Sim. 4 St. 382 ; naiken v. Hall, Kxch. E. T. 1838- cited 3 Y. & 0. 606. Hyeii. 108. ' , , , _ .^ ,„ « Bkiangton v. Hanoood, T. Ji B. 477. i if- 5: li % .1086 *i >* ( OF SALE. 10S7 mortgage.* To remedy the inconveniences pointed at by the Dwllor in this case, the Statute of Ontario, 32 Vic. ch. 10, was ri It reiieals sec. 5 of ch. 87, Con. Stat. U. C, and enables tutors or adiiiinistratorH of mortgagees to release the land, to the security, and to convey all the legal estate in the mort- t\ promises. Section Yl.—Of Sale. , ; The Court of Chancery in England is empowered by statute,* in ivsuit for foreclosure of the equity of redemption in any mortgaged Bperty, upon the request of the mortgagee or of any subsequent tumbrancer, or of the mortgagor or ; ; y person claiming under leui respectively, tt) direct a sale of such property, instead of a closure, on such terms as the court shall think fit ; and, if the art shall so think fit, without prev asly deteniiining the priorities f incumbrances or giving the usual or any L me to redeem. Provided, at if such request be made by any siu;h subsequent incumbrancer, rl»} the mortgagor, or by any pergon claiming under them respec- irely, the t\>urt shall not direct any such sale without the consent fthe mortgagee or the persons claiming under him, unless the party ikitij,' such request shall deposit in court a reasonable sum of oney, to be fixed by the court for the purpose of securing the iiformance of such terms as the court shall think fit to impose on i party making such request. The Imperial statute 16 & 16 Vic. ch. 86 gives no absolute right tthe parties to require a sale, but a power to the court to decree it, I any suit for foreclosure of the equity of redemption in any mort- property. The object of the act is to avoid the delay and ense occasioned by successive redemptions, and the court has a siderable discretion in applying its power ; * which it exercises litha view to the general benefit of the persons interested, without ^juiy to any of them : a sale has been accordingly refused upon ndence, that the land was likely to iiy;rease in value, and would t fetch its value upon an immediate sale ; so that if it were sold, iDj'Jiy would be done to the mortgagor and the puisne incum- 1 mwn V. Byen, 9 Grant, 672. JUjUVlo. 0.86,8.48. .-W.^c;^ • ' 1 -& 4 1 $ - •it 1 Vi \^^ i: % ■It p is: 1038 PRQCEEDINQS IN THE MASTER S OFFICE. brancers.^ The court has a;lso expressed reluctance to order a unless the complication be such that the common decree cannot conveniently worked ; and therefore ' refused it in a case wh there were three mortgages, and the sale was sought b" tl subsequent incumbrancers only. But a complicated state of does not seem to have beeiT since thought a, necessary condition the order of sale.' A sale has been directed upon the petition of the insolvent mort gagor, and some of his creditors, after a decree by which the insolvei and his assignee had been foreclosed without any opportunity redeeming ; and where a puisne mortgagee, after buying up t^ rights of the assignee and of other incumbrancers, had contracted I a sale without the authority of the court * ^ , ^ Orders 426, 428 and 429 of the Consolidated General Orders bai been framed from this statute. Order 426 declares that, " Instead foreclosi re the bill in any mortgage suit may pray a sale of the mon gaged premises, and that any balance of the mortgage debt remai^ ing due after such sale may be paid by the mortgagor, and the san may be decreed accordingly," Order 428 declares that " The Cou may direct a sale of the property instead of a foreclosure of tlj equity of redemption, on such terms as the Court thinks fit ; the Court thinks fit, without previously determining the priorities ( incumbrances, or giving the usual or any time to redeem." Order 429 directs that " If the request for a sale is made by a su^ sequent incumbrancer, or by the mortgagor, or by any person claiD ing under them respectively, the party making the request is deposit in Court a reasonable sum of money, to be fixed by tlj Court, for the purpose of securing the performance of such terins i the Court thinks fit to impose." And by Order 430 it is direcb that " If before, or upon the deposit to obtain a sale being ma the plaintiff prefers that the sale be conducted by the defendant dj siring the sale, he may so elect ; and he is thereupon to notify defendant of such election. The notice may be to the effect forth in Schedule R." And Order 431 provides that "Upon 1 Bunt V. £rur«f, 16 Beav. 872. t Hiom$ V. HoUom, 16 Jtir. 1077. 8 Se« B«Uamy v. Cockle, 18 Jur. 4KS ; Wiekham v. Jfieholion, 19 Bmv. 88. 4 LasUtt V. Cliffe, 2 Week. R. 636 ; 2 Sm. A O. 278. OF SALE. 1039 ^intiff filing with the Registrar a note of such election, and proof faervice of such notice, the defendant making the deposit is to be ititled to a return thereof " . . . « r The orders from which these are taken were not promulgated Btil 1853, and there was up to that time some difficulty in deter- Qg in what case a sale would be deci*eed. These removed the liculty, but the remarks made by Blake, C, in Meyers v. Har- on^ will be read with interest. ' - An order of 29th June, 1861, provides, "Where, upon a bill for Josure, a sale is asked for by a defendant, it shall be competent the Court to require as a condition that the party asking the Qe shall conduct the sale at his own expense, dispensing in such I with a deposit, if the Court shall think fit." • This order does not appear in the Consolidated General Orders, nt it is presumed to be in force under Order 2 of these orders. It I held under the order of June that it did not entitle a defendant I insist upon a sale instead of a foreclosure against the consent of ! mortgagee, without paying in the usual deposit upon his under- king the conduct of the sale. The object of the order was to ible the Court to grant the defendant that indulgence upon the sent of the plaintiff in cases where the plaintiff desired to bid at A subsequent encumbrancer is entitled to a sale upon the usual s, where the plaintiflf is an equitable mortgagee by deposit of de deeds, as well as where the mortgage is by deed.' Where the decree is for sale of mortgaged premises the Court will on default grant an order of foreclosure ex parte.* On Btion for a decree, Spragge, V.C., decided that infant defendants 1 not entitled, as a matter of course, to an enquiry as to whether ksale or foreclosure is most to their benefit, but that some ground < be shown, and he directed an affidavit to be filed.* There ap- Jtobe some difiference of opinion on this point — the general un- I^'JWiv. ffofri»on, 1( Iftlflofv. ro«ter,8Qr llKtrrr.Betiee. 12 Ontn Ormnt. 449; decided in 1850. , J Grant, 606 Behee, 12 Grant, 204. I r'^ '• HeDomld. 1 Ghamh. Rop. S36. • QnOm V. Davit, 2 Chamb. '»«p. 24. -:--■■ f: _> ,.,77, !. it-:,'' .' f 1040 PROCEEDINGS IN THE MASTEIiS OFFICE. ^ 5: derstandinj^ in the profession being different from the view expressed.^ In this country a judgment creditor is etititled at) option to a decree either to sell or foreclose the estate of his debtor] In a later case, however, it was held that where the heirs of tH mortgagor are infants and a foreclosure suit is instituted, the rule the Court is to grant a reference, as of course, to enquire whether! foreclosure or sale is more for the benefit of the infants. But, if a davits are filed to satisfy the Court, as to the proper decree, orift^ guardian consents, the reference may be dispensed with,' In asu for the sale of mortgaged property it appeared that a mesne incud brancer held a mortgage on other property of the mortgagor ; A Court ordered an account to be taken of what was due on both curities, and in default a sale, but in the event of a sale taking pla the premises would be conveyed to the purchaser relieved of anylia of such subsequent mortgagee.* Where a second mortgage does not. notice the. first, and contaid absolute covenants for title, but there is no allegation in the plead ings, and no other evidence than the mortgage thus affords tbi the mortgagor did not inform such second mortgagee of the firj mortgage before the execution of the second, the Court will assun such to be the case so as to vest the equity of redemption in sucj second mortgagee under the Statute 4 & 5 William and Mar ch. 16, sec. 3.^ • The following are the provisions of the Statute referred to i this case: b' ■•'■ ': :• , ; It has been provided by statute,® that if any person shall boj row any money, or for other voluntary consideration give or any judgment, statute or recognizance, and shall afterwards borr any other sum from any other person, or become indebted for othl valuable consideration, and for securing repayment or dischard thereof, shall mortgage his, her or their lands or tenements,! any part thereof, to, or to any trustee for, the said second or oM 1 Note by Reporter to Graham y. Davis. 2 Monaster v. Noble, 6 Grant, 681. 8 DudUy V. Berezy, 13 Grant, 141. 4 Merritt v. Stephenson, 7 Grant, 22. 6 Meyers v. Harrison, 1 Grant, 449. 6 4 & 5 W. >« M. c. 10, s. 2. ■»'• li ''•J-ii"t. -Mj ,.-.ii..^use the same to be or discharged by record ; then all equity of redemption of the said lands and tenements, as against the mortgagee, his repre- sentatives or assigns, is taken away from the mortgagor, his representatives and assigns, and the former may hold the mort- gaged property as agaidst the latter for such estate and term Ikrein as was granted and settled to the mortgagee, as fully as if tlie same had been purchased absolutely and without power of redemption. The like penalty has been attached in the case^ of a mortgage by a mortgagor of the same lands or tenements, or any part thereof, which he has already mortgaged as a security for money lent, or which has otherwise accrued or become due, or for other valuable consideration (the former mortgage being in force and not discharged,) and without discovery of the former mortgage or mortgages, to the second or other mortgagee, in- writl-^ under the hand of the mortgagor. But the act expressly reserves^ the of redemption of subsequent mortgagees. Prima facie a mortgagor is entitled to six months to pay amount I o( mortgage money ; to induce the Court to exercise the discretion [vested in them by the General Orders, of directing an immediate le, or a sale at an earlier day, some special ground must be Where a suit is brought to enforce the sale of mortgaged pro- Iperty agamst the mortgagor and his assignee, the order for payment U46W.4M. (1.16,8.8. ! li 8. 4. . {Rfuy V. PuUer, A Gruit, 198. The order referred to is sec. 2 of Order 82, of June, 1868, which I ' »™«r to Order 428 of the Con. O. O. 4a i" '-7'" W im"" 1042 PROCEEDINGS IN THE MASTER'S OFFICE. it i i5 » •SJ 55 p * of any balance of the mortgage debt which may remain due ail Buch sale must be against the mortgagor, and not the assignee.' There was a diversity of opinion among the Judges of our Coit on this point, which was finally settled by this case. The Ori 82, of June, 1853, section 2, is the same in effect as No. the Consolidated Orders. A mortgage contained a covenant that the mortgagee would i lease any portion of the mortgaged land which tlic niortc;,J might sell during the continuation of the mortgage, upon paynid of d6200 for every acre to be released. An assignee of the mot gagor made a general payment upon the mortgage, and afterwai:! upon selling a portion of the land, demanded a release thert^ from an assignee of the mortgagee under the covenant contain in the original mortgage. Held, that the benefit of this covcnn would pass to an assignee of the equity of redemption, but tl mortgagor or his assignee could not claim a release from tlie moi gagee, unless the latter received the stipulated amount per acj upon the sale of the particular portion of the land required to released: no general payment by a mortgagor on the mortgaj would be Bufl&cient.^ When a mortgagor becomes Insolvent, the mortgagee is compelled to go in under the Insolvency Act of 1864. Per Moni V. C, ** A mortgagee is not obliged to file a claim, but is at libed in lieu thereof, to exercise the power of sale contained in his moi^ gage.* '' , ; .■•■.,■ - ■■;■- ■- ■■, ' ; ' ■■■' e G. & S. 736;/onMv. 2 Tipping V. Power, 1 Hare, 405; Footner v. Sit. , '> De G. & S. 736; see Toft v. Sfq 7 Hare, 1. 3 3 Hare, 38 ; Bote v. Page, 2 Sim. 471 ; Richards v. Cooper, 5 Beav. 3C4. 4 Perry v. Keane, Coote, App. 682 ; Pain v. SmUh, 2 M. & K. 418 ; Moore v. Perry, 19 Jur. 126: V. Bailey, 17 Beav. 582 ; Cox v. Toole, 20 Beav. 145 ; see also Frail v. Ellis, 16 Beav. 351. 6 Featherstone v. Feniaick, cited 1 Bro. C. C. 269, n. 1784 ; Harford v. Carpenter, 1785 ; cited 1] C. 269, n. ; Birch v. Ellames, 2 Anst. 428 ; Ex parU Wright, 19 Ves. 256. But the terms (< agreement may be such as to exclude the right to a legal mortgage ; as where the '.""""J the deposit was held to be only to secure the depositee against any loss which he n"8"'^''| from joining as surety in a promissory note ; and no liability having been incurred, »tj entitled only to have the nature of the transaction and the purposes of the deposit reoor" writing. Sporle v. IVhayman, 20 Beav. 607 ; 24 L. J. (Ch.) N. S. 789. 6 Newton v. Aldous, and other cases cited 2 M. & K. 421 ; and Set. Dec. 211, ed. 2 ; and see Ellames, 2 Anst. 4'.i8 ; Parker v. liousejield, 2 M. & K 419 ; Tylee v. Webb, 6 Beav. 552- OF SAI4E. 1045 opposition to this view, several dicta and decisions are cited [ikte eminent writ^jr.^ One of the former, by Lord Cottenhara, ntthe expression of a shadow of a doubt.^ In another,' the same ned judge is reported to have said, " What right has an equitable by deposit of deeds to ask for a legal mortgage ?" And _ Mr. S|)ence remarks, was cited, witho,ut observation, by Sir L. • dwell, V. C. E.* But this fact does not show that the latter judge meant to express an opinion, that a depositee had no k to foreclosure. It seems clear, that he did not consider this jit to be founded upon the right to caD for a legal mortgage ; for [lately before citing Lord Cottenham, he said that the equitable [tgageehad no right even to require an assignment, adding, "he may for foreclosure, according to some authorities, or for a sale rding to others."^ And it has to be observed, that Lord nham, in citing the decrees for foreclosure above refeiTcd to gh he only decided the collateral question as to the equitable e's right to six^months' time to redeem upon sale, expressed doubt as to his right to foreclosure ; but, on the contrary, dwelt upon his title to remedies, corresponding as nearly as ible to those of the legal mortgagee.® iBut whatever may have been Lord Cottenham's view, the dictum I question appears to be completely met by the authority of Lord I Leonards, who, speaking of a deposit with a memorandum, merely pressing the purpose of the deposit, observed, " How can it be in a court of equity, that he who has an equitable mortgage, is entitled at any moment to file a bill to clothe himself with tgal estate, has not such a right under this enactment as enables I to sustain the present suit ?" "^ It may be observed, that the nark of Sir. J. Wigram, upon which Mr. Spence also relies, that owner of an equitable lien has no right but by sale,^ was 1 made in a suit for foreclosure, but on behalf of creditors ; neither the word " lien " express with much accuracy, the effect of a .)..»' lJSpn»M,Eq.Jur. 792, n. I In Price v, Carver, 3 M. & C. 161. MaMitcalf* v. Archbisliop of York, 1 Myl. & Cr. 667. [ In Jfoorei V. Ckoat, 8 Sim. 616. 1 8 Sim. 616, I S« Parker v. Hmuefield, 2 M . & K. 419. '.' Ste Habm v. GeragKty, 3 Dru. & W»r. 246 I IB Kjipdni V. Pouwr, 1 Hare, 410. ,.-fA •u k. > I r, 1046 I'ftoCEEDINOS IN THE MASTER'S OFFICE. i*i' ^"(1 1^!; r % ■^ 4 • ^ ^ deptJHit of «Jeud« by way of equitable mortgage. In the caKeit ' which decrees for sale were made by the same learned judge, it dJ not appear that the (Juestion was discussed ; and even admittiuct tendency of Sir. J. Wigram's opinion to have been in favour of « and not of foreclosure, as the pro|)er remedy, these decrees do i show that the latter is improper. It is not contended, that fo closure is the oidy proper remedy ; for it is clear, that mere dec tees of deeds have been long held entitled to a decree for sale, i that the relief may ^ be had against the mortgagor himself or i assignees; and not, as sometimes it seems to have been thoug against the representatives only after his death.^ It is sulmitK therefore, first, that it is not settled that a mortgagee by a sirai deposit is only entitled to a sale. It would seem rather that by practice of the court, and, perhaps, also, upon the principles up which equitable mortgages stand, he is entitled to foreclosure I sale at his option ; to the latter by virtue of his equitable charge, i to the former upon the strength of his implied contract for a security. But secondly, where there' is an express contract of tlj kind, there will be no decree for sale, but for foreclosure only, unll the contract be for a mortgage with power of sale, for then tli| may be a decree for sale ; * though such an agreement or power i not affect the right of foreclosure.^ But there can be no sale] respect of a parol agreement to deposit a deed, as such a contn does not amount to an equitable mortgage.^ It seems that the legal or equitable mortgagee has a general M to a sale, where the security is, or is thought to be, scanty;' it j clear, that he may have this relief if he file his bill after the ma gagor's death, stating that the personal estate is deficient; andj the real and personal estate be represented by one person, it is necessary to pray for an account of the personalty in the first 1 King V. Leach, 2 Hare, 67 ; Jordan v. Jmtes, 2 Ph. 170 ; Whitworth v. Oaugain, 1 Ph. 729 ; 3l| 416. 2 Meaux v. Ferne ; Spring v. Alien, cited 2 M. & K. 422 ; Biutel v. Ruitd, 1 Bro. C. C. 259 ; Milk Woods, 1 Keen, 16 ; Pain v. Smith, 2 M. & K. 417 ; King v. Leach, 2 Hare, 57 ; and seeSM I 161 ; PraeoU v. Tyler, 1 Jur. 470 ; Tipping v. Power, 1 Hare, 406. 8 BrockUhurit v. Jettop, 7 Sim. 438 ; 2'V. & C. 730. 4 Ligter v. Turner, 6 Hare. 281. 5 Perry v. Keane, Coote, App. 582. 6 Sx parte Coomie, 4 Mad. 240. 7 Per Lord Hardwlcke, 3 Sw. 208, n., Wiaetnan v. Carbonell. where, although there ««9 "i ruptcy, the sale was upon a bill in equity, the security being "deficient;" 1 Eq. Ca. Abr.Sll 1 general right, where tne security is scanty, is perhaps not qurte clear. In Danhtohod v. Bi V. Courtney, 1 Cham. R. 68 ; but now a judgment is not a lien, though nV''"' "Kainst lands is, and therefore none but.^./a. creditors are made parties in the Master's Office, « StOkr V. Sheppard, 12 Grant, 468. BLl:.,i«. tS'i 1052 PBOCEEDINQS IN THE MASTER'S OFFICE. '■"^■-l; \0 Of the Mortgagor. And, first, as to the mortgagor himself. He must be a party to every suit in which the question of redemption arises betweon mortgagees ; because, after giving liberty to the puisne mortgagee to redeem the first, the decree is, that the former, in his tur" mm be redeemed by the mortgagor ; in default of which the latter shall be foreclosed. But if he be no party to the suit, his right ofl redemption will remain open, and the first mortgagee will bel exposed to another suit.^ ■5 P [I The presence of the owner of the equity of redemption is also! necessary, where part of the estate, which is subject to the first mortgage, is not comprised in the security of the second mortgagee, and even where the equity of redemption of the excluded part is no longer in the hands of the original mortgagor.^ For the prior] mortgagee must be redeemed entirely, or not at all ; ' and the cub- sequent mortgagee of part of the estat'e, upon paying off the whole! debt in obedience to this rule, steps into the place of the other! as mortgagee of the whole estate, and thereby, of necessity, acquires the right, and incurs the obligation, of bringing the owners of that | estate before the court. The rule is the same, where the mortgagee holds securities upoD| distinct estates, and even for distinct debts of the mortgagor, whether the securities be by the same or by different instruments, and whether redemption be sought by an incumbrancer, or by the! owner of the equity of redemption of part of the mortgaged estate j or of one of the estates separately mortgaged.* . And the mortgagor of another estate as a collateral security is a necessary party to a suit for foreclosure against the principal mort- gagor by virtue of his right to redeem, and thereby to prevent hisl own estate fi'om being burdened to a grot*ter amount than tliel '■ \ ,- ■ • _. ■ ^ I 1 Fett V. Brmon, 2 Bro. C. C. 276 ; PaXk v. Clinton, 12 Ves. 48 ; and see Bamhottom v. Waau, CoottI on Mort. App. 576. ' I 2 PaVc V. ClinUm, 12 Ves. 48. . j j «.,«»l 3 PaVi V. Clinton ; see also Jones v. Smith, 2 Ves. jun. 372, and cases there mentioned ; ana namri eroftv. Crockett, 'ZU. L. C. 239. . m ■ J 4 Iraon v. Dmn, 2 Cox, 426 ; CholmondeUy v. Clinton, 2 Jac. * W. 134 j E» parte Carter, AmW. '*^l OF THE MORTOAGOIt. 1063 ambottom v. WaUU, Cootel Ltate of his principal is insufficient to satisfy.* But the surety is not a necessary party wit ere, being bound by a personal covenant j only, he has no security on the estate.^ ' ' But our Order 427 provides that *' Where any person is surety I (or the payment of a mortgage debt, such person may be made a party to a suit for the sale of the mortgaged property, and the relief specified in Order (426,) may be prayed against both the mortgagor and his surety, and the same may be decreed accord- ingly'' A mortgagor conveyed part of the mortgaged property to a pur- I chaser, the mortgagor covenanting against incumbrances ; and the mortgagee subsequently released the part so sold from his mortgage. Md, that as this release was in accordance with the mortgagor's own obligation as to that part, it did not affect the mortgagee's right to recover the mortgage debt, or his lien on the rest of the I mortgaged property.^ And where a mortgagee and mortgagor sell and convey part of the mortgaged property, without the concurrence of a person to whom subsequently to the mortgage, the mortgagor had sold the remainder of the property, and whose interest was known to the mortgagee, and the mortgagee covenanted for freedom from incum- brances. Held, that the mortgagee having thereby put it out of his power to reconvey the whole of the mortgaged property, he j could not caii on the owner of the remaining portion for payment ofthe balance of the mortgage money. This rule does not q,pply 1 where the sale is under a power contained in the mortgage, or where the mortgage is of chattels which a mortgagee has a right to sell ' without any express power. But it applies to a sale under a decree I in a suit to which the owner of the unsold portion was no party. l^liere the mortgagee's right to claim a lien on the unsold portion has thus been put an end to, it is not revived by his two years I afterwards obtaining the consent of the first purchaser to a recon- veyance on payment of the mortgage money.* 1 Stofei V. CJ#ndon, 3 Sw. 160, n. ^!>fvt(>n\. Earl of Egmant,^ Him. B7i. 3 Crawford v. Arynour, 13 Grant, fi76. ♦ . ' 4 eotfio»»d V. OorftttM, 13 Grant, 578. V .* - :k 1054 PROCEEDINGS IN THE BIASTER'S OFFICE. <% •5 P Order 439 provides that *' Where a bill is filed by a subseqneni incumbrancer seeking relief against a prior mortgagee, such mort] gagee must be made a party j)revious to the hearing of the cause." And Order 440, that " Where the plaintiff, prays a sale or foren closure, subject to a prior mortgage, the prior mortgagee is not to be made a party either originally or in the Master's office, excepi under special circumstances to be alleged in the bill." Where there is only one principal and one surety both must b^ made parties to a bill for foreclosure or sale.^ The mortgagor must also be a party to a suit, in which thj validity of the mortgage is contested.^ If the estate -of a married woman be mortgaged, and the righi of redemption be reserved to her and her husband, or either oi them, she must be made a party.' Wlien the wife of a mortgagor has joined in the mortgage to ba her dower in favour of the mortgagee, it is not improper to makJ her a party to a suit to foreclose the mortgage, although the conj veyance contains no express limitation of the equity of redemptioij to her. * ~ But it was subsequently held that to a suit for the foreclosure a mortgage, in which the wife of the mortgagor has joined to baj her dower, the wife is not a necessary party, and, if made a dcfendl ant, the bill as against her will be dismissed with costs.'' If the tenant for life of a mortgaged estate, mortgage his life inteij est for a term, if he shall so long live, with a power of sale, he is 1 necessary party to a bill for redemption of the original mortgagi brought by a purchaser under the power of sale, notwithstandinl the smallness of his interest; because the mortgage term waj carved out of his interest in the equity of redemption.*' If the mortgagor have conveyed his equity to a subsequent mor gagee, the consideration for the sale being the amount due on tlij 1 CoeMum V. Gt'II««!pie, II Grant, 466. " 2 Thompton v. Baskenille, 3 Rep. in Ch. 216. 3 UUl V. Kdmonds, 6 De O. & S. 60S. 4 Saunderton v. Vatton, 1 Orant, 349. 5 Moffalt V. Thompton, 3 Grant, 111. 6 0unt*r r. jracI«to, 6 Hare, 238. ^ rn OF THE MORTGAGOR. 1055 wTeral mortgages, and payment thereof by the purchaser, the I lulance being applied to the discharge of the purchaser's own debt ; a clear intention be shown that he is to take the estate with the debts, his own debt is destroyed ; and he being I in the place of the original mortgagor, may be foreclosed without {he presence of the latter.^ ., , • , If the mortgagor or owner of the equity of redemption become I bankrupt,^ or insolvent,^ he should not generally be made a party; for his whole interest, and, therefore, his right of redemption, will I be bound by a decree agaist his assignees, and if they release the ttity he cannot redeem. And charges of fraud, not particularly I iirected to the matters upon which relief is sought, will not make [the mortgagor a less improper party ; nor will a general charge several defendants (of whom he is one) of possession of Ikuments.* Such a charge will be referred to a possession by the defendants according to their rights and interests. And even insolvent, having been made a party, be not dismissed, he eannot appeal, though a right of redemption was given him by the kree, and though he allege that there is in fact a surplus.^ To a suit of foreclosure againM the assignees of a bankrupt Imortgagor, the bankrupt is not a necessary party .^ Per Blake, C. : 'Upon looking into the authorities, we are of opinion that the Iplainttff has pursued a proper course in not making the bankrupt Imortgagor a party ; and that, according to the cases of CoUins v. |Siiri«y,^ Siwjleton v. Cox,^ Cash v. Belcher,^ and Kerrick v. fery,^'^ he is entitled to the reference asked for." To a suit Ikought by or against a trustee of an insolvent's estate in respect lofa sum owing by one of the debtors of the insolvent, the creditors liiir whose benefit the trust deed was executed are not necessary Iparties." . lAnwnv. stead, fiSim. 635. Hmiekv. Saffery, 7 Sim. 317; Lloyd v. Lander, 6 Mad. 282. » CbltiM V. SkirUy, 1 R. .S: M. 638. M%dT. Lander, 5 Mad. 282 ; see King v. Martin. 2 Ves. Jun. 641. SiliKVort V. Battergby, 14 Jur. 329. « Tomm V. Winterfrotton* 2 Grant, 487. plR.4M. 638. !■ If the mortgagor's insolvency be discovered after issue joined, the aintiff will be permitted to withdraw his replication and amend f joining the assignees ;° and in such a case the bankrupt has tallowed to be retained;^ but the assignees must be joined.^ Upon the death of a provisional assignee, his successor may be joined merely by revivor.* If the equity of redemption become fested in the crown by forfeiture, the Attorney-General should be ent Mortgagor. Eadesv. ffrtmV.lV *f A mortgagor who has made a mortgage on lands in this province, who afterwards becomes a bankrupt in England, is not a tessary party to a bill to foreclose by force of the Imperial 8ta- e, 12 & 13 Vict. ch. 106, relating to bankruptcy." I Smum V. Pretton, 3 T. & C. 829 ; Ccuh v. Btlohsr, 1 Hare, SIO ; Peake y. oabon, 2 Rusa. & M. 354 ; BiU v. Edmonds, 5 De O & S. 603. ! Ttimpmn v. Kendall, 9 Sim. 897 ; Collins v. Shirley, 1 Riu». & M. 638 ; 9 Sim. S99. - ' < ? , H sutler. Maunder, 1 Coll. 535. 4 C%rtin V. Darey, 2 Jo. k Lat. 718. ' ■ < ■ . i Fnnklyn v. Pern, Bam. 30-82. « flanion v. Pretton, 8 Y. & C. 229. Tltaeenuin confiequence of some doubt as to the reg^ularity of the bankruptcy. 8 ITood V. Surr. 19 Beav. 661. • O'Brien v. Mahon, 2 Jo. & Lat. 201 ; where revivor may now be effected by order, without bill, see ISandieVictc. 86, 8. 62. H MuneA v. Attorney General, cited by Lord Hardwicke, 2 Atk. 223 ; Paulet v. Attomey-Oeneral, I Hvd.466. I U Onxttw V. rAttmore, 7 U. C. L. J. 124. 43 "p • 15 o 1 1068 PROCEEDINQS IN THE MASTER'S OFFICE. Of the Aasigneen of the Mortgagor. The application to those cases, in which the right of redemptig has become the subject of settlement, of the general rule in eqniti that it is sufficient to bring the first tenant in tail before the con has long been recognized. The rule, established for conveniens is said to be founded upon the practice at law, whereby ssbsequej remainders might be barred by a recovery in which a subseqne} remainderman was vouched, without prejudice to the intermediaj remainders. But courts of equity haye gone further in bind subsequent remainders in tail ; and, by extending the rule, \A avoided the necessity of giving every contingent remaindermaDl right to open the accounts, and thereby to render foreclosure! but impossible.^ It has, therefore, been laid down, that it is enough to bring befoJ the court the first tenant in tail in being ; and if there be no tenaq in tail in being, the first person entitled to the inheritance ; no such person, then the tenant for life.^ But where there is an express life estate the remainderman mi be joined.^ The tenant for life, * if there be one, and the intermediate remaiij dermen for life, ^ must be parties ; and if the interests of the latb become vested pending the suit, they must be added as parties. And if by the death, pending the suit, of the owner of the J estate of inheritance, that interest be determined, the owner of tU next estate of inheritance, and of the inttrosts prior to his, muj be joined. ' ^ ^ r ; r And so must owners of new interests acquired by the determii tion of a contingency, and which are not subject to destruction! a prior vested estate of inheritance.® 1 Lloyd V. Johnea, 9 Ves. 37. 2 Oifford V. Hort, 1 Sch. & Lef. 408 : Rosearriek v. Barton, 1 Ch. Ca 218. 8 StUton V. Stone, 2 Atk. 101. 4 lieiftwldson v. Perkins, Ambl. 504 ; see Handeock v. Shaen, Coll P. C. 128, a Chiifrpell V. Reex, 1 De O., M. ft O. 393; Oore v. Staopoole, 1 Dow. 81, Lord Red. 174. » " OF THE AB8IONEES OF THE MORTOAOOR. 1059 emaindermaniiiQ ]f the tenant for life be made a party with the tenant in tail, and 'latter release after the taking of the accounts, and the passing the time fixed for redemption, a decree of foreclosure, made olnte against the tenant for life only, will still bind the contin' Ut remainders ; the release under such circumstances being Lnftl to an absolute decree.^ Where there are trustees to preserve contingent remainders, how- ler many contingent limitations there may be, it is sufficient to Dg the trustees before the court, together with him in whom the , remainder of the inheritance is vested ; and all that come after be bound by the decree, though not in ease ; unless there be and and collusion between the trustees and the first owner of the heritance.* • The presence of an infant tenant in tail will bind the inheritance I well as if he were adult.* But a decree against the tenant for life only, when the tenant in , being out of the jurisdiction, is not made a party, will not bind [im, though it seems such a decree may be had, if the plaintiff will ke the risk of being compelled to account again.^ To what extent and in what cases the heirs of a Scotch entail, jrho enjoy indefeasible estates, are necessary parties to suits touch- ; their interests as such heirs of entail, is a matter upon which t seems no rule has been laid down.^ If there be a mortgage for a term, with a trust for sale of the fee, be trustees, having a legal interest in the estate, are properly loined m the mortgagee's suit for a sale.® But if the trustees have nerely the equity of redemption upon trusts to sell and pay off the ior mortgage debt, and hold the surplus for the mortgagor, and he deed be without consideration, the trustees are not necessary ties to a suit by the mortgagee ; because this is only a private angement made by the mortgagor for his own convenience, and 1 1 BtynMtcn v. Perkini, Ambl. 664. I iffoiKKMv. Hopkim. I Atk. 690 ; Cholmondeley v. Clinton. 2 Jac. & W. 138 ; Pow. Mort 975, n. (q): mi Lord Red. W. J feywWwn V. /•erWrw. Ambl. 564. - , \tm\nekv. Louie,! Oox, ill. ..- "■ 5{Wpv.JJndgM, 2Ph.607. ' r ..'•.-'; •* « ffOTM* T. So/en/, 7 Sim. 817. 1060 PROCEEDINGS IN THE MASTEB'S OFFICE. I s.: is p t^e trustees are but agents, claiming by an instrument which mj at any time be cancelled, and under which the mortgagee takes i interest.^ The trustees of persons entitled beneficially under a settlemej of a lease are not necessary parties to a suit for redemption, i the settlor, after the assignment to the trustees, has renewed] his own name, and has thereby acquired the whole legal estate] To a bill for foreclosure brought by the trustees to whom tJ mortgage had been executed for the benefit of certain creditors the mortgagor, such creditors are not necessary parties.* H Blake, C. : " As to the objection for want of parties, we think tlj plaintiff entitled to succeed. The sole object of the proceeding to realize the trust fund. The suit might have been sustained 1 the trustee alone."* Where a mortgagor had conveyed his equity of redemption to tlj trustees of his marriage settlement in trust for his wife for 1 remainder to his children ; and a bill of foreclosm*e was filed aftj his death against the trustees and widow, to which bill the childrej being infants, were not made parties ; the court granted a decn containing the usual reference to enquire whether a sale or forj closure would be more beneficial to the infants, and gave libertyf the Master to make the infants parties in his office if he should sj fit.^ A mortgagee filed a bill of foreclosure against the mortgagJ alone, and seven months after the final order of foreclosure had bed pronounced, the mortgagor moved to set the order aside on tU ground that several mesne incumbrancers had not been mail parties either before decree, or in the Master's office. The applj cation was refused with costs.® Where the mortgagor and mortgagee of leaseholds concur i assigning part of the estate for the residue of the term at a ren and, apparently, with the intention of making only an underlea8| the assignee is not a proper party to a suit for foreclosure in respe^ 1 Slade V. Rigg, 3 Hare, 35 ; Oarrardw Lord Lauderdale, 3 Sim. 1. 2 Malom V. Oeraghty, 3 D. & War 248-261. 3 Fraaer v. Sutherland, 2 Granr, 442. 4 Franco v. Franco, 3 Ves. 75 ; Milfnrd 201, fi ed. ; May v. SeJby, 1 Y. & C. C. C. 235. 5 DiokHon V. Draj'er, 11 Grant, 86S. 6 Cameron v. Lynes, 1 Ch. R.42. m OP THE ASSIGNEES OF THE MORTGAGOR. 1061 hhe equity of redemption,* and it was doubted if he were 'so in ect of the rent reserved. I The first, ^ or any subsequent' mortgagee or incumbrancer, hether of a legal,* or equitable** estate, who files a bill for fore- flure or sale, ® must make every incumbrancer, whose security is bBequent to his own, a party to his suit ; in order that their cessive rights of redemption may be preserved. And if two itatesbe mortgaged, and the mortgagor afterwards mortgage the* baity of redemption of one of them to a second mortgagee, and [ that of the other to a third person, the original mortgagee in ireclosing must bring forward both the second mortgagee and the ichaser ; for he cannot foreclose either of the estates alone, each |eing equally liable to the debt. Nor will an allegation without loof, that such a purchaser is an assignee for valuable consider- |tion, without notice of the mortgage, })ind the second mortgagee, r deprive him of his right to insist upon the presence of the pur- aser.'' But it seems it would be otherwise if the allegation were litted or proved. In the case of a statutory mortgage of tolls, which passes only a hare of the tolls, bearing the same proportion to the whole thereof, ithe money advanced by the mortgagee bears to the whole of the oney borrowed, all the mortgagees, whether prior or subsequent, ire necessary parties, inasmuch as one cannot sue for payment of I amount due to him without diminishing the fund out of which be others are intended to be paid ; and he "who takes possession |iafit apply the tolls in payment of the interest of all the mortgagees Of the Devisee and Heir of the Mortgagor. The devisee, whether in trust® or beneficially, of the mortgagor, 8 a necessary party in respect of so much of the equity of redemp- . Tyke v. Webb, 6 Beav. 652. . N. S. 109. 1 1 Edmrdi v. Jones, 1 CoU. 247. I Mann V. Paynter. 1 Coll. 630 ; I J mnim v. Holdsworth, 1 Sim. \\ {mm V. Paynter, BViipn. ^fe« V. ire66, supra. j » ^rgeu y.Siurget, U Beav. 440 ; but see Delahere v. Norwood, 3 Sw. 414, n. « w lr*i^- ^<»»'P(<»^, 2 Y. & C. 457. \\m^\^'^^'> 3 Beav. 22 ; Watts v. Lord Eglington, 15 L. J. (Ch.) N. 8. 418. »CofetT. forr««(, 10 Beav. 652. ■5 IP is: 1002 PROCEEDINGS IN THE MASTER'S OFFICE. tion as has been devised to him ; and the heir, ^ in respect of wha ho takas by descent. Thus, if the whole equity be devised, thl heir having no interest is not a proper party, either to a billbytlil devisee to redeem ^ or by the mortgagee to foreclose.^ Nor shoulJ he be made a party to a suit by a devisee of the grantor, in a fraud) ulent conveyance to set it aside,* because the equity of settinj aside such a deed will pass by devise. But it may happen that botj should be parties. As if r le, claiming to be devisee of a mortgage! 'estate, seek as well to establish the wilP as to redeem ; orifl title as devisee be doubtful ; " then the interest of the heir in disi puting the will makes him a necessary party. If the heir and devisee, by reason of a doubt arising upon th will, both claim, the devisee alone, it seems, should be plaintiff,! not both of them ; brt the heir should be a defendant, for thel claims are inconsistent. And the allegation of an agreement bq tween them to divide the estate will not alter this ; because th existence and legality of such a contract cannot be assumed, the parties must therefore be treated as if none such were in exisj ence.' And so if the mortgaged estate be devised subject to a rent charg^ and the rent charge descend to the heir, he must be made a pai with the devisee to the mortgagee's suit for foreclosure.^ To a suit to redeem by persons entitled under a will to a char] upon the equity of redemption, the trustees of the will are pro; parties ; * because they may have a claim upon the estate. Bi in a case where the possessor of the legal estate, and allthepersoi beneficially entitled, were before the court, and the interest of noi of the parties to the record required the presence of the heir of the surviving trustee, he was held to be so far a formal pai that, the objection for want of parties not having been taken tilltl hearing,^** a decree was made in his abeence, saving his rights. 1 Farmer v. CurtUi, 2 Sim. 466 ; Fell v. Broum, 2 Bro. C. C. 276. \ , 2 Leiou V. y angle, 2 Ves. 430. " Iv ' 8 2Ch. Ca. 32. . . > : • ' -' 4 Uppingtotiv. Bullen, 2 Dru & War. 184. ' v > • 5 Letoia v Nangle, 2 Ves. 340. 6 Earl of Maeclesjield v. Fitton, 1 Vern. 168. 7 Cholmondeley v. Clinton, 2 J. & W. 136 ; but see 16 & 16 Vict. c. 86, s. 49. 8 Calvert, 246. 9 Faulkner V. Daniel, 3 H».re,il3 „.. . . 10 40th Order. August, 1841. r'l OF THE PERSONAL REPRESENTATIVE OV THE MORTQAGOR. 1063 And legatees whose legacies are charged by the will of the mort- lagor upon the mortgaged estate have an interest in the redemp- llion, and are therefore necessary parties^ to a suit in which that I right is brought into question. Of the Personal Representative of the Mortgagor. The personal representative of the mortgagor is not generally a necessary party to a suit for foreclosure simply, or for redemption o(a mortgage in fee, for he is neither interested in the accounts, nor entitled to redeem. And the possibility that the debt may have been paid is not a ground for making him a party to a simple foreclosure suit.' It is for the heir to prove any payment by the mortgagor or his executor, of which he claims the benefit, and the plaintiff is not bound to meddle with the personal estate, from which his remedy against the equity of redemption is quite distinct. Where a bill by a mortgagee against the infant heir of the mort- igor prays a foreclosure, and the Court, for the protection of the infant, directs an enquiry whether a foreclosure or a sale is more for the benefit of the infant, it is not necessary to direct the Master to make the executor of the mortgagor a party in his ofl&ce, in case of the Master's opinion being in favor of a sale.* ^' And so in a suit to enforce an equitable mortgage, it is not [proper to bring forward the personal representatives of a deceased Itenant for life of the mortgaged estate, merely because the defend- lints may have a right to reimburse themselves out of his assets, llothe amount of arrears of interest accrued during his tenancy ; * Ithe plaintiffs not being bound to meddle with any adjustment of jaccounts between the persons interested in the equity of redemption. If the executors raise money for payment of debts by way of Ifiirther charge upon an estate already in mortgage^ the devisee Iseeking redemption on payment of the original mortgage only, need tmake the executors parties in the first instance, if his claim a not recognize their interest, but leaves it to be brought for- |ward in the defence. ' ' ' . -■ • '-,' ,->«■...',..■ ■-■'.,.■■■ • 1 tocAtJor V. Jfiddfoton, 6 Hare, 78. { iJ'"S'**< V. HatuUy, 8 P. W. 838, n. ; Grace v. Lord Montmorrii, 2 Dru. Sl War. 432. J flwt on If the heir or person claiming under the mortgagor an interest 1 the equity of redemption be out of the jurisdiction, or his resi- or existence l>e unknown, the cause must stand over till the Ittth Order, August, 1341. » -, , . •>•,., - ". •* iSehoUftld V. Ileafield, 7 8im. 667 ; but see 17 & 18 Vic. c. 118. J Qrifith V Riekettt, 7 Hare, 306. i But the court can now irive relief, notwithstanding a conflict of interests in co-ulaintiffs ; 16 & 1 Vic. a 86, s. 49. iStndm v. Riehards, 2 Coll. 66?. w.- v > • {««ttn«r V. Daniel, 3 Hare, 208 ; Davis v. CkatUer, 2 Ph. 646. JiiiaClmigky. Dixon, 10 Sim. 664. j '. v »5« ' • )■• 1066 PROCEEDINGS IN THE MASTER'S OFFICE. defect arising from the v.ant of parties can be remedied.^ Unle, the suit be of such a kind that the plaintiff can in his absence hai proper and sufficient relief. As where the heir of the mortgagor t a term of years being absent, the owner of the legal interest of d first mortgagee of the term, who had also contracted to purchal the equity of redemption, was declared to be a trustee of the leg interest for the second mortgagee.^ If no heir can be found, the Attorney-General should be madej party.* ' - ' Of the Persons claiming Interests in the Security and Debt. * Of the Mortgagee. No bill can properly be filed against the mortgagee, nor can he I properly made a party to a suit in respect of the mortgaged estatj unless there be an offer to redeem him, made by a person entitlj to do so. And if there be no such ofifer the mortgagee may demnrl Therefore one who has agreed to purchase an equity of redemj tion, having no right to redeem until the completion of the pu cuac? <^for he who claims a right to redeem must first have acquiid the mortgagor's title to a re-conveyance) ^ cannot make the moij gagee, either of a legal® or equitable' interest, a party to a suit compel specific performance of a contract in which he has no coj cern, or the performance of which will not affect his security or uf terfere with his remedies. And on a bill^ by an alleged less against the lessor for discovery of the lease (which the defenda pleaded was invalid,) and containing a prayer, that the lessor migij redeem a mortgage made by hin, the mortgagee of this mortg was held on demurrer, not to be a necessary party ; probably, cause the plaintiff's right to meddle with him depended upon I very question at issue in the suit, viz. the validity of the lease. ' 1 Felly Brmm, t Bro. C. C. 276 ; Andermn r. Slather, 2 Coll. 209 : Farmer v. Cttrtii, 2 81m. 8 Howee v. Wadham, Ridgf. Ca. temp. Hard. 201. 8 Leahy v. Daneer, S Mol. 108. . . , 4 Tasker v. SmaU, 8 Myl. « Or. 68 ; DaUim v. Hayter, 7 Bmt. 819; Inman y. Wear%ng,iw^ 8.729. 6 Franklin y. Fern, Bam. Ch. 30-82 ; BtoUey v. Dorrington, and Monk v. Pemfret, cited then. 6 Taeker ▼. SmaU, supra. 7 HaU ▼. Laver, 8 Y. * 0. 191. 8 Hitchim y. Lauder, Coop. M. J "I OF THE MORTGAGEE. 1067 1 should be madel irity and Debt But if the mortgagor's title be impeached by the bill, the mort- paee having a great interest in supporting it, and being often in possession of the deeds, ought to be joined.^ If the mortgagee admit his interest, he may be joined, without liny offer to redeem, in a suit to carry out the trusts of a deed to lAich he was not a pai-ty, and by means of which it is intended to leionerate the mortgaged estate from the debt by payment thereof out |of other estates. ^ If, however, he claims no interest in such a suit, [lie must be careful to disclaim, and not to demur thereto, where the il contains not merely a general allegation that the defendant is liiiterested (which is not enough to prevent a demurrer,) ^ but an Jeipress denial that he has any interest in the estates, followed by lillegation that he claims an interest the nature of which he ought Ito set forth ; for by demurring he would admit the charge, that he Itlaims an interest, which makes his presence necessary. Where a mortgagee has assigned the whole benefit of his security, having previously been in possession, and the mortgagor seeks an Kcoimtof an overplus alleged to have been received, the mortgagee, notwithstanding his assignment, must be joined with the assignee, that he may account for what he received in his time.* But if the mortgagor seeks only an account of what is due to the assignee, for the purpose of redemption, then, and it seems whether the mort- gagor have or have not been a party to or had notice of the assign- lent, the mortgagee who has assigned need not be a party .^ In the latter case, ^ because the assignee having agreed to stand in the place of the original mortgagee, is bound by all the equities sub- between him and the mortgagor, and cannot afterwards to accounts which he has already taken on the credit of the 'armerv. Cttrtii, 2 Sim. ( iCopiiT. JTiddfeton, 2 Mad. 423. , ! DoJton T. ffoj/fer, 7 Beav. 313. ' J Plumbe V. Plwnbe, 4 Y. & C. Uu. «S.N. 2 Eq. Ca. Abr. 694, Duchy ; Freem. Oh. Ca. c. 66. Said in PoweH, 663, note (m), to bo Iwniled by Chambers v. Goldurin, 9 Ves. WO. But Lord Eldon's observations did not extend to the 1* put here, of a mort^^avee in possession, and an account sought of the overplus received. Upon the Sndple of the case cited, was decided Lowther v. Carlton, in which, according to the report in 2 Atk. iJiitwwheld, that if there have been several trannfers (if a mortgaged estate, a,pui*ne assignee who I W notice of the mortgage may call for the presence of the mesne assignee, who had no notice, or of |i ..rewntatives, that he may avail himself of the shelter afforded by the title of the other. The iMithus put is doubted by Mr. Calvert, and, In fact, bean internal evidence of error ; for it is stated ■wtlieTery representatives were parties, in respect of whose absence the objection was taken. The iNfortinBam. Ch. 36S, shows, that, although the question of notice really arose, the representatives I »m ordered to be joined, on the ground that they had been in possession, and that an account was I *«|kt ot m««n« proflvs. The case is also reported, but not on the question of parties, in Ca. t. Talb. 187. 5 Freem. Ch. Ca. c. 66. I fliT. Adams, 2 Atk. 39 ; Norriih v. Marthall, 6 Mad. 476 ; Chambers t. Ooldmn, 9 Ves. 209. P'l-ii, 1068 PROCEEDINGS IN THE MASTEB's OFFICE. ■5 P assignor ; and it seems upon principle in the former also, becau the assignor's accounts have been admitted by both parties.' If only part of the security have been assigned to a derivatin mortgagee, for a less sum than the original debt, then upon a so for redemption or foreclosure, the original mortgagee must be I party ; for he claims an interest, viz. a right to redeem the asE and prevent another account.^ Yet if in such a case the objectiJ of the absence of the original mortgagee be not taken until I hearing, the cause will be suffered to proceed without him, if bein a witness, he have sworn that he is fully satisfied and retains 1 interest.* * . ,• ; ■ Where there are several tenants in common or joint tenants ( the mortgage money, all must be parties.* The second or other piisine incumbrancers may forecloae thos| subsequent, without joining those prior to themselves;^ for latter can suffer no damage. The subsequent mortgagees, it true, are left without the opportunity of redeeming all who are prid to themselves in the same suit ; which, however inconvenient, i not thought to be unjust towards those, who, lending money up incumbered estates, have a full knowledge of the state of tl] security. Nor are the owners of prior incumbrances necessary parties I suits for sale* of the estate by subsequent mortgagees, the sa being made subject to those incumbrances. And an exception, the consequence of the nature of the rell^ may arise where a mortgagee can be redeemed as to part only i his security, which, it has been held, may be done by a remaiudej man, as against the second mortgagee of a charge on the estaf 1 Freeman's Ch. Ca. c. 66, n. ; Car v. Boutler, id. c. 290. In the ease of Barker v. KeUett,} Ch. Ca. c. 146, it is said, that to a redemption bill by the huir of the mortf^agor against the i»V^i the mortgage, seelcing also discovery of what had been paid on the assignment, a demurrer to the (I covery, and because the assignor was not a party, was allowed ; for that he should not discover wtalf paid, and that if plaintiff would redeem he should pay what was due on the original mort^. l reason does not justify the demurrer for want of parties, for the assignor's presence could n«j required by the assignee, if the price of the redemption was to be the original debt, the *'^^,°'J clearly bound as to that. It seems that demurrers were formerly allowed in part. See Lord Ru- " 2 Norrith v. Marshall, 6 .Vlad. 475 : Hobert v. Abbot, 2 P. Wms. 642. S yorriuh v. Marthdll, supra. 4 Viektn v. Coteell, 1 Bear. 620. 5 /ioM T. Page,2 Sim. 471 ; Riohardt v. Cooper, 6 Beav. 304 ; and see 8 Hare, 88. b OeIab«re v. Norwood, 8 Sw. 144, n. ( I /.Mil'' OP THE MORTOAOEE. Ni-', 1069 ie by a former tenant for life under a power,) and by him mort- ced with other property, on payment of so much only of the nonnt of the charge as, the amount of the principal of the first ortgage being deducted, .was comprised in the second mortga- j'g security. In such a case it was held,* that the prior mort- gee of the charge, as well as the personal representatives of the ■tgagor, must be parties ; the former as being interested in the aount comprised in the second mortgagee's security, and the er in ascertaining whether the mortgagor had paid oflfjany and at part of the charge in his lifetime. If a receiver be prayed of the general proceeds of the 'estate, ills being an interference with the interests of prior incumbrancers, 1 make their presence necessary.^ And the prior incumbran- jers must be parties, if they have joined with the mortgagor in ap- lointing a receiver, who covenants to keep down the incumbrances, nd to pay the surplus to the mortgagor, to a suit against the mver by subsequent incumbrancers, for an account and injunction ainst payment of the surplus to the mortgagor ; because the re- viver is agent for, and stands in a fiduciary relation to, all the bcumbrancers.^ t : Of the Assignees and Devisees of the Security and Debt. The person in whom the legal interest in the security becomes [ested, whether it be by the original mortgage, * by assignment, ^ r by devise,* and though he be only a trustee' for the persons ntitled to the mortgage money, is a necessary party to a suit for demption,'* or foreclosure.® To the one that a reconveyance ly be obtained, to the other for the same reason if the defendant boald redeem, and in case of a decree for foreclosure, because ihe 1 interest is to be protected by the decree. -^ And if the mortgagee have made an absolute conveyance with ireral limitations and remainders over, especially where the title \\M Kituington v. Bouverie, 16 Ben v. 194; 19 Beav. 89. IjWtonT. Stratkmore, V.C.E., cited Calvert, 16. ll/onJT.JlMllrAom, 17Beav. 4S6. ,• . , • t Ijfdodv. riKw»m»,4Mad. 186. 'C 15 r«tfw»H V. Cottim, 3 Mad. 266. I; A ■ *• ^iUiams, WelhereU v. Colliru, supra, Hiehetu v. Ketty, 2 Sm. & O. 264. I Mwm V. FaUowt, 1 Russ. & M. 741. I J*™*"'" ^- CMitu. supra. VBtrtU v. Witttip, 8 Sim. 288 : SmUh v. ChieKuter, 2 Dm. & War. 404. If 1070 PROCEEDINGS IN THE MASTER S OFFICE. I f Sf • .5 o to redemption depends upon equitable circnmstances (as if themorl gage be of long standing,) ^ the first tenants in tail at least inusti brought before the court. The purchaser from a mortgagee under his power of sale is not necessary party to a bill by the mortgagor against the mortgagJ o recover the surplus purchase-money, and offering to confirm I sale.* .,, ,. . , .,^,; ; , , ,. The rule also applies to trustees for the mortgagee in respect i their power to give discharges for the mortgage debt ; and it rendeJ necessary the presence of a trustee, who, having signified hisresi] nation only, by a memorandum indorsed on a trust deed, has d] been fully discharged from the trust by the appointment of a sni cesBor.' f ; ^ '*■■ The trustee of the legal interest in the security having no i rights, may properly be, and to save expense to the morigag ought* to be, a co-plaintiff; though it has been thought a sufficie^ reason^ for making him a defendant, that he might have refused \ be a plaintiff. Persons with whom the mortgagee has dealt wrongfully fJ the produce of the mortgaged estate are proper parties to a r< demg tion suit, as being in possession of the value of the convert) d of the estate, though they no longer hold the property in 8peck\ Of the Heir of the Mortgagee. If the legal interest should descend, the heir of the mortgagJ must be a party ; and if the suit be for foreclosure, the mortgagee executor, upon reviviving, must join the heir. And this is by tl| same reason which makes a trustee of the legal interest a nccessa party ; for the heir is a trustee for the executor.^ The rule, however, of course does not extend, as the reason do not apply, to an heir who has not the legal interest ; so that ti| 1 Tatea v. Hambiy, 2 Atk. 287. 2 Minn v. Slant, 16 Beav. 49. 8 Adams v. Paynter, 1 Coll. 630. * 4 Smith V. ChiehetUr, 2 Dru. & W«r. 404. 6 Browne v. Loekhart, 10 Sim. 429. 6 Hood V. Boston 20 Jur. 729. See the principle of this decision douLted, 20 Jur. 917. 7 Soott V. Nieol, A Russ. 470. ' ' .> ■ M f ' ' OF THE HEIR OF THE MORTGAGEE. 1071 Lof a subsequent mortgagee need not be joined in a forecloanre t by the prior mortgagee.* [Where a mortgagee institutes proceedings to foreclose against B mortgagor, and the estate of a deceased mesne incumbrancer, real representatives of such deceased incumbrancer are not ressary parties.^ . " ' i I Where a mortgage is taken in the name of one partner to secure Ipartnership debt, and a bill is filed to enforce the security, the iieBentatives, real or personal, of the deceased partner, are not «88ary parties.^ I The heirs of the deceased mortgagee, or the persons beneficially terested under his will, are not necessary parties to a suit where iexecntorsof a deceased mortgagee filed a bill to foreclose.'* le bill in this ease was filed by three persons, describing them- m to be executors and executrix of the mortgagee, against the gor, who demurred on the ground that the parties entitled kr the will, or by descent, to the legal estate in the mortgaged mises, were not made parties. But to a bill by a mortgagee, r a sale after the mortgagor's death, the personal representative I the mortgagor is a necessary party; though not to a bill of oloBure.^ ted, 20 Jur. 917. several tenants in common, and the husband of one of *m, in order to secure a debt due by another of them, executed imortgage which conveyed a life lease only to the mortgagee ; Ion default of paying the mortgage money the mortgagee had and obtained judgment and execution against all the mort- gors for the amount of the debt, and under the execution so liainedhad sold the reversion, and the mortgage was thereby fified ; but the purchaser went into possession during the lile- ne of the mortgagee. Held, that the personal representative I a necessary party to a suit by the mortgagor for a re-convey- I of the mortgagee's life estate, and an account of the rents 1 1 S?" "' ^'^^'^Vj * D™- * War. 267. I iSSfill ^S?**' * *'*»»°>- B. 74; and see to the sune effect Orimthatee v. Parkt. 6 U. C L J 142 1»»p»«niv. Svnpton, 12 Grant, 488. ...... «*. iSr^J- ^^*«^hrie; 11 Gnmt, 809. »W«iT.fla^M,flOnuit,4IO. • v>- ^ >r. . I s •i 1072 PROCEEDINOS IN THE MASTERS OFFICE. i5 P f and profits.^ One of the defendants, the assignee of the mortgage! by his answer stated that he was not interested in the mortg^ or at all events only by wa,y of security, and that it belonged to and that he and B. had concurred in an assignment of it to Held, that A. and B. were necessary parties, and^ that, notwitll standing the defendant consented to withdraw his answer, a decrj could not be made in their absence.^ And if the legal interest have been devised by the mortgagee,! heir is^ not a necessary party.* Where the heir at law could not be found the suit stood over] that the Attorney-General might be made a party to represent tlj legal interest. 1 ' Of the Personal Representative of the Mortgagee. The mortgage debt being part of the mortgagee's personal ( fl)8 jecurity belongs, in equity, to his personal representatives; fJ whom, upon the death of the mortgagee after forfeiture, the beij though in by descent, is only a trustee.* Having, therefore, right to receive the money upon redemption and to hold the eata upon foreolosure,« their presence becomes necessary in suits of boj kinds. But with this exception, that in a suit to redeem a Well mortgage of long standing the court excuses ^ their absence, leaviij the parties to controvert the matter between themselves. And tli practice is evidently not from any want of interest in the person representatives, but out of indulgence to the plaintiff, who mig| otherwise, after many years, find redemption impossible. If tenants in common be entitled to the mortgage-money the] sonal representatives of those who die must be joined.^ It is tl same, though the persons entitled are in fact jointly interested! 1 Nelson v. Robertson, 1 Grant, 530. 2 FonifctoeJfcv Tyrreil, 8 Grant, 321. 8 How V- VigureSy 1 Rep. in Ch. 32. In Skiiyp v. Wyatt, 1 Cox, 353, the heir was made a |iutr| the devisee to establiah the will against him, and the plaintiff was ordered to pay the heir's «i which it was said should not be thrown on the estate, because they arose from the mort^'ee'sl in disposiiiir of the properly. As a general rule, however, it is clear that the estate is liaMf costb arisin); out of the lawful and reasonable dispositions of the mortgagee. 4 Smith V. Bicknell, 3 Ves. & B. 63, n. ; and Kee Casberd v. Attorney-Oenfral 6 Price, 411. 5 Ellis V. Ouavas, 2 Ch. Ca. 60 ; Wynn v. Littleton, id. 61. 6 Freak v. Hearsey,! Ch. Ca. 51. I Per Lord Hardwicke, Longuet v. Seawen, I Vw. 406. 8 Ftoifcera v. Cotoe2(, 1 Beav. 629. .j&v ,J.i*.i^ OF THE PERSONAL REPRESENTATIVE OF THE MORTGAGEE. 1073 trustees, if there be nothing in the deed to show that the represent- Lives of the deceased mortgagee are not entitled (for whicli the fact tliat the debt appears by the deed to be trust money is not suffi- Itient ;') because the right to money advanced by several persons Ijointly does not survive in equity. So the personal representatives of the original mortgagee must \k parties to the suit of his sub-mortgagee to foreclose the original |iDortgagor,^in respect of their right to redeem the sub-mortgagee. And the personal representative of an unpaid vendor of real is a necessary party to a suit by the trustees of his personal for foreclosure ; and if one of the trustees, being also the sole executor die, the suit will abate as if he had been executor only, and not trustee ; consequently his executors also must be made parties. . ., %■ Mthough the absence of the mortgagee's personal representative I do not appear till the hearing, the suit will not be permitted to Iproceed without him.* And, where in his absence the heir of the [mortgagee obtained a decree for foreclosure, the estate was decreed ^ to the personal representative upon his filing a bill for that purpose ; Ithough it was said by Lord Chancellor Jeffries,* that in such a case Itlieheir might well say to the executor or administrator, — " I will jpayyou the money and take the benefit of the foreclosure to my- Iself," in case the land were worth more than the money. Of the persons beneficially interested, either in the Equity of " Redemption or in the Security and Debt. -' In all suits coucerning real or personal estate which is vested in llrastees under a will, settlement or otherwise, such trustees repre- sent the persons beneficially interested under the trust, in the same jmanner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons bene- jficially interested in such personal estate ; and, in such cases, it is [not necessary to make the persons beneficially interested under the 1 Mtnv. Cowell, 1 Beav. 629. iHokrtv. Abbot, 2 P. Wms. 642. 3 Ca« T. Cort, 2 Y. & C. C. f. 130. \ileekerv. Tanton, 2 Ch. Ca. 29. ^ 5 Coie T. Coriwfe, cited 2 Vera, et ; i;i * « Ctertton V. J8owv«»S 2 Vem. 67. • v^^ ' • > , v -C •■ ; 44 1074 PROCEEDINGS IN THE MASTER'S OFFICE. P trusts parties to the suit, but the court may, upon consideration the matter on the hearing, if it shall so think fit, order such pej sons, or any of them, to be made parties.^ Before the passing! this statute, and the date of a modern order of court, which directed) that devisees in trust of real estates, ha^dng power to sell and qj discharges for purchase-moneys, rents and profits, should represeJ the cestuis que trustent to the same extent as they are represents by executors or administrators in suits concerning personalty, i was a general rule, that all persons beneficially interested in tlj equity of redemption or in the mortgage money should be luiid parties to suits affecting their interests. The extent to which the interests of cestuis que trustent may represented by executors and administrators in suits concerniii personalty is therefore, subject to the discretion of the court, di clared by the statute to be the standard by which the represeutiitij powers of trustees of real or personal estate, however the trust ma have been created, is to be measured ; and with regard to the sut ject of mortgages, it will be remembered that the executor or aj ministrator is the proper person to sue and be sued in respect i securities on chattel interests, without the persons boneficial| entitled.* - • The effect of the statutory rule upon suits between mortgagor an mortgagee, relating to securities upon real estate, appears to bj that the cestuis que trustent will be well represented by the trustee! where the latter have complete power over the estate, or have \im\\ their control funds applicable to the purpose of redemption ; an the individual rights of redemption, which before the statu| belonged to such cestuis que trustent, will, to the extent to whic they are so represented, be taken away. •■ Thus in a suit for foreclosure* against the absolute devisees i the equity of redemption in one moiety of the estate, and again! the devisees in trust of the other moiety, being also the executoj of the mortgagor, the cestuis que trustent of the second moiety wej held not to be necessary parties ; because all the persons, who h( 1 16 Ji 18 Vic. c. 86, s. 42, Rule 9. a 80th Order, August, 1841. B WiUonv.JonM, 2 'i.&C.C.C. 2U. * Sale V. KiUon, 17 Jur. 171 ; 8 De G., M. & G. 119. ^ EQUITY OF REDEMPTION. 1075 Dotrol over the property out of which the debt was to be paid, |iere present. And on the same principle a decree may be made for sale of a Bortgaged estate in the absence of the cestuis que tnistent of the Mnity of redemption, where the devisees in trust are j Iso executors iik mortgagor.! The right of redemption of the cestuis que trustent of a pusine lortgage'^ will in like manner be bound if the trustees being them- lelves mortgagees, or taking the mortgage as executors, be alone parties to the suit. If, however, the devisees in trust of the estate be not executors mortgagor, it seems that the old rule will remain in force.' And it is to be observed, that there is a distinction between loses arising under wills and those under settlements, viz. that in ie latter the trustees of the persons entitled to redeem have not Generally the control over any other than the settlement fund, and y therefore be without the means of redeeming ; in such cases Ithe court will not permit adult cestuis que trustent to be foreclosed, * without an opportunity of redeeming, but will require* either that I they be made parties, or that an affidavit be produced to the effect it they have had notice of the proceedings, and do not object to Ithe produced decree. The same principle applies to the case of a irill, where the surviving trustees. of the will having disclaimed, |the mortgagor's estate is represented only by an infant heir.* And prhere the equity of redemption is settled intrust for the mortgagor (or life, with remainder to his children, and the children of such as should die, it seems that the mortgagor's infant grandchildren, whose parents are dead, as well as the representative of a deceased chOd, who has been a defendant, ought to be joined in a foreclosure snit.^ But if instead of the usual decree in such a suit, a sale be directed, and the money be^^ordered into court (such proceeding 1 ffanman v. Riley, Hare, App. xl. 2 Coldimid v. SUmehewer, Hare, App. xxxix. ; 17 Jur. 199. 5 See C«tei v. Forrest, 10 Beav. 557. ♦ GoMmtd V. Stmehfiver, supra. So the case of Calverleyv. Phelp, 6 Mad. 229, before the act, though there was a power for the parties to give receipts, which it was held only made the concurrence uf the cesluis que truttent unnecessary in case of a sale. 5 mn V. MorrU, 1 Sm. & Gif. 503. 6 Toung v. Ward, 10 Hare, lix. " Siffkm V. Davis, Kay, xxi. The observations oi Wood, V. C„ only referred directly to the repre- sentative of the deceased defendant ; but his allusion to the'rule in Cfoldtmid v. SUmehewer seems to involve the point respecting the infants, which was also debated. 1076 PROCEEDINGS IN THE MASTER'S OFFICE. P I ■A being shown to be bene^cial to the infant,) the presence of thesej parties will be unnecessary.* The distinction above referred to appears to tike out of the opeJ ration of the statute, as regards adult cestuis que trtiatent, all casej arising under wills, where the devisees in trust, not being i executors, have no fund applicable to the purposes of redemption.' And even in the case of a settlement, if the ceatuis que trn8tenth\ infants, or if their shares have been again settled, inasmuch as the infants and the trustees of the sub- settlements cannot be expected to be in a position to redeem, they will be well represented by th^ trustees of the original settlement.^ Where amongst the subsequent incumbrances on an estate, thj subject of a foreclosure suit by the first mortgagee, there weij eight mortgages made on the same day, in respect whereof only on( right of redemption was given, and one of the eight mortgagees diedj to whose estate there was a difficulty in getting representation, thj suit was ordered to proceed without a representative.* Where the mortgagor sues for redemption, and there is buti single mortgage which has passed by the will of, or by assignmenj from the mortgagee, the cestuis qv,e trustent under the will or seij tlement will probably be no longer necessary parties with theij trustees.^ ■ff, ^/ Where one of several cestuis que trustent of mortgage money sue for foreclosure, the others need not be parties with the trustees; practice which is founded upon the principle, that for preventing] multiplicity of suits there shall be no foreclosure or redemptioD unless the parties entitled to the whole mortgage money are beforj the court.® A later case, in which one of several persons entitled I 1 Siffken v. Davit, Kay xxi. 2 This position seems to be supported by a late decision of Stuart, V. C, in which he refused to ilj a devisee of an equity of redemption «f freehold to represent the persons beneficially interestel Cropper v. i/eUer«A, 19 Jur. 299 : and the following cases, decided before the statute, appear I come within the distinction ; Andtnon v. Stather, 2 Coll. 209 ; WiUon v. Jonet, 2 V. & C. CI 244 ; Coles v. Forrat, 10 Beav. 557 ; Vrew v. Harman, 6 Price, 319 ; Whisller v. Wdib, Bunb.. Henley v. Stone, 3 Beav. 355. 8 Goldsmid v. SUmehewer, 9 Hare, App. xxxix. 4 Long v. Storie, 23 L. J., (Ch.) N. S. 200. According to the report in Kay, (App. xiii,,) a creditor' appointed representative for the purpose of the suit. 6 See Whetherelfv. CoUint, 3 Mad. 266 ; Otboum v. Fallows 1 Russ. & M. 741. 6 Lowe V. Morgan, 1 Bro. C. C. 368. EQUITY OP REDEMPTION. 1077 resence of thes^ ilistinct shares of money laid out by a trustees in a single sum, Lving sued for an account, and foreclosure of a proportion of the jeeurity, without joining the other persons entitled, a decree was nude according to the prayer, ^ has caused some perplexity ; and the cases have been thought to be distinguishable^ by the circum- liiance that in the case of Lowe v. Movgart, the cestuis que trtistent liere joint tenants of the money laid out in their trustees' names, tat in the case of Montgomerie v. Bath, the mortgagees were tenants I in severalty or in common ; and it has been concluded, that one t tenant of money so laid cannot foreclose without the concur- Irence of the other joint tenants, but that a tenant in severalty or in eommon, having moi^ey on the same mortgage and in the name of the same trustee as another person, may foreclose without making \M other person a party. Bat this distinction strikes at the design of the practice to avoid imultipUcity of suits ; to which the borrower of money belonging to tenants in common must be exposed, if any one of them can sue him alone. The learned editor of Mr. Powell attempts to avoid this objection by the argument that there is a difference between split- ting one mortgage into different sums belonging to several persons, ind the case where several persons lend distinct sums on the same Mcarity, for, in the latter case, the mortgagor knows at the time of bon-owing the money how many suits can be brought against him. But it does not appear by the report of Montgomerie v. Bath, that the mortgagor knew in what right the money belonged to the lenders. On the contrary, the security was made, and the debt was Diade payable to the trustees alone, and the trust was declared by I subsequent deed poll; and it is submitted with deference, that ihether the money be a single sum advanced by joint tenants in the name of the trustee, or composed of disiirct sums to which liifferent persons are entitled in severalty, ' it it equally the practice not to disclose the trust on the face of the mortgage, but to make ilie trustee alone the mortgagee, and the person entitled to receive tile money. The fact is, that the decision in question, although the %. Ub. is said not to show * that it was made by consent, is dis- 1 ilciUgomeHt v. BcOh, 3 Ves. 660. JAw«B,Mort.964, n. (c.) 3S«/ttyfc,12Siin. 470; lPh.96. ,f ♦isiin.&s.426; •'■ • " . ' ;■ ^ t •' 1078 PROCEEDINGS IN THE MASTER'S OFFICE. o i tinetly Htated by tho reporter to liavo been made without opposition! fat the hearing ; and there will, consequently, be little difficulty inl ollowing Mr. Belt's opinion^ of its incorrectness ; especially as t!i> [ doctrine of Lptve v. Moryan has been wince judicially confiniiwl The presence of the persons beneficially interested undir w willj is not necessary in a suit by the executor '^ trustee to rocow money lent by him on mortf^age, under a p. ^ of investment coiiJ tained in the will, even though the will contain no powiT to jjivej discharges for the mortgage moneys ; because that power is implitd by the nature of the trust.'* J;;Tho court will not permit the representatives of a deceaswi trustee of a mortgage, or even the surviving trustees (at least wlnrtj the original number has been much reduced), to redeem witho the presence of some of the crstu'iH que trnstent ; lest the trustin should misapply the mortgage money. But the mortgag' o would be safe upon such a redemption without the cestuis que triiiitent}\ If several of a body of trustees, where th 'Muis que trvstent iir numerous and fluctuating, file a bill aga- he remainder of thj trustees, and a purchaser claiming an absolute title under a powej of sale in a mortgage, offering to confirm the sale, but claiming tlij benefit of it as against the mortgagee,^ so many at least of thj cestuis que trnstent for the time being, as have not consented to thj suit, ought, under the practice hitherto pursued, to be made parties their intereetB being inconsistent with those of the rest. But p;ui of the consenting cestuis que ti-ustent might, imder the sanction of | majority of the whole body, represent the rest of the consentii parties, where the majority had a right to give a sanction to thj transaction in question. It does not seem likely that in such casej the presence of any less number of the cestuis que trustent would 1 sufficient under more recent enactments. Before the passing of the statute now under consideration, it wd necessary to join scheduled creditors under a deed of assignment fq the benefit of creditors where they have executed the deed;* bi| 1 1 Bro. C. C. 368, Mr. Belt's note. 2 Palmer v. Sari o/CarlUle, 1 Sim. & S. 423. 3 Wood V. Harmon, 5 Mad. 368 ; and see Lock* v. Lomai, 6 Oe G. & S. 326 ; 16 Jur. 814- 4 Statufield V. Hobton, 15 Beav. 189. 6 See if inn v. Slant, 12 Beav. 190 ; 16 Beav. 49. 6 Newton v. Earl ofBgmont, 4 Sim. S74 ; 5 Sitn. 180 ; Thomas v. Dt'.Tming, 6 De G. & S. ol>. EtiUlTY OF IIEDEMITIUN. ibore the trustees have no interost distinct from such creditors, iDor ivuy duty but to get in and distribute the property, it is pvo- Iliflble that the presence of the creditors will not now be re(]uirt'd ; ||or it seems, that such creditors have not in themselves any right |of redemption apart from the trustees.* But, where, besides re- demption, the bill seeks a declaration as to the priorities of the intiff, and the other incumbrancers, ^ it is not easy to see how liclieduled creditors (the doubt an to the amount of whose interests jimplics a contest between each of them and every other claimant i the estate,) cai\ be adequately represented by the trustees. A small number of scheduled creditors may, however, represent erest' in the suit, if the bill show a good reason for omitting the itire body, and show also that a proper choice has been made. lit seems essential to such a choice, that no representing creditor loiilil have any interest in the matter, in conflict with the interests if those whom he represents; as, for instance, an interest in the oity of redemption, in addition to his right as a creditor under e deed of trust. Scheduled creditors, who are not parties to the deed of trust, need ; be parties to the suit.^ Cettttis que tnistent, who have neither been parties nor privies to I mortgage security, by which the fund was invested in breach of ast, and who have not adopted the transaction, are not necessary ties to a foreclosure suit by the trustees.* If, in such a case, lie cestuU qm trustent have adopted the transaction, it seems that hey should be co-plaintiffs if made parties to the suit, which, how- ler, would probably be now unnecessary. The persons beneficially interested under a will are not neces- parties^ to a suit by an executor against his co-executor I realize a mortgage debt due from the latter to his testator. 1 IVoKjWott V. BinA(M, 6 Ves. 573. itSewUmv.BarlofEffmotU. 3 Bottand v. Baktr, 3 Hare, 68. I ti^Uv. Wright, 1 Beav. 444. See also as to joining scheduled ci editors, Oore v. Harrii, 16 Jur. '61 ; and see Smart v. Braditock, 7 Be»v. 500 ; Dnody v. Higgini, 9 Hare, xxxii. ; WiUwyn v. CouUs, 3 Mer 707 ; Oarrard v. Lord LauderdiU, 3 Sim. X ; '£ Russ. & M. 4fil ; Law v. BaaweU, 4 Dru. & W.4(I6. ' » > 1 5 iltoi V. Knight, b Hare, 280. « ftate V. ie^, 8 Hare, 813. ■M 1080 PROCEEDINGS IN THE MASTER'S OPFICR Q I And it seems, ^ that cestuis que trustent under a will may be reprd sented by the personal representative in a suit by an equitabij mortgagee of the testator, to whom the representative has given i legal mortgage and power of sale, to enforce specific performano of a sale under the power. : ■ > . rrr If the trustee in whose name money is lent on mortgage be solicitor, it being an ordinary part of his duty to lay out money fJ his clients, he is not bound ^ to discover the names of his mt4 que trustent, if he cannot do it without ii brea,ch of professional con fidence, notwithstanding any inconvenience which may arise to thl plaintiff from want of the information. For the liability to makj the discovery may ruin the business of the solicitor ; and the debto would have an unfair hold upon his creditor, if the latter shoulj happen to be a person who had forfeited his legal rights. 4. Of Assignees, pendente lite, of the Mortgagor and Mortgagee It is a rule which has been long reco;]^ized both in courts of la^ and equity, and which arises out of the '^ xim "pendente lite innovetur," thfit he who purchases an interest in litigated propertj pending the suit, acquires for the purposes of the suit no right M tinct from that of his assignor.'^ The alienation neither gives anj new, nor varies any existing rights ; and the pendency of the su is held to be sufficient notice to the purchaser, whose title is disrej garded in all subsequent proceedings. And this rule being grounde upon the reason, * that any person interested in the subject-mattej of a cause, might otherwise harass the other pa.;'./•:, v> K If, therefore, pending a suit for redemption, the equity of redomn tion be assigned by the mortgagor, the assignee will be bound. and a fortiori in a foreclosure suit, where the mortgagee is an acti^ party." 1 Sandiert v. Richardt, '2 Coll. 668. 2 Jona V. Fugh, 1 Ph. 96 ; Harvey v. Clayton, 2 Sw. 221, n. „ ,„, 3 Co. Liit. 102 b ; Mttealfe v. IHdvertoft, 2 V. & B. 200 ; BUkop of WituAater v. Paine, 11 Ves, M. 4 Metcalfe v. PuXverfofl, supra. 6 Ga»'th V. Wa,rd, 2 riRed.ri. l^oiwon V. Thomas, 11 Beav. 601, [ iSohnm V. Solovion, 13 Sim. 517. I i INote that in tht late case of TTood V. <9urr, 10 Beav. o61, there was actual notice. Irafcr ?. /Vacon, 6 Mad. 69 ; Cotei V. /V>rrM«, 10 Beav. 66a. Iftifcrv, ZJeocon. 6 Mad. 69. J*iittv.CVMwicA:«,8 Sim. 362. 'W»T,Jf(!«y,4Dow. 436. ' ♦■ * '..,,«., , .... r«lv. atrr, 19 Beav 651. i ik. i«'TOri m 1084 PROCEEDINGS IN THE MASTER'S OFFICE. Where a bill for aocount and payment out of mortgaged es seeks discovery of incumbrances prior to the plaintiff's, the defei cannot take an objection on account of the absence of prior incn brancers;^ because the subject of the objection is the very discoTl sought by the bill for the purpose of making those persons pa An objection for want of parties will not be oUowed to an amen bill, after one to an original bill which would have been an equ good defence against the latter ; ^ the defendant being bound ioi close all proper parties of whom he knows at first. A plea that an incumbrance is now vested in an incumk was held bad ; for at the filing of the bill it might have been ve^ in the plaintiff : and the plea should have shown that it was tlj in the incumbrancer.^ P i nvf^nH^nn - Section II. — Proceedings to obtain Decree in cases of Foreclosure or Sales. Prior to the promulgation of the Consolidated Orders of 18 there were different modes of obtaining decrees in mortgage ca^ One, where no answer was filed, but there were subsequent mcij brancers to be made parties in the Master's office ; another, wh no answer was filed, and there were no subsequent incumbranc| to be added ; another, where an answer was filed , and otli where the answer admitted such facts as entitled the plaintiff \ decree. In all these cases the decree was obtained in Toroo but there is now a fourth case, where the Deputy Registrars i issue decrees on praecipe for foreclosure, sale, or redemption, wli the suit is between the original mortgagee and mortgagor only.l Order 38 provides that " Every Deputy Registrar may ia decress on pracipe for foreclosure, sale, or redemption, where | suit is between the original mortgagee and mortgagor only, anl to enter such decrees in a book, to be approved of by the Coj and kept for that purpose by the Deputy Registrar." 1 RatoUnt v. DcOUm, 3 V. & C. 447. 8 Id. 3 Id. ^ 7^ FORfiCt'OSUIt^ OB SALES. 1085 I may be well here to observe that, under this Order, the prac- ' brings into the Deputy Registrar's office the certificates of I Registrar and Sheriff shewing that there are no incumbrancers, Bvit of claim, account, affidavit of service of the bill, and bill Itosts. The Deputy Registrar takes the account as if he were as Master — taxes the costs, which- are revised ; and on them from the revising officer, he prepares the decree teh is subsequently worked like any similar decree issued in onto. It has been held that on taking the account in foreclosure 8, no more can be found due than the amount claimed by the Lrsement on the copy of the bill served.^ Ifiefore entering into the practice on a decree sent into the Mas- office, it may be well to dispose of such cases as may be lit with in the Registrar's office in Toronto. And first, as to J case where no answer is filed, but there are subsequent incum- ncers. . .... lit will be recollected that in all suits for foreclosure or sale there ; be endorsed on the office copy of the bill to be served the tee set out in Schedule S of the Orders. This notice is paired by Order 436, which directs that ** Wliere no answer is d, the decree is to be drawn up upon production of an office jiy of the bill, and an affidavit of the service thereof, shewing same to have been endorsed with the notice set forth ItSchedule S hereunder written." Order 437 provides that " The iUce under Order 436 is to specify whether the plaintiff desires [forecloBure of the equity of redemption or a sale of the mort- . premises." Before filing the bill the solicitor should obtain Icates (at as late a day as possible before filing), one from the pstrar of the county in which the lands lie, another from the riff of the same county, shewing whether there are any incum- ncers either by deed or^. fa. against lands. If the decree be for a sale, these certificates must show every inmbrance (except prior mortgages), whether by deed or ^. /a., before and after the plaintiff's mortgage, up to the date of ! bill being filed. But if the decree be for foreclosure, they are |ft»i»». Wilt&n, 1 Cham. R. 268. T» r. ;j .iSi. 1086 PROCEEDINGS IN THE MASTER'S OFFICE. I r I' .5 O 5: I I to show only the incumbrances subsequent to the plaintiff's mi] gage. Assuming that the certificates disclose incmnbranceg { plaintiff's solicitor, at the expiration of the time limited for ans^ ing, obtains from the Clerk of Records and Writs, or DepJ Registrar with whom the bill is filed, a certificate showing the i of the filing of the bill, the fact that no answer or demurrer 1 been filed, and the further fact that no note disputing the amoj claimed by the plaintiflf, as endorsed on the ofl&ce copy of thel has been filed. Mode of obtaining a Deeree in sibch a case. — Take this certiM with the affidavit of service of the biU, and an office copy of tk I to the Registrar, and he will give you the decree on pracipe. The making of the decree in the Master's office will be considj further on. But where no answer has been filed,, and there are no incumbranc\ the practice is somewhat different. .}.( w,t .,l'.'.V Mode of obtaining a. Decree in such a case. — Take the mMk of the Clerk of Records and Writs, or Deputy Registrar, tM] answer, demurrer, or disputing note ^ has been filed, with the aM of service of the bill, and an office copy of the bill, to the hegm take also the mortgage deed, and the assignments thereof {if nt the affidavit of debt, and bill of costs, when the Registrar wi\ prcecipe, issue a decree in which the mortgage account will he tai the costs taxed, and a time and place appointed for payment. This decree, in addition to its qualities as a decree, has thos| a Master's report. The affidavit required before the Registrar should containl matter required by Orde^ 432, which provides that " Wlierel cause is heard upon an order to take the bill pro confes8o'm&\ for foreclosure or sale, and no reference as to incumbrancej required, the plaintifi' is to produce at the hearing : j " I. The mortgage deed and the assignments thereof, if anyJ 1 The note disputing the amount claimed by the plaintiff is usually called the " ditputi»g ix^*" 71 FORECLOSURE OR SALES. !■, 1087 ice will be considd (ire no incumbrancl decree, has thosj ,8 thereof, if any Mtd the "ditpiUinto^' |''II. An affidavit which is to state the amount advanced upon iseoority; the amount paid, whether by receipt of rents, or ise ; and the amount remaining due for principal and inter- distinguishing how much for principal and how much for est. The affidavit is to state whether the mortgaged premises, [my part of them, have been in the occupation of the mort- e, or of any one under whom he claims ; and when there has i any such occupation the affidavit is to state its nature, the ne it continued, and the fair rentable value of the property." [Order 433 provides that "Upon production of such proofs 1 documents, the Court may at once determine the amount due, [appoint the time and place for the payment of the mortgage Dey by the decree, without a reference to the Master, or any her enquiry." 8, however, sometimes arise where the bill contains matter bond the usual statements necessary to obtain a common decree. [these statements are not answered, and there are no incum- Qces, the plaintiff applies to have the bill noted to be taken )mfe88o: this is done by producing to the Clerk of Records [Writs, or to the Deputy Registrar, the* affidavit of service, and \frmpe to note the bill. The plaintiff then takes a certificate of state of the cause to the Registrar, who will give him the ee as already described. where, in a foreclosure suit, an interim injunction had been Qted to restrain the cutting of timber, it was held that the strar has no power to grant a decree on prcecipe, containing a wvision for continuing the injunction. For this purpose the ^nee must be brought on for hearing.^ In a foreclosure suit, iere the mortgagor is the only defendant, and an immediate wee is taken against him, by consent, without any reference or jiiyof payment, a reference cannot be directed as to other incum- Qcers not named in the bill.^ • [Order 436 provides that " Where the defendant answers the admitting the execution of the mortgage and other facts, if te, entitling the plaintiff to a decree, or where the defendant dis- V. Frtman, 1 Chamb. Rep. 350. "■v.lTord, 13 Grant, 690. !:>!rr 4 'W," Rii:. 1088 I f PROCEEDINGS IN THE MASTER'S OFFICE. claims any interest in the mortgaged premises, or where no _ is put in to the bill, the plaintiff is, onpracipe to the registrar, to entitled to such a decree as would under the practice of the con been made upon the hearing of the cause pro confeaso. In any of these cases if there be no incumbrancers, the pr in obtaining the decree is the same as that just pointed out, bnj there are incumbrancers, the practice will be the same as pointed out in cases where there is no answer, but where there i incumbrancers. In all these cases it has been assumed that no disputing ni has been filed. If there has been one filed the certificate of Clerk of Records and Writs or of the Deputy Registrar shall stj the fact, but they in no way affect the getting at the decree excj ting that four days' notice of settling it must be given to the pa filing the note ; and if there be a reference, he will be entitled! the same notice of the proceedings in the Master's office and el[ where as he would be in case an answer had been filed. The result of these orders is that in a suit for foreclosure or sal the defendant is not to be noted in the office of the Clerk of ords and Writs, or of the Deputy Registrar as in default for wan! answer, as pointed out by order 105 ; that order applying to ota cases. If there be no answer, or if the answer admits the executj of the mortgage, and such other facts as entitle the plaintiff i decree, or if the defendant disclaims, the plaintiff ohtainsj decree on prcecipe in the manner already described. If the anff raises a defence, such as fraud, misrepresentation, or such am as requires to be brought before the court at an examination hearing term, the plaintiff must file his replication and go dowij hearing in the usual way. If there be no incumbrancers plaintiff gets his decree and report in one instrument as akej mentioned : if there be incumbrancers, the decree refers the wh matter to a Master, before whom the proceedings on it willj decided in another place. This is the practice when the plaintiff requires no spe enquiries to be made ; for instance, it is sometimes imposf him to say, on considering the abstract, who is entitled to the eqd fU FORECLOSURE OR SALES. -^ 1089 (redemption ; in such a case he should suggest this in his hill, and ; for an enquiry before a Master as to the point. This will take He case out of the orders just mentioned, and whether there are are not incumbrancers, the decree will refer the question to a tster, and the plaintiff will be entitled to all his costs. It must however be understood that there is nothing to prevent ke plaintiff from taking out the ordinary decree referring the whole iseto a Master, even if there be no incumbrancers, and no special jqiries ; but if this course be adopted he will, on taxation, lose all lie costs, except those which he would have taxed had the account len taken before the Eegistrar in Toronto. j In pro confesHo cases where the bill is for foreclosure or sale of ;ed premises, and plaintiff asks for a decree and a refer- ee as to other incumbrancers, as here, without being prepared evidence to shew that there are other incumbrancers, he must My the costs of the reference in case it shall appear to the Master at at the time of making the decree there were no incumbrances 1 the property other than the one in question in the cause.* j The practice in obtaining a decree under Order 38, already re- to, is precisely similar to that already described where the gistrar has power to issue decrees on proecipe. The Order Bply gives to the Deputy Registrar, in the cases mentioned, the le power, and no more, that the Registrar has. The plaintiff duces before the Deputy Registrar the ordinary affidavit of debt Ihis bill of costs; these must be revised, and if the defendant i filed a disputing note, he should be notified of the proceeding, t by warrant, but by notice from the plaintiff"s solicitor. I There is, however, another case in which the practice in obtaining [decree is peculiar, and that is the case of a bill for foreclosure or pe filed against an infant heir, or infant devisee of the mortgagor or against the infant heir or devisee of the assignee of a mortga- Order 434 declares that, " In an ordinary suit of foreclosure le against an infant heir or devisee of the mortgagor, or of the Qee of the mortgagor, where no defence is set up in the infant's llffMOton V, Htward, 4 Grant, 681 ; and see Bumtide v. Lunn, 4 Grant, 581, to the same effect 45 ■k 1090 PROrEEDINOS IN THE MASTER'S OFFICE. m-: t answer, the cause in not to bo set down to be heard in Court by wa' of motion for a decree ; l)ut after the infant's answer is filed oi after the time for filing tho same, has expired, the plaintiff is to fili affidavits of the due execution of the mortgage, and of such othei facts and circumstances as entitle him to a decree, and is to for the decree in Chambers, upon notice to the infant's solicitor." How to obtain this Decree: * ' Preface ajffldavits of execution of the mortgage and aasignm'nm if any, and of the mortgage money .being due — this latter kill same a8 that used in ordinary matters — and Me them ivitk the CI of M. <£; W. in Toronto, Give notice of their filing, and of yml intention, to apply, and at the time appointed the usuul (kcm referring the wJiole case to a Master, will issue. This Order, however, applies simply to the plain cases mentions in it ; for if there be defendants other than those mentioned, thJ case would be taken out of it, and the plaintiff would proceed undei the other Orders according to the nature of his case, regarding thj infant defendant as a person who had only such a defence as i| mentioned in Order 435, but who was entitled to notice of all thj proceedings. Before taking out the decree, the practitioner should have regarij to Order 438. Until the Order of 29th June, 1861, it was a rule i pleading that all those interested in the equity of redemption, ho\i ever numerous, should be parties to the bill. This was found to 1 an extremely inconvenient nile, especially in this country, where i frequently happens that a person buys a block of land, gives mortgage on it, and subdivides it into a great number of lots, whi(j he sells, often by a simple memorandum of agreement never regij tered, to as many different purchasers. The mortgagee, in end& voring to enforce payment of his money, was compelled to ascer the names of these various purchasers, and make them parties his bill. This was frequently difficult to do, and to remedy the ev this Order was made ; and it provides that, " Where it appears col ducive to the ends of justice that parties interested in the equity I redemption should be allowed to be made parties in the Mastei 77^ FORECLOSURE OR SALES. 1091 Joice, by reason of the parties so interested being numerous or lotherwise,^ the Court may direct that parties so interested be made liurties in the Master's office upon such terms as to the Court seems lit; 8uch order to be made only where one or more parties interested lin the equity of redemption are ah-eady before the Court." « The case of Jones v. Bamk of Upper Canada, referred to in the liote, must be received with caution, as will be seen by the remarks I of the Chancellor in Ty Municipality of Oxford v. Bayley.^ Aq order to make persons interested in the equity of redemption I of mortgaged property parties to the suit in the Master's office will not be granted ex paiie ; notice should be served on the owners of I equity of redemption already before the Court, but not on those I proposed to be added.^ Per Mowat, V.C. The practice on this point seems unsettled, for in another case * Ipiagge, V-.C, granted an order to make a person interested in the [equity of redemption of mortgaged property ex parte : — an affidavit of the plaintiff only being used on the application. Where, after a mortgage being given t]\e equity of redemption is severed so that different persons are entitled to redeem in respect of different par- s, those different persons must be made parties in a suit to fore- I close the mortgage.^ This case was decided in 1861, and the Order of which Order 438 is a copy, was promulgated in the same year — probably after this decision. Section HI.— Proceedings on a Decree for Foreclosure, ; Sale or Redemption. The decree having been obtained, the first step is to bring it into I the Master's office. It is directed by Order 441, that "Decrees for foreclosure or sale, where a reference is required, are, after the pro- per recitals hitherto in use, t-o direct, in general terms, that all necessary enquiries be made, accounts taken, costs taxed, and pro- 1 See Joneg v. Bank of Upper CatMda, ante, 12 Grant, 429, where the Court acted on the Order ol June, 1S61, of which tbis is a copy, although it was not a case where any difficulty arose from tht number of parties. tIChun. B«p. 272. 8 Pttmer v. Cannif, 1 Cham. Rep. 861. i Citmntfli V. Barrtaon, 1 Cham. Rep. 369. i Buckley v. Wilion, 8 Grant, 6«6. vr u 1092 PR0CEEDIN08 IN THE MARTER'B OFFICE. ceedings had for redemption or foreclosure (or for redemption orl sale, as the catte rruiy he), and that for these purposes the cause \i\ referred to {naming the Master) : and a decree so expressed is to be read and construed as if the same set forth the particulars contained in next thirteen Orders." One object of this Order is to simplify the decree since the full directions formerly given by the Court in each decree are now em- bodied in the Orders, and thus the expense of constant repetition isl saved. The first enquiry directed is as to encumbrancers. Order 4V2| requires that, " Upon such reference, the Master is to enquire and state whether any person or persons, and who, other than the plain- tiff*, has or h*».ve any lien, charge or encumbrance upon the land andl premises r nbraced in the mortgage security of the plaintiff, in thel bill meationed, subsequent thereto." The next Order, 443, directs that " The plaintiff" is to bring int( the Master's office certificates from the Registrar and Sheriff of th^ county wherein the lands lie, setting forth all the encumbranceaj which affect the property in the pleadings mentioned, and such other evidence as he may be advised." It was a prevailing idea that under this Order the practitioner ia to bring in these certificates dated at as late a day as possible ; anq having, before he filed his bill, obtained an abstract from the Regis] trar, and before he moved for his decree a certificate from th^ Sheriff', it has been usual to obtain a continuation of these befon bringing the decree into the Master's office ; but this is not nece sary, and the costs will not be allowed : fo- aft. *^ie bill is filed, ud subsequent encumbrancer is entitlerl y notice of the proceed] ings to foreclose or sell under a reg od mortgag' * The only encumbrances which the Ma^er need now notice those made subsequent to that of the plaintiff and before the fili of the bill,^ by way of mortgage or other instrument creat .^ charge on the land; such registered decrees of the Court 1 SUt. of Ont c. 20, s. 67. i SUt. of Ont. c. 80, 8. 57. itant repetition ig )f the Court DECKEEH FOR FORECLOSURE, SALE OR REDEM11ION. 1093 Chancery as aro made a lion by*8tatute, and judgments on which a frit of Jieri facia8 or seciuestraticn against landH lias been placed in the hands of the Sheritt' of the county where the lands lie ; of these encumbrances the first two form a lien only from the date of registration in the Registrar's office of the county ; the others from the date of delivery to the Sheriff. The Common Law Procedure Act, 8. 249, provides that all writs of execution, excepting writs of em, shall remain in force for one year from their teste, (and the teste is the day of issue) unless renewed ; and that if so renewed they shall have priority according to the time of their original delivery to the Sherifi*. Having obtained the abstract from the Registrar and the certi- ficate from the Sherifi', the next step is to bring them into the Master's ofiice. Order 444 provides that " The Master is to direct all such persons as appear to him to have any lien, charge or encumbrance upon the estate in question, to be made parties to the cause, and to be served with a notice in the form set forth in schedule T, hereunder written." • The following cases will assist the Master in determining upon the description of creditors to be made parties. G, a creditor of F, under a judgment recovered in 1856, filed his bill to redeem W, the alleged mortgagee, under a deed of convey- ance to him from F, absolute in form. A creditor of W, under a judgment recovered in 1859, ind kept alive by Ji. fa. lands, was made a party in the Master's ofiice as an encumbrancer subsequent to plaintifi". Held, that he could not properly be then made a party • but the plaintifi* was allowed to amend his bill by making him a party, in order that an opportunity might be afibrded him of con- testing the plaintiff's right to treat the conveyance from F to W as a mortgage as against him. Where a conveyance absolute in form was executed as a security only upon a verbal undertaking of the grantee to re-convey upon payment of his demand — Held, that a judgment creditor of such grantee could not enforce his judgment beyond the amount of principal and interest due the grantee.^ In 1 Cfioii V. FreoAIeton, 10 Onmt, 470 Tfr t \ i :!, ii5 is: 1094 PROCEEDINGS IN TH.i: MASTERS OFFICE. suits by judgment creditors for the sale of the debtor's propertyj the debtor is entitled, like a mortgagor, to six months to redeen before the sale takes place. The rule prescribed by the statute 43| Geo. 3, ch. 1, is not applicable to the practice of tliis Court. To a bill by an encumbrancer for the sale of the property, other encumbrancers, whether prior or subsequent to the plaintifl must be made parties in the Master's office, alid the proceeds of thd sale will be applied to pay off all the encumbrances according tq their priorities.^ The practice established by this decisiou (made in 1851) is nov familiar, but the difficulty in its establishment will seen by refemng to the elaborate judgment of the Chancelloa (Blake) in the case. On proceeding in the Master's office upon reference as to encumbrancers in foreclosure cases, it is not necessar to make search in the office of any Deputy-Registrar of the Court! to ascertain whether bills have been filed upon registered judgJ ments, as such bills only preserve the rights of the judgmeno creditors in the particular suits in which they are filid.^ By the repeal of the Act referred to in this case the importano of the point decided was much lessened, but questions may stil arise on it, where titles are being searched. - " t;U ' Where the Mastf r is directed to enquire as to encumbrancers, and there is a dispute between two or more persons as to who arJ entitled to one of the encumbrances, it may, according to circumj stances, be his duty to decide the question himself or to report tha encumbrance, its j^riority as respects other encumbrances, and thd dispute between the claimants, so that the Court may give propej directions for determining the question.^ ■'» ■ 'r'?f I White V. Beatley, 2 Grant, 660. 8 Orainger v. Oramger, 1 Cham. Rep. 241. 8 McDonald v. Wright, 12 Grant, 662. ; '1: V'j iS* ;, M- IN ADDING PAKTIES IN THE MASTER'S OFFICE. 1095 [SicTiON IV, — Proceedingn on adding parties in the Master's Offi^ce. The decree should he brouyht in at the same tirme as the abstract \mii certijicate. This proceeding is ex parte. The Master makes m foUovring entry in his book in pursuance of Order 238 : 1868. John Doe V. Ricliard Roe, I Hit January, 18G8. ^ Mr. Jones, solicitor for the plaintiff, brings in the decree of foreclosure (or sale) in this y cause ; as also the Registrars abstract and Sheriff's certificate, shewing that the follow- ing are encumbrances, viz.: William Smith, and James Robinson. These are hereby made parties in the Master's office, and are I &mted to be served with notice T under Order J^J^,. It the defendant, by bill, has answered, or has filed a disputing note, this fui ther direction should be made. i' " imi / dire/ct that the defendant, Richard Roe, be served with the ^oper warrant." If any defendant, by bill, is also a creditor claiming a lien on the estate as such, the "ollowing further direction should be made under Order 446: "And I direct that the defendant, A B, be served with notice T Vinder Order 446." This Order (446) provides that " The Master, before he proceeds to hear and determine, is to require an aj)pointnient to the effect set forth in schedule T, to be served upon encumbrancers made parties tefore the hearing, whether the bill has been taken pro confesso igainst such persons or not." , Under the Orders of February, 1858» (from which this Order is t-^^ken), it was held that where the bill 'fT 1096 PKOCEEDINGS IN THE MASTER'S OFFICE. ■5 P /'\ was taken pro confesso against the mortgagor, it was not neces to serve him with the notice set forth in schedule B to tlio Orders.^ There are, therefore, three different appointments to be served; I, Where a defendant is an encumbrancer as well as a party the suit before the hearing — he is not made a pan but is served only with the notice T under Order 446, • II. Where a defendant has answered or filed a disputing noteJ .. he is served with a warrant only. This warrant underwritten thus : "To vouch and pn'ove clai/ms — "To settle report ; " To tax coats, arid Mi " To sign report on the. . . . day of . at o'clock . . . . " III. Where an encumbrancer has been made a party in Master's office — he is served only with notice T undj * Order 444. If infants are made parties, a guardian ad litem must be appointi in the usual way before the reference can be proceeded with, as tb guardian will be the proper person to serve with the necessa appointment or warrant. ' i It will be observed that the waiTant is so underwritten as make all its different branches attendable at the same hour, is done as a matter of convenience merely, for it rarely happens th these proceedings in a foreclosure suit may not be completed even less than an hour ; — where, however, any difficulty arises i the plaintiff"s account, or the proof of it — or where any pari interested desires a reasonable time to consider the claims made is the duty of the Master to adjourn all or such of the appointme 1 Baby v. Woodbridfie, 5 U. C. L, J. 67 IN ADDING PARTIES IN THE MASTER'S OFFICE. 1097 its to be served; imay be necessary to a future day, giving such reasonable time as M seem just to all the parties. Under the English practice, it i usual to issue separate warrants, attendable at different days. was the practice at one time here ; and it is even now the ice of sorie Masters to appoint different hours during the same Lyfor these different proceedings ; but this is not necessary, and in , cases it produces delay and inconvenience : for if all the par- i are able and willing to conclude the whole reference at once, lere is no reason why they should be obliged to wait for the arrival I future hour ; and if it becomes necessary to delay any of the edings, the Master has full power to adjourn any or all of lem. The Master, having made the proper entries in his book as de- iribed, signs the notice under Order 444, or the appointment under der 446, or the wan-ant, and gives them out to the solicitor for dee. There is no time specified within which these must be made «ndable. The Master has a right to make them so within two ai days after service ; but it is usual to allow fourteen clear days jelapse between the service and return, in order to prevent the Qsiou which might otherwise arise under Order 445, This der declares that "Any party served with a notice under Order Imtiyapply to the Court at any time within fv^urteen days froin i date of the service, to discharge the order making him a party r to add to, vary, or set aside the decree." It may here be m' itioned, that, where a person, made a party in i Master's office, appears and disclaims, he will not be allowed any i8,as he would eftect the same object by staying away.^ . .. I It sometimes occurs that the party to be served resides out of the nsdiction. Section G of Order 7 of the Orders of 10th January, 3, provided for such a case by declaring that " The time within pich any party served with any petition, notice or other proceed- , other than a bill of complaint, was to answer or appear to the He, is to be tne same as prescribem nothing more than the ordinary proof by affidavit is required by 1lr\ng these costs at $9, Muding the Master's tees, this being the usual amount allowed where a revision taices place. 1102 PROCEEDINGS IN THE MASTER'S OFFICE. III. • Clavm of tlie said James Robinson. Amount of a judgment nceivi-d liy tbtK claimniit agninst the SHi'd Richard Roe, 10th June, 1865, (on whkli a fi. fa. against lands wag placed in the hands of the Sheriff of tho County of on the l8t August, 1866, and duly renewed on the ) for true debt Coats taxed at law Interest on $240 from 10th, June, 1865, to {iait qf rtpart) . .% Fi. fa. goods and Sheriff's fees l f.. " lands and Sheriff's fecH 1 . . , %., " renewals and Sheriff's foesl ....$.. $20l| 4(1 $24] Costs allowed at $ P i Total due on this claim on , 1868 % The accounts having been taken the Master taxes the cost all parties (omitting those of the simple claims just referred and sends them for revision under Order 311. He then entew| his book the particular bank at which the mortgage money will, , his report, be made payable. It is usual to consult the plaintij solicitor as to this, and to name such town and bank as he suggest, but this is optional with the Master. , ,, . , , It frequently happens that some of the parties served do j^-. attend. The duties of the Master in such a case are pointed out! "*-- Order 447, which directs that " Where any person who has duly served with a notice under Order 444, or with an appointmj under Order 446, neglects to attend at the time appointed, Master is to treat such non-attendance as a disclaimer by the pa so making default ; and the claim of such party is to be tber^ foreclosed, unless the Court order otherwise, upon applicatioo dj made for that purpose." Where an encumbrancer has neglected to appear in the Ma office to prove his claim, within the proper time therefor, and app to the Court for leave to come in, the application is more prop 1 The amount " recovered " by a judgment includss the verdict, interest and taxed costs ; in m is the amount for which the judgment is entered. The amounts to be allowed (or)iJq those properly taxable at law. STICE. IN ADDIN^»jjjtj.Q,ju(,e some decisions in ou'- own Court on mortgage dealings isult the plaint!^ a bank as he n^H Where the amount of money advanced on mortgage was less than sum mentioned as the consideration money, the mortgagor is at rty, in taking the account in the Master's office, to show the sum advanced, with a view of reducing the amount of his lity, although he has not appeared to or answered the bill ; he not, however, be permitted to show that the contract was rious. A tender by the mortgagor stops interest.* -j . ,, ties served do are pointed outj ■son who has ith an appointraj ime appointed, aimer by the pa y is to be therd >n applicatioD dj tar in the Ma herefor, and appj n is more prop 1 and taxed costs ; in shd bo be allowed forylM [ And were a mortgagee takes possession of the mortgaged premises, I evicts a tenant of the mortgagor who is willing to continue in ession and pay rent, the mortgagee will be held accountable for i rents from that time.^ If a mortgagee retains possession of the erty after being paid in full, the general rule is to charge him m interest and rests in respect of his subsequent receipts. A \\imynum. 1 Cham. R. 292. Winjv. Campbell, 1 Cham. R. 147. flamifton v. Thomhill, 8 U. C L. J. 7.3. Wl'm V Bower, 17 Grant, 695. • fmnv. Lockvmd, 1 Grant, 647. -.^•i&.t '%. 1104 PROCEEDINGS IN THE MASTERS OFFICE. -4 mSk iBi'lti P 'li I V I fortiori is such a charge proper where a mortgagee resists tli mortgagor's right to redeem.^ The debtor of a mercantile firm being desirous of extending transactions with his creditors, executed to them a mortgage I secure the sum of £2,000 ; subsequent transactions between th parties to a large amount tt)ok place, and during one year alone, d sums charged to the debtor, including the sum due on the mortfa amounted to £30,000, and aftei- four year's dealing between til parties from the time of executing the mortgage, an account wj delivered to the debtor, showing a balance of £1,641 against hin Upon a bill filed to foreclose the' mortgage for the amount, til Court held that the transactions which had taken plaee, flischarg^ the mortgage debt.^ The case of Ee Browne ^ is referred to in this case and comment on as to some extent governing the point in question here. Boi eases came before the Court, the first on appeal from the CommiJ sioner in Bankruptcy in 1851, the other upon the pleadings witl out having been before the Master ; but the same questions miirll easily arise before him in taking the account on a mortgage. In Re Brown the case was, that a creditor who takes a moiVag from his debtor for £2,000 (part of a debt of £2,414 IS 11) an afterwards renders accounts, commencing with the balance £2,414 18s. lid., and taking no notice of the mortgage for til £2,000 ; and in such accounts credits (without any opposition fioj the debtor) sums received after the mortgage given, but before [ fell due : Held, that this proved an appropriation of such sun towards payment of the original debt, including that part of I which was secured by mortgage. , Held also, that in those cases in which parol evidence is admij sible to control the legal operation of a deed, no effect can be giv^ to such parol evidence if it is contradictory, or its accuracy involved in doubt. ■-iH 1 Cnppen v. Ogilvie, 15 Gnint, 568. 2 Buehanan v. Kerby, 5 Grant, 332. 3 2 Orant, 111, and 500. IN ADDING PAI{TIP:s IN THK MASTKR's OFFH'K. 1106 Where a mortgage was to secure advances to bo thereafter made )\a time to time, and interest thereon, and tliere were mutual unts between the paities, the items of which were entered in e mortgagee's books, with the concurrence of the mortgagor who fas his clerk ; Held, that the credits given therein to the mortgagor [fere first applicable to the interest on all -these advances, and then tothe eldest of the principal sums charged.^ Where partnership [Imsiness was carried on in buildings erected by the funds of the upon lands for part of which the patent from the Crown had in the name of one of the partners, parol evidence was ^ received to show whether the land was separate or joint pro- perty.2 A mortgagee in possession of a grist mill and other property lerected a carding and fulling mill upon the premises ; the expense jofthis was disallowed to him as being an improvement that a liortgagee could not make without consent.'' It being doubtful at liriiattime the mortgagor died, his widow and all bis children joined lia suit to redeem in order that all questions under the act abolish- m the law of primogeniture might be avoided ; at the hearing the IConrt gave leave to furnish proof of intestacy by affidavit, with a liiew to making the decree as asked. Semhle, that when a mort- gee is charged with rents and profits received from improvements deby himself, it would be uni'easonable to refuse to allow him lie expense of such improvements to a corresponding amount.* A trader being indebted to a wholesale merchant for goods sup- lied, executed a mortgage in favour of the creditor securing ^3000, nd the creditor having entered into a new partnership, the firm »ntinued to make further advances for several years, during fMch time the debtor made several payments, much more than fould have been sufficient to pay off his original indebtedness, and k fii-m in rendering their accounts to the mortgagor did not bring ithe old debt; — upon appeal from the Master's report, it was that these circumstances were sufficient to show that the «arity was intended to cover a floating balance.* 1 AwT. Perratt<«, 13 Orant, 206. 1 1 SevUm v.J)oranj 3 Grant, 353. 610. 46 tr 1100 PROCEEDINGS IN THE MASTERS OFFICE. •i • 1)5 P li A mortgagor paid the mortgagee from time to time monev pursuance of an agroomont, contemporaneous with the raortgac thatiftve per cent, per annum, in addition to the legal rate of interei 8ho*ri*l he paid on the amount loaned. In taking the account in suit hrought hy the mortgagee to foreclose, the Master gave cred for the money thus paid, as so much money paid on account principal and legal interest. Hel/l, on appeal from the Mastd that he was right in his mode of taking tho account ; — and also, that Sec. 2 of 16 Vic, c. 80. did not bar the right to recover in i action of assumpsit, for money paid in«exces8 of legal interest.' Another case of Quinlan v. Gordon, reported in 7U.C.L.J., 2^ came before the same Master in which the same point was ri He felt bound to follow the decision in Stinsnn v. Kerby, thouglil case of KalnesY. Stacey,^ and another oiiJarvUy. Clark^ had in I meantime been decided in the Common Pleas holding the reverJ Quinlan v. Gordon was taken to the Court of Appeal and reversed,! that the law as laid down by the Common Pleas may now be ca sidered the proper rule. It was held in Kaines v. Stacey that money voluntarily excess of interest cannot be recovered back, nor upon an actii brought to recover the principal, can it be set up as a discharge such principal. In Quinlan v. Gordon, in Error and Appeal, the hi note is as follows : " The defendant gave plaintiff a mortgage certain freehold property conditioned to pay £375 with inten meaning according to the Statute then in force, (16 Vic.ch.80),at per cent. Afterwards the defendent agreed to pay further inte; for forbearance each year, and gave notes for such extra inten which were paid. In taking the account of moneys due to plaintiff, the Court of Chancery credited the defendant with si payments as on the mortgage, and six per cent. — therefore mortgagee appealed ; and it was held that the mortgagor not bei entitled to recover money voluntarily paid on an illegal cent should not have been so credited ; that the account should been taken without reference to the moneys so paid. Stimson v. Kt and Brown v. Oakley, were referred to, and the former ove: 1 Stimson v. Kerby, 7 Grant, 610. 2 9 U. C. C. P. 365. 9 10 U. C. C. P. 480. :C|. IN ADDING PARTIES IN THK MASTER H OFFU'E. 1107 agreement to ad(i two per cent, to the rate of interest re- (rred by a mortgage in conBideration of an extcnBion of the time payment was held iusufticient to charge tlie extra interest upon land.* It will he observed that this is not a case be. .een lortgagor and mortgagee, hut one Ix'tween mortgagee and pur- haser. During the lifetime of a mortgagor, the mortgagee has no ienon the mortgaged property for more than six years' arrears of ^krest, though he may have a personal action on the covenant more; but, in this country as well as in England, after the fiortgagor's death, the mortgagee, to avoid circuity, may, as against lie heirs, tack to his debt all the interest recoverable on the coven- ii} A bargain for extra interest made between a derivative ortgagee and a mortgagor inure ~ to the benefit of the original tf)rtgagee.^ The decree directed a reference to the Master to take I account of the amount due upon the mortgage in question. The ily evidence before th(; Master, besidt^s wliat was used at the ing of the cause, was the affidavit of the personal representa- k of the mortgagee, which stated that he believed the whole Dount to be due. An appeal from the Master's report finding the hole amount due was allowed. Semble, that the onus of proof |nder such a reference rests upon the holder of the mortgage.* In taking the account in the Master's office it is improper to charge mortgagee in posession with annual rests on rents received by him pi he is paid off in full.^ The rule in equity is that the assignee (mortgage takes it subject not only to the state of the account be- ^een the mortgagor and mortgagee, but also to the same equities I affect it in the hands of the mortgagee.^ [Two years after a mortgage had been in part paid off, the agor applied to the mortgagee, to re-borrow the money, agree- ! verbally to return the receipts for the money paid, so that there jionld not remain any evidence of payment, and that the amount ire-borrowed should be considered of the original charge created fthe mortgage ; some, but not all of the receipts were returned to JXtwv. Watson, 17 Grant, 238. I CiiToW V. RobeHnon, 16 Grant, 173. ftMatni- V. Anderson, 15 Grant, 189. Ij jUwW T. Hunter, 16 Grant, 640. fmm V. Hall. 9 Grant, 110. VltPketson v. Dougan, » Grant, 268. i» 1108 PROCEEDINGS IN THE MASTERS OFFICE. the mortgagee, aud the money re-advanced by him upon tbetiJ proposed by the mortgagor ; — under this state of facts, the Mas! in taking the accounts directed by the decree, allowed the mortna the full amount of the mortgage. On an appeal from the Mastj report, held, that the principle upon which he had taken the count was correct, and that the mortgagor was estopped from prj ing the payment of any portion of the original sum advancj (Vankoughnet, C, dissenting)^ This case is valuable as shomM what length the Court will go in giving effect to f'l equitable esti pel. Where a mortgage deed contains no provision as to the apj cation or appropriation of insurance money coming to the hand^ the mortgagee before the time appointed for payment of money secured by the mortgage, he is not bound to applj in reduction of the sum secured, or the interest accruing thereJ until the oxpu-ation of the time allowed for payment of the mortg^ money ; in such a case the mortgagor would be entitled to have I money expended in re-building the premises, aud replacing all pj ties as near as may be in the situation in which they stood befj the fire occurred.^ A mortgagee insuring the mortgaged premises against accident| damage, by fire, out of his own funds, is entitled to receive amountof the policy, in the event of loss, for his own benefit, wij out giving credit therefor upon the mortgage.^ To show the balance due on a mortgage, the party proving claim, in addition to swearing to the balance, produced certJ books in the Master's office, and made affidavit that by tiiese bod the balance claimed on the mortgage could be discovered. NeitB party asked him any questions in reference to them, nor was he asll to explain them, and the Master stated that, on looking at the boo| he could not from ^^lem understand the account. Held, on app from the ruling of the Master, that the oath of the claimant stail ing unimpeached, though not supported by the partial statem^ furnished by him, but which he offered to make complete if 1 InglU V. Gilchrist, 10 Oraiit, 301. 2 AunHny. Siory, 10 Grant, 306. 3 Rtumell v. Hobertion, 1 Oliain. Rep. 78. IN ADDING PARTIES IN THE MASTERS OFFICE. 1109 ired, iom the books, the Master should have acted on it, and al- lied the claim.^ lone partner of a firm gave, as security for half of the partnership lebtedness, a mortgage on his separate real estate ; the other Qer gave an endorsed note for the remaining portion of the Subsequently payments were made to the creditor on account 1 joint debt, which he credited on the note, claiming to hold i mortgage for the entire balance. Held, that an assignee of I mortgagor was entitled to have one half of all sums which [been paid out of the partnership assets on account of the debt lited on the mortgage security.^ In a redemption suit by tlie second mortgagee against the first, it Beared that the equity of redemption had become vested in the first lortgagee, and that lie had entered into possession of the premises, Ihad cut and removed timber therefrom, to a greater value than ! amount due on his mortgage. Held, that the first mortgagee M only bound to account for the value of such timber and occu- jation rent as was taken or received by him as mortgagee, and t for that taken or received in his other capacity, as owner of the pty of redemption, but that the second mortgagee might ask for a [ceiver.^ A mortga; of land, part of which was taken by a Railway lompany, was offers a £100 as compensation for the land so taken, lich he had refused, and the matter having been referred to arbi- stion, £30 only was awarded. On a bill filed to redeem, held, that Bier the circumstances, he was cha ,f^eable with the sum awarded, no more.* A mortgagee of unpatented land, after-certain judgments werere- [istered against him, assigned all his estate for the benefit of his editors. The trustee paid to the Government, out of the trust fete, the balance of the purchase money. Held, that in res- ttofthe sum so paid, he was entitled to priority over the judg- teut creditors.^ 1 BittMck V. Maulson, 10 Grant, 483. 1 1 Jfoore V. Riddell, 11 lirant -iO. ]lS(tmte/v. Broion, 11 Uraut, 114. lSiiw\. M'-Dniiald, 11 Grant, 140. i Mntyre v. Shato, 12 Or»nt, 295. P 1110 PROCEEDINGS IN THE MASTER'S OFFICE. \ Where a reference is directed to take an account of what is dn on a mortgage, it is competent to the parties to show tlie real ol ject for which it is made, if that is not apparent on the face of t| instrument ; and when the In 11 has been taken pro confessu it is i] cumbent on the Master to require the mortgagee to show how t| jmouey secured by the mortgage was advanced, and, semhle, tt /such a course would be desirable in all cases.^ The remarks JEsteu, V. C, in this case have probably induced more strictness framing the usual affidavit of claim on a mortgage than was befo usual. In a suit for foreclosure upf)n a mortgage friven y thepurchasj for part of the purchase money, damage, or loas h u stained by faili of title, or of incumbrances, or charges on the property soil cannot, under the covenants for title, form the subject of a set-c to the amount secured by the mortgage before the amount is certained by action or otherwise.^ A decree was made for the foreclosure of a rrirU^'ttc^e given iilOO, with interest; it appeared by the defends, r; evidence the Master's office, that no money was advanced by the moi gagees ; and the Court held, chiefly on the conduct of the partia and the circumstances of the case, that the mortgage was intend! as a security for a note of the mortgagor's, endorsed by the mo^ gagees contemporaneously with the execution of the mortgag and for any subsequent transactions with the mortgagor grov out of it.^ In this case the defendants gave parol evidence shew the real nature of the transaction, which, Mowat, V.C., sa they, no doubt, were at liberty to do, citing Penn v. Lockwood.* Where two persons were mortgagees, and one of them assigE his interest to the other, the mortgagor was allowed credit against the assignee for goods delivered to the assignor un notice of the assignment.^ It frequently happens that the Master is called on, in taki accounts on mortgages, to allow a higher rate of interest than 1 Sterliiuj V. Riley, f> Grant, :M3. 2 Hamilton v. Banting 13 Grant, 484. 3 BrownUe v. Curmingham, 13 Grant, 586 4 1 Grant, 647. 5 Oalbratth v. Morrimn, 8 Grant, 289 IN ADDING I'AUTIES IN THE mXsTER's OFFICE. 1111 jied by the mortgage, upou some agreement subsequent to its ae^ution, but not under seal, and expressing no consideration. lie case of Brown v. Deacon^ states the rule on this point : — an JBBtrument under seal may be varied in equity by an agreement i)r valuable consideration, not under seal. A written promise by I mortgagor, after default to allow more .than the six per cent, in- terest reserved by the mortgage was held to be binding on the jnthority of the Alliance Bank v. Broivn, 10 Jar. N. S. 1121 ; though there did not appear by tlie writing to have been any consideration of forbearance or otherwise for such promise. And in a subsequent ase where it was stipulated in a mortgage that up to a certain day the interest to be charged should be eight per cent, and if the prin- opalwere not then paid, twelve per cent, should be theroafter charged, it was held that the stipulation for payment of twelve per cent, was net by way of penalty, but an agreement to pay that rate from the iay named.^ The court is disinclined to countenance agreements fcr liigh rates of interest, and in one case ^ it was doubted whether the amount of interest (24 percent, in the particular instance) re- med by a mortgage, may not be so great as toevidence such a case of oppression as would induce the court to refuse to interfere in be- half of the mortgagee, leaving him to his remedies at law, notwith- rtandiug the repeal of the ursury laws. In one case a decree was pronounced in favour of the mortgagee where the rate of interest lasSO per cent, per annum, and Spragge, V. C, allowed the decree to join Goodhue v. WiddiJieUl, observing that it may be urged that the e intended when they abolished the usury laws, that all remedies both at law and in equity should be open to the Where the plaintiff is in possession as mortgagee of the mort- sed premises, the Master should charge him with occupation rent ip to the day appointed for payment; so, where it appearea that mortgagee under such circumstances had been charged with patiou rent only to the date of the Master's report, and had ce continued in possession, the final order was refused.* 1120tiBt, 198. pfadrffC V. McCall, U Gr»ut, -211. iSoodAiK V. WiitUfield, 8 Orant, 531 ; lind !' IN ADDING PARTIES IN THE MASTERS OFFICE. 1113 .ed at the suit of I ike the accounts lipon his security, he shall not be entitled to his costs both at Law jeA iii Equity, unless the Court sees fit to order otheiwise." The Ijillowing cases have been decided on this point. Where it is shown Ijat a mortgagor has for the bona fule purpose of preserving the Igrtgage premises from destruction or delapidation instituted pro- m\va<^ at law to obtain possession of the. property, he will not be jbrived of his costs in equity.^ In a subsequent case'-^ it was lieid that where a mortgagee proceeds both at law and in equity , lie cannot, in the absence of sjjecial circumstances to justify the Ijitoceedings, elect to take the cliaucery costs instead of those at Itommon law, if the defendant objects thereto. The result of these cases is that a^ the Court does not interfere Ifiththe costs at law, it will not [)er.nit the plaintiff to recover his Ijosts in equity, unless special circumstances are shown, and the mi-6T will in such a case, refuse to tax equity costs, unless an Iflerof Cburt for that purpose be fiist obtained.^ The Master having tukcn. the accounts, settled the priorities, and laiel the costs, sends the bills for revision, and on their return liierts the amount as revised in the report, and having signed it, Ipves it out as already mentioned. It is provided by Order 44)9, pt'Tlie Master's report must state the names of all persons who Ikave been made parties in his office, and who have been served Ifith the notice or appointment hereinbefore provided, the names Irfsuch as have made default, and must settle the priorities, &c., of jaieh as have attended, and these latter are to be certified as the py encumbrancers upon the estate." The report having been filed and no appeal being made from it, lie plaintiff waits until the time appointed for the payment of the jmoney in foreclosure and sale cases has elapsed. It was formerly necessary for the party entitled to receive the money, or some one koiding a power of attorney for the purpose, to attend at the place indicated by the report (usually the office of the plaintiff's solicitor) jtong the time specified or a portion of it ; but that practice is [iltcred by Orders 255, 25G, and 257 already referred to. 1 ^lla* V. Goto, 1 Cham. Rep. 66. *«irv Taylor, 1 Cham. Rep. 371. 1 ';t (hitario V. Winnakrr, VA Grant, 443. ^s^m .HI 1114 PROCEEDINGS IN THE MASTERS OFFICE. P P V, Although the practice of making mortgage money payable at private office is discontinued, yet there are cases where other monel may be made payable at a place other than a bank, betwe certain specified hours, and as to tliese the principle of the followinj cases may apply. It is not necessary for the mortgagee to reiua at the place appointed by the Master's report during all the tinJ limited for the payment of the mortgage money ; his attendaiKJ so early as to allow a reasonable time for payment of tli mortgage money before the expiration of the hour named will sufficient.^ In a sub equent case an application was made for the final decre of foreclosure, default having been made in payment of the amouc found due. The affidavits showed that the agent of the plaintJ had attended for fifteen minutes of the two hours appointed fd payment. Esten, V. C, doubted when the motion was made if thj attendance had been sufficient to entitle the plaintift' to the finaj order ; but after taking time to look into the authorities, he order the decree as asked to go.^ It may here be noticed that mortgagee cannot be compelled to receive payment before the da fixed, though the full amount of principal and interest up to thi^ day be tendered.^ The Court will, where it is necessary, chan the place appointed for paying mortgage money ; but only personal service of the order on the defendant whei-e he has nd appeared by solicilor.* Where a mortgage was made to secure partnership debt, a final order of foreclosure was granted, althougj one of the co-partners had not executed the power of attorney receive the mortgage money, or made affidavit of non-payment,! appeariiig that such partner was, and had been for some timd resident out of the countrv. and had never interfered in mortgage transaction in any way.^ But in a later case, a suit for foreclosure or sale was brought ihe mortgagees residing in Scotland, the defendants then bein resident in this country. Since proceedings had been institut the defendants had removed from the Province two beiD 1 Saundermm v Gaston, 2 Orsrat. 436 ; decided in 1851. 2 Mitchell •■• Hntjes, 1 Cham. "bsp. 56. 3 Brown v. Cni*. 14 Sim. 427. 4 Jonet V. Bartrv , 1 Grant, 3^ . 5 Counter v. Wyldc, 1 Grant, is IN ADDING PARTIES IN THE MASTERS OFFICE. 1115 liesident in England and another in California. Default had been de and the plaintiff moved for an order absolute for sale. I There was no affidavit of non-payment by the plaintiff's, but the Lent in this Province negatived the payment.^ In a suit of foreclosure by the executor, and devisees of a deceased mortgagee, where the executor alone had attended at the time and appointed, and it did not appear that the debts of the estate been paid, the attendance was held sufficient and the final order was granted.'^ And where the mortgagee had become bankrupt and he and his assignees filed a bill to foreclose, the final order was granted, though one of the assignees, on account of his ibsence from the country, had not executed the power of attorney or made an affidavit of non-payment."^ Where the day aj>pointed fell upon a Sunday, the final order I was refused, though attendance had been made on the Saturday Mid Monday preceding and following.* Where a mortgagor sought to set aside a final order of foreclosure on the ground that mesne I incumbrancers had not been made parties, an application made by for that purpose seven months after the date of the final order, I was refused, as the objection could and ought to have been made at tie hearing, or in the Master's office.^ Where the decree of fore- dosure is erroneous, the Court will refuse to pronounce the final order of foreclosure on default of payment.^ Where mortgage haoney was ordered to be paid into an agency of the Bank of Upper Canada, and afterwards and before the day appointed for juyment, the agency was closed ; on a motion to substitute ano- ther bank at the same place, /TeZtZ, that a new day for payment [must be fixed, and the order served.^ It is only necessary now to obtain from the cashier, manager or I igent of the bank where the money has been made payable by the report, as soon as convenient after the day appointed, his certificate 1 MtKeehnie v. McKechnie, \ Cham. Rep. 42. S Mm V. Parker, 2 Grant, 555. J kman v. Kirkpatriek, 2 Grant, 625. * Boleumft V. Leach, 3 Grant, 449. 5 Cameron v. Lynet, I Cham. Rep. 42. 5 Cmnmrcial Bank v. Graham, 4 Grant, 419. ' 111? V. Conrwr, 1 Cham. Rep 274. p 5 if 1116 PROCEEDINGS IN THE MASTERS OFFICE. of the non-payment,^ but before moving for an order of forech or sale an affidavit of the non-payment must also be made h^ party entitled to receive the money, or his agent. If the affidav made by an agent, the remarks made ante respecting an affidai claim by an agent will apply to that now required to be usedb the Court on moving for the final order of foieclosure or sale. affidavit of non-payment should not be made on the day the lu is due, but subsequently.^ It will be convenient now to consider the subsequent practii the following different cases, and their subdivisions : 1. Where the case is foreclosure between mortgagee mortgagor or their assigns simply, and the mortgagor t assignee pays.^ II. Where in such a case the mortgagor makes default, III. Where there is a subsequent encumbrancer in a case of closure, and he makes default. IV. Where in a similar case there are several subsec encumbrancers, and they all make default. ' V. Where in case of a decree for sale, there are no ei brancers. VI. In a similar case where there are encumbrancers and all make default, or where one redeems. , si •I I. And first, where the decree is for foreclosure between m gee and mortgagor or their assigns simply, and the mortgag his (wsigiue pays. In this case it is directed by Order 450, in case of payment by any party according to the report, the to whom payment is made, is to convey the premises free anc of all encumbrances done by him, and deliver up all deed writings in his custody or power, relating thereto, upon oath party making the payment, or to whom he may appoint." 1 Order 38, under which Deputy Registrars issue the decree where the case is between mortj mortgap:or simjily, is noticed in another place. 2 Blong v. Kennedy, 2 Chain. Rep. 463. I- RS OFFICE. IN ADDING PARTIES IN THE MASTERS OFFICE. 1117 ale, there are no encumj (age of this description the time appointed for payment by the feport shall be six months.* It not unfrequently happens that the mortgagor h()])iDg event- mlly to redeem his property, but being unable to make the pay- ment at the time appointed by the report, applies to the Court for iurther time. The following cases and orders will explain the practice on this point : In offering a luotioTi to enlarge the time for payment of mortgage money found due by the Master's report, the mortgagee swore that in consequence of non-payment by the mortgagor, he had been obliged to raise money to meet liabilities of iis own at a rate much beyon oao u.ifr^H v Yati 11 4 EdivardM V CurUiffe, 1 Madd. i!87 : tsrmord v, «oupooi, XCh. Rep 262 ;//o«/c^d vFot*. 1 1 J 677; Anon. Bam. 221 : Cocher v. Biers, 1 Oh. C. 61 ; Ford v. WasUU, 6 Hare, 229. 6 Hanny v. Edwards, 4 Kuas. 125. 6 Ayre v. Hansoii, 2 Beav. 479. 7 Cootiibe v. Stewart, 18 Beav. 111. IN ADDING PARTIES IN THE MASTERS OFFICE. 1119 Le money when invcste*! on his undertaking to repay them nhould Itlie decree be reversed.' The order will in all cases proceed to Iforeclose the mortgagor upon non-payment at the appointed time of sum, upon the conditional payment of which the order is liiide^ and if the condition be not complied with, the order of Ifcreclosure absolute may bo made as of course, and its discharge has jlieen refused with costs. ^ ; though it was sworn to have been Ijbtained by surprise and ponding a treaty V)etween the parties. JBotthe order has been discharged if the mortgagee, ^\v his own act (isby receiving rent) vary the amount due between the date of ■llie order, enlarging the time, or the Master's report made thereon, Ld of the order absolute."* The time for payment of mortgi/o money was exten'led where it JiiB shewn that the defendant was liauipered and hindered in sell- [ or raising monej on the lands in consequence of an advertise- hent signed and circulated by tl'.e plaintiff's solicitors. Under the pve circumstances the motion was granted without costs to the Ipliintiff.* A defendant seeking to open foreclosure should shew lioine reasonable excuse for not redeeming at the proper time, also Itkt he has a prospect of paying the mortgage debt if time be given llim, and that the property is of much greater value than the lunotmt due." II. Secondly, where in a foreclosure suit between mortgagee and \wrigagor, or their assignees simplg, default is made in payment at mtime and place appointed by the report. In such a case it is directed Iky Order 451 that "In default of payment being made according liothe report, the plaintiff is to be entitled, on an ex parte appli- jation, to a final order of foreclosure against the party making de- Iknit." This order is obtained on production before the court of the prtificate of the Bank manager verified by affidavit,'^ and the affi- I'inefc V. Shaw, 20 Beav. 566 See, also, Joneii v. Cresicieke, 9 Sim. 304 ; Oeldard v. Hornby, 1 H»re, 251 ; 2 Keen, 212 ; Ellis v. Griffitht, 7 Beav. 83. 1 Umrdt V. Cunliffe, 1 Madd. 287 ; Eyre v. Hanson, 2 Beav. 478. \ymtv. Robertt, McClel. & 7. 667. 1 Imoord v. Claypool, 9 Sim. 817, note ; Nanfan v. Perkins, 9 Sim. 808, note ; Crompton v. Earl »/ Efinghatn, 9 Sim. 311, note ; Jones v. Creswicke, 9 Sim. 304 ; Ford v. Wastell, 6 Hare, 229 ; 2 Ph. 591 ; Lee v. Heath, 9 Sim. 306 note. Wwour V. If j/«r#, 2 Cham. Rep. 179. \ll 4^ ^ \. Wc^ 23 WIST MAIN STMIT WiBSTM,N.Y. U5M (716)«72-4S03 '4fS o V r 1120 PROCEEDINGS IN THE MASTER'S OFFICE. ^fi*i' davit of non-payment by the plaintiff or his agent. This allidavi should negative ail receipts of money on account of tlie mortL'ac possession, and receipt of rents and protits.' « The manager of the Bfvnk wIk re mortgage money is directed he paid, should certify that the money has not been paid before well as on or since the day appointed.* The practitioner should tai care that the report be confirmed by being filed fourteen days befoJ the day appointed for payment of the mortfjjage money, otherwiJ the final order will not be granted, and a. new day must )i appointed." Where the plaintiff in a foreclosure suit resides out the jurisdiction, and an application is made for a final order foreclos'MT. f.he afllidavit of non-payment being made by an a'»ent( the pla'-Vir, it must be shewn where the custody of t'uj mortgaJ has beeE.* And where co-mortgagees are made co-plaiutiffs in] foreclosure suit, the affidavit as to non-payment on whic'i to obtiiinj final onlti of foreclosure sliould be made by all of them, as eitli( of the plaintiffs miglit have r(^e(nved tiie money.'* On an applicatiq for a final order for foreclosure, where the affidavit of nou-naymeJ of the mortgage money is made by an agent of the plaintiff, it shou state that he is authorized to receive the money." On an appliii tion by a company for a final order for the sale of mortgaged prj perty, the affidavit of the officer of the company as to nou-paymeJ should shew that he is the proper officer to receive the niortgaj money.^ Where on an application for a final order for foreclosur the usual affidavit of the plaintiff shews that he has been in occj pation of the pro})erty, it must he referred back to the Masttrl take a new account, set an occupation rent, and appoint a new d^ of payment, although the plaintiff in his affidavit swears that has been in occupation merely as care-taker, and has received rents or profits from the property.* On an application for a fiiij order for foreclosure where the plaintiff resides out of tlio juii^di tion, and the affidavit as to non-payment of th<" mortgngo moneyj 3 m 1 Sciilfv. MvDnnell, 1 eham. Rep. 10.3. 2 FarreU v. Stok*», 1 Cham. Re]). 201. 3 Mountain v. Porter, I Cham. Rep 207 ; and see L«t v. Smith, and SparkaU v. Sogrri, refern in Dirkty v. Heron, ICharo. Rep. 140-150. 4 Rat V. Shato, 1 Cham. Rep. 200. The vane pohit waH decided on the same day in 5(«rd<|| Lotorey. 6 iinnwv. Wilson, ICham. Rep. 217. Povieri V. Merritnan, 1 Cham. Re]). 226. A similar decifion vm given a few day* subMqueDtlyj Spraffge, V. C, in Mituhell v. Limng$tnne. 7 Weitem Auuranee Conmany v. Capreol, 1 Cham. Rap. 227. 8 Cwnmer v. Tomlinvm, 1 Cham. Rep. 936. FN ADDING PAHTIKH IN TIIK MASTER'S OFFICi":, 1121 »few days •ub*quentW Ldeby his solicitor, it must be shewn that the pla:ntiff has no Uber agent within tlie jurisdiction autliorizedto receive the money.* In applying for a final order for the sale of mortgaged premises, it ig necessary that the usual affiduvit of tho plaintiff should legative possession, and tho receipt of rents and profits.' On an ipplication for a final order for the sale of mortgaged property, it j not sufficient for the plaintiff in his affidavit of non-pa}rment to irear merely that he has not been in possession, or in tho receipt (i( the rents and profits, he must also negative possession, and the Kceipt of rents and profits by any one in his behalf.^ A motion br a final order for the foreclosure of mortgaged property is an ex firte proceeding. It is uiiecessary to serve notice thereof even on jD^t owners of the equity of redemption who have answered.* there on an application for a final order for foreclosure, the usual iffidavit is made by tb^- agent of the plaintiff, the authority of the i^ent need not be produced ; as to that it is sufficient for him to near that he is the duly authorized agent.^ Mortgage money had ID ordered to be paid on the 19th December ; default being made, the QBual Bank certificate was obtained on the 20th December, and B 10th February following, an application was made foi a final vder for sale. Held, that the Bank (>(;rtificate of 20th December, king the only one produced was too old for the court to act upon." Ihen a party entitled to a final order for foreclosure neglects to iply until nearly two years have elapsed from the time his right the order first accrued, the order will not be granted ex parte? jOn an application for a final order for foreclosure the Bank certi- ieite of nonpayment shall be made by the cashier, or other like leer. A certificate of the accountant is not sufficient.^ The order of 29tli June, 1861, directing money ordered to be paid I some Bank, does not apply to a suit by a vendor to enforce his bfor purchase money. In a suit of this nature in applying for 1 1 rtyior V. Cuthbtrt, 1 Chain Rep. S40. I tmftfi V. Lymbumer, 1 Chain. Rep. 27ft. I ttri r. Jm»$, 1 Cham. Re)>. 291. Uinitrtany. Cotmtn, 1 Cham. Rep. 297 1 JUdety/i! V. Duffy, 1 Cham. Rep. 302. [•ffunlT. Seymour, 1 Chani. Rep. 332. \UH9gk V. Orchard, 2 U. 0. L J. ^. S. 308. \\CmpbeU V. Garrett, I Chain. Kvp. 256. It was allefrod, but not vhewn in tha aAdavitM, that th« Konuntant wan actinif as inariaifor pro tern. Had thia been stated in the affldavits, the order *('Uld probably have neen (frantci. 47 » 1122 PROCEEDINGS IN THE MASTER'S OFFICE. the final order for sale it is not necessary that the affidavit of thJ plaintiff as to the nonpayment should negative the fact of pogsej sion, or the receipt of rents and profits.* Where the plaintiff (J mortgagee) is in occupation of the mortgaged premises, the Mast should charge him with occupation rent up to the day appointe for payment ; so where it appeared that a mortgagee under suci circumstances had been charged with occupation rent, only to tli date of the Master's report, and had since continued in possessioil the final order was refused.* Where a bill of foreclosure has beel filed by the executor and devisees of the mortgagee, and the ei ecutor alone attended at the time and place appointed by tfa Master for payment of the mortgage money to the plaintiffs, as i did not appear that the debts of the testator had been paid, tli court considered the plaintiffs entitled to the absolute decree foreclosure in default of payment.^ It seems that the plaintiff not be entitled to the absolute order of foreclosure against a subs^ quent mortgagee and the mortgagor unless he be in a situation 1 re-convey the legal estate in the mortgaged premises.^ On the order being granted, it will be issued by the Registrai The next step, and the last, is to register it in the County Regisw office. This is done under the "Eegistrationof Titles [Ontario] ActJ and the mode of doing it is this : Obtain from the officer with whoj the bill was filed a certificate of the lands as described in the biU produce this to the Registrar in Toronto, and he will give a certj ficate of decree of foreclosure ; take this to the County Registr^ and he will register it ; and this completes the title of the morj gagee. He has now the full fee simple untrammelled by the mor| gage. It sometimes happens, however, that after taking the aecouutj the Master's office, and before the final order for foreclosure been obtained, the mortgagee receives moneys on account, or go into possession, or collects rents, thus changing the state of ac^^ount. This waives the default, and a final order will not 1 Sawdon v. Heatty, 1 Cbam. Bep. 216. 2 Pipe V. SImfer, 1 Cham. Rep. 251. 3 Evaiu V. Parker, 2 Onuit 656. 4 Rose V. Tkompeon, 1 Cham. Rep. 624. IN ADDING PARTIES IN THE MASTER'S OFFICE. 1123 Ipnted until a new account be taken, and a new day of payment lijfpointed. Our Order 467 provides tliat " Where the state of the Itfconnt ascertained by an order, or by the report of the Master, is l^ged by payment of money ; by receipt of rents and profits ; by jittupation rent or otherwise, before the final order for foreclosure |i sale is obtained ; the plaintiff, or other party to whom the ortgage money is payable, may give notice to the party by whom ; same is payable, that he gives him credit for a sum certain to I named in the notice, and that he claims that there remains ' in respect of such mortgage money a sum certain, to be also Qed in the notice." And Order 468, that " Upon the final order r foreclosure or sale being applied for, if the Judge thinks the DB named in such notice proper to be allowed and paid under circumstances, the order for final foreclosure is to go without tier notice, unless the Judge directs notice to be given." Order provides that " The party to whom the mortgage money is lyable may apply in Chambers for a reference to a Master, or an appointment to fix such sums respectively ; and in the tier case, either upon notice or ex partem as the Judge thinks fit ; Ithe order to be made thereupon is to be served, or service of dispensed with, as the Judge directs." And Order 460 "the party to whom t ich notice is given may apply in Cham- i for an appointment to ascertain and fix, the amounts proper I be allowed and paid, instead of the amounts mentioned in such lice ; or, for a reference to a Master for the like purpose ; and I ease the Judge thinks a reference to a Master proper, the same ly be made «a; parfe, unless the Judge otherwise directs." The et of these orders is to lessen expense, and enable the plaintiff I obtain his final order without the delay of a new reference to I Master, where the account had been changed, but it is not Bperative on him to proceed under them, and the cases tided on the former practice are therefore still applicable. It been held that where, after default, the mortgagee merely ersinto possession, it would seem that the default would not I wived, at any rate if the occupation rent be shewn to be less the amount of interest accrued since the day appointed, so «t the account would not be changed.^ ^WMftMib V. Blod, 1 Cham. Rep. 60. p 1124 PROCEEDINGS IN THE MASTER'h OFFICE. It has been held under the order of June, 1861, which ig gnl stantially the samo aR these orders, that where the account changed in a foreclosure suit after the Master's report, audanolij of credit is given, such notice shall be given before the pointed for the payment.^ III. Thirdly, where there is a subsequent incumbrancer in aj(i\ closure case, and he makes default. In such a case the plainti proceeds to obtain a final order of foreclosure against the inci brancer in the same way as he would in the case of mortgagor an mortgagee simply : having obtained the order, he filos a copy the office of the Master to whom the case stands referred. It be recollected that the decree issued under Order 441 is to be read] if it set forth the particulars contained in Orders 442 to 454,inclaBiv (being the thirteen mentioned in tlmt Order). It is directed one of these, (Order 452), that " All subsequent accounts are fro time to time to be taken, subsequent c its taxed, and necessary pn ceedings had, for redemption by, or foreclosure of, ihe other par or parties entitled to redeem the mortgaged premises as if specif directions for all these purposes had been contained in the decre Proceeedings after brin ing in order for foreclosure. — Fileaeo of the final Order with the Master, take out a warrant for senmi the mortgagor or defendant hy bill, if he has answered or filed a di puting note, which undeiwrite; '^to take subsequent accounts; tl subsequent costs, and settle and sign subsequent report ;" serve andp^^ ceed on this warrant as already described. On the return of the warrant, the plaintiff attends with an a^ davit stating that since the making of his former affidavit he hi received nothing on account, and denying receipt of rents and p| fits, or (if the fact be so) that he has received money on accou or has been in the receipt of rents, or has been in possession. Master then proceeds to take the subsequent account in the sa way as he did the first one, taxes the costs, has them revised, a^ signs his report in the manner already described. In appointing the time for payment, the Master will give tl mortgagor only three months ; the incumbrancer having had sil 1 Knottinger v. Barber, 1 Cham. Rep. 268. IN ADDING PARTIES IN THE MASTEKS OFFICE 1126 L case has now become one of mortgagee and mortgagor simply, Ipi the remarks already made as to the practice in concluding the liotin such a case may be applied here. IV. Fourthly, where there are several subsequent incumbrancers, in utaie for foreclosure, and titey all make default. lu a case of this description, the report will direct payment in |ii months by the last incumbrancer of the amount found due to lUie incumbrancer immediately preceding him ; in case of default, lifnal order of foreclosure must be obtained against the last in- 1(10)' aiicer, a new account is taken, and the last of the remaining rncumbrancers is directed to pay the amount found due to the one liDinediately preceding him in three mouths, and so on until the lnortgagor is reached, who will be directed to pay the mortgagee I'l three months. In case of payment by any incumbrancer, a new liefoimt is taken, and the case is worked out until the mortgagor |i reached in the way already described, who is entitled to only Ifliree months to redeem.^ Under the old practice this was all done under separate decrees, Iktnowthe practitioner obtains his final order for foreclosure in [the maimer akeady described upon each default ; and then pro- leeedR, before the Master Uiider the decree upen each successive de- [yt, taking the subsequent accounts, taxing his subsequent costs, [ind filing the report on each occasion, until all the parties are fore- }ed ; and this he does without resort being had to the court for liDything excepting the final order for foreclosure upon each default. [I'pcn each occasion he must furnish before the Master the usual [iffidavit shewing the state of the account at the time, as has been [ilready mentioned. When the first incumbrancer has been fore- Bed, the case becomes one between mortgagee and mortgagor, [« their assignees, simply, and the suit is terminated in the mode [ilready described in such a case. In order to obtain possession, Order 464 provides that " In a suit jlw foreclosure or for redemption, the mortgagor or other person j entitled to the equity of redemption, being in possession of the > See ifdasiA V. ira«on, 1 Chaiu. Uep. 368. ^ 1 1 ff 1126 PROCEEDINGS IN THE MASTERS OFFICE. premifles foreclosed, may be ordered to deliver up possession of tlj same upon or after ftnal order of foreclosure, or for the dismisgl of the bill, us the case may be.'* An application under this oidj cannot be made ex parte. Notice of the intended motion must ! served and an order drawn up thereon, which must also be proptri served, and possession must be demanded.^ This order applies oi to mortgage cases; the remedy thereby given being intended lieu of the action of ejectment, which a mortgagee out of poFsessid is prevented from bringing, at the risk of the costs of his proceedin] in this court.^ P It was held under the Order of 29th June, 1861, (of which Ordi 464 is a copy) that a mortgagee is not entitled to an order for tH delivery of possession as against the tenants of the mortgaga although such tenancy may have begun after the mortgage w| made.^ An order for the delivery of possession is only made agaii persons not parties, when they acquired possession pendente from a party to the suit, and have no pretence of having a mount title, though the rule may be somewhat broader in the ca of receivers and sequestrators.* An order to deliver up possesai^ of mortgaged premises after final order of foreclosm-e, will not 1 granted ex parte ; notice must be served ; it is not necessary hoj ever to demand possession.* Where more than three years hi elapsed between the final order for foreclosure, and an applicati^ for the delivery of possession of the mortgaged premises, the con required an affidavit shewing the circumstances of the possesgij since the final order, and that the defendant had never relinquish! possession.^ On an application against a mortgagor to deliv possessioii of the mortgaged premises after a final order for foJ closure, it must be she-wni that the mortgagor is actually in possd sion.' On moving for an order for delivery of possession it must j shewn that the defendant is in possession. No order will be ma against a tenant or third party in possession, not a party to I cause.^ 1 yeviuex v. LdbtMe, 1 Cham. Rep. 18 ; see Lazier v. Ranney, t* Grant, 823. 2 Mavety v. Montgomery, 1 Cham. Rep. 21. 5 Bank of MotUreal v. Retehum, 1 Cham. Rep. 117. 4 Bank of Montreal v. Wallace, 13 Grant, 184. 6 Hodkinson v. French, 1 Cham. Rep, 201. 6 Irvinn v. Jfwnn, 1 Cham. Rep. 240. 7 Hodkinson v. French, 1 Cham. Rep. 223. 5 MisRemie v. Wigyins, 2 Cham. Rep. !)91. 7^ IN ADDIMU PARTIES IN THK MAHT£]l'» OFFICE. 1127 Tbe fact that an ejectment suit has been brought by the mort- e, and it pending, is no bar to obtaining the usual order for gession after final order for foreclosure ; bi t in such a case the ifderwill be granted only on the terms of discontinuing the action it law, and paying the costs of it. A delay ol' two years after the inal order for foreclosure is no bar to obtaining ; the usual order for lOfiBesBion.* Where an application is made by a purchaser for an cder against a mortgagor for the delivery of possession of the property, and of the title deeds, notice must be served on the jljintiflf (the mortgagee), or if he be paid off to some other party interested in the proceeds of the sale.'' Where the decree by over- light contained no direction as to giving up possession, a supple- lental order directing the delivery up of possession was made, but inpayment of costs. A motion for such an older was considered ■ore properly a motion for court than chamb3rs.' A motion for ielivery of possession must be made on notico.* An application k an order of possession can not be made the means of trying the light to possession between a landlord and his tenant, or a tres- passer. Where, therefore, a mortgagor's tenant had attorned to the mortgagee, and afterwards such tenant left the premises, and they fell into the hands of another party, an order for possession igainst such party was refused.* On a motion for delivery of possession, the court will not, as a general rule, look behind the Imal order for foreclosure. Where co'^ts were not asked for by the aotice, or on argument, and no demand of possession was proved, le order for delivery of possession was made without costs.* Before proceeding to consider the practice in sale decrees, it will [be convenient to point out the course to be adopted where an incumbrancer redeems the plaintiff, and where a second or other rabsequent incumbrancer redeems the first, or any other one prior I to himself. The Master has power, under Order 452, to work out the decree in such cases, without resort to the Court. If the first I or any other incumbrancer redeems the plaintiff, the carriage of the decree then becomes his as a matter of right. The .plaintiff vf-.' • I Mo/att V. WhiU, 1 Cham. Rep. 227. t WtUctr V. Matthews, 1 Cham. Rep. 232. 3 lawn V. Setuy 2 Cham. Rep. 30. tBwkley v. OuuUtU, 2 Cham. Rep. 439. 5 Seott V. Black, 8 Cham. Kep. 323. ( HilU V. Choata, 2 Cham. Rep. 874. if 1128 I'lKX.KEDINGS IN THE MASTERS OFFICE. ;)5 1$ is bound in such a case, under Order 460, to convey the premig to the party redeeming, or whom he may appoint, free and cle of all incumbranceu done by the plaintiff, and to deliver to tj party redeeming all deeds and writings in his custody or po\i relating thereto, upon oath (if required). The party redeemiii after having obtained an order for forecloHuru against the inci brancers prior to him, if any, takes out a warrant, underwriting! ** A. B., haviuif redeemed the pUuntlff ; to take siibseiiuent atcoantt tax iubseqtient costs, and settle and s'ujn subsequent report" This I served upon the mortgagor if he have answered, or filed a di ing note, and upon all subsequert incumbrancers, but not on i plaintiff, for his interest in the suit has now ceased ; nor on aij incumbrancers who may have been foreclosed ; and on its retu the Master proceeds to take the account as in the cases ahea mentioned, with this exception, that in addition to the stateme^ in the affidavit of the party redeeming, of the amount still due I him on his own original claim, he should state the amount pt redeeming the plaintiff. He is, liowever, entitled to claim for til full amount of that claim as proven in tlie suit, with subsequently terest and costs, without regard to the sum actually i aid by bin but he is not entitled to claim more than six per cent, on til amount, although the debt in respect of which he has redeeme| may have })een drawing more. Therefore, although the mortgag or other security, which he has paid off may bear ten per cenll the Master will cempute subsequent interest on the amount dJ at the time of the redemption, at the rate only of six ; but this i^ terest will be computed on the whole sum paid by the party deeming, although it includes interest and costs. The Master his report in this case will give to all the subsequent incumbrance^ three months to redeem the incumbrancer who has redeemed tlf plaintiff, appointing one day and hour for all as before, and in caj of redemption by ahy one of these, the decree will be worked this second party redeeming, as it was by the party first redeen rng. I'l-, Nt f n SETTING AHIDK ORDERS FOR FORECLOSURI.. 1129 Setting asUle orders for foreclosure, and enlarging the time to redeem. Where there are eevoral plaintiffs in a Buit, and a fina) order of closure had been obtained by their solicitor, Held, that their (icitor could not afterwards move on behalf of the defendants closed, to set aside the order for foreclosure, though two of iplaintiffs concurred in thd application, and only the third ob- And where mortgagors had been foreclosed, and the ■tgagees had subsequently sold the property, it was held that the igagors could not, several years afterwards, move in the suit ^st the final order of foreclosure, on the ground of irregular- ly, without having made the purchasers or their assignees parties I the suit.'^ A decree of foreclosure absolute, drawn up and en- i, was set aside at the instance of a purchaser of the equity of demptioii, whose interest was acquired after the institution of I suit to foreclose, but without notice of it.^ A foreclosure decree Dot be opened at the suit of a plaintiff, who admits part of the xee, and impeaches the rest.^ If the decree of foreclosure has been led by fraud or collusion, the Court will open the foreclosure.' V [Of enlarging the Time to redeem, and of opening the Foreclosure. [ The mortgagor may be relieved from the strict terms of that part ^ihe decree in a foreclosure suit which directs payment of the re- nption money on a certain day, either by a postponement of that ^y, or by an actual openiiig of the foreclosure, after the day has «D suffered to pass without payment. The application is made I motion by the person entitled to redeem, or it may be made at ) bearing of a special application, by the mortgagee, to make the closure absolute.^ . . . ,; . ; .Itisonly in a foreclosure suit, as a general rule, and not in a snitfor demption, that this indulgence is granted ; because in the latter e, the mortgagor comes to the court for relief, professing that bis llMton V. The Don and Dan/orth Road Cotnpany, 1 Cham. Rep. 329. l!J)i(l,lChuaIlep. 386. llfliBionlv. Campbell, 7 Grant, 96. IjfKekv. Ward, 11 W. R 186 ; 7 L. T. N. S. 413. I'ifliiJv. ManuU, 2 P. Wma. 73 ; Oore v. Staekpole, 1 Dow. 18 ; Harvey v. 7'eNmtt, IJ. 4 W.197. |*CUy V , 9 Sim. !J17, d. ; Leev. Heath, Id. 807, n. ; Alden v. Foifer, 6 Beav. 6S2. p 1130 FKCXJEUDINQS IN THiC MASTKltS OKFIOE, moiioy 18 ready, ])ut, in a foreclosure suit, he rcdooms by comiJ sion.^ So the mortgagor will not bo HufTcred to redeem after day appointed in a rrdemption suit lias paKncd, and before an v orij Las been made to dismiss the hill, though he tender tl'o princii and interest due to the day of the te.uhir.'^ But it seems, that,! special circumstanees, this relief can also l)e had in a suit ut | demption.^ Upon good cause shown, the court does not stop at a single ^ largement. Keliof has been given throe, and even four times succession, and this, although the time fixed by previouH orderii enlargement have been thereby expressed to be peremptory, id even though the mortgagor have undertak'.n, by signing the Res trar's book, not to ask for any further time,* But the time is not enlarged, as of course, even upon the application. Some reason (though a very strong one is not ne<| sary) must be given ; as that the defendant has used his endeavours to find an assignee without success, but that if timq granted there is a reasonable prospect of getting the money;] that negotiations for th*at purpose are actually pending. And [ magnitude cf the sum involved, and of the arrears of interest, circumstances to which weight will be given, but not it seems to| latter, if the arrears have been suffered to increase.^ But something more than this seems necessary upon subsequ applications ; such as evidJBnce^ that some steps have been actuj taken, as the result of which the money is likely to be forthcor And a strong case of unexpected delay or difficulty must be out to support a third or fourth application. Under the usual circumstances of an application by the gagor, by reason of his being unable to raise the money in timj is necessary to show that the estate is an ample secmity fori debt,^ which fact was formerly stated on the face of the ordj 1 I/ovotielsH V. WakefleU, 17 Ves. 417. 2 Faulkner v. Bolton, 7 Sim. 319. . ', 3 Tipping v. Hawet., 10 Aug. 1810, cited 17 Ves. 417. 4 Anon., Barn. Ch. 221 ; Edwards v. Cunliffe, 1 Mad. 287. 6 Nanny v. Edwards, 4 Russ. 124 ; Eyre v. Haiuon, 2 Beav. 478. 6 Hol/ord V. Vate, 1 Kay & Jo. 677. 7 Edwards v. Cunliffi, 1 Mad. 287. 8 Byre v. Hanson, 2 Beav. 478 ; Edwards v. CunUffe, 1 Mad. 287 : Nanny v. Edwardt, 4 Hu , Anon., Barn. Ch. 221. 9 Getdard v. Hornby, 1 Hare,2il. OF RNLAROING THE TIME TO REDEEM. 1131 here, liowevor, n necessity for enlarging the time has arisen from .opening of tlio account by the act of the mortgagee, the order I be made, although the security appear on the evidence to be of obtful Hiitiicicncy ; but care will be taken that nothing is added (the delay to the amount of the debt.* [the period granted upon the tirst application is usually six ontlia, and it does not appear, that any longer time has been lied at once. The like period has also been given on a subse- lent application, but the usual period has then varied from five to t months, according to the circumstances. Tbe order commonly directs, that the time bo 'inlarged upon liyment'^ by the mortgagor to the mortgagee, on or bei" cthoday riginally fixed for jiayment of the the principal, interest, and cobt.s itbe amount certihed to be due for interest and cost'! on t^e mor+ ge; Imt where tlie large sum of 8,00()i. was duo loi* intrrept, the iordcr was iriii'- on payment of 3,000/. only on accou it of in- mst.* The general condition of payment of interest will not be xed by reason of the infancy of the person entitled to redeem.* ii if, from the circumstances of the case, or the shortness of the ral b' twoen the time of application and of payment under the icree, th(3re is likely to be a difficulty in making the payment in bie time, the Court will direct enlargement on payment of the ^rest and cost in a month, or some other convenient time from idate of the order."' And if there be any doubt as to the suffi- bcy of the security, the condition will also be imposed of Dediate payment of the interest to accruedue down to the day fixed tthe ultimate payment of the mortgage debt.® If the time fixed for payment be likely to expire before the iDg of exceptions [objections] to the report i^certificate] which w the time of payment, the court will either enlarge the time on ! usual application, or^ if the defendant omit to apply, a new day Ibe appointed, even after the exceptions [objections] have been ffenuled. llftWard V. Hom6s/, 1 Hsre, 261. llfiiiMrdi V. Cunliffe, 1 Mad 287 ; SeUjii, 197, Ed. 2. |lflol/wd V. Yate, 1 Kay & Jo. 677. I Cmbe V. Steioart, 13 Beav. 111. \\m V. Bamon, 2 Beav. 478 ; Qeldard v, Hornby, 1 Hare, 261. IjftWoni V. Uontby, 1 Hare, 251. - • litoiwiMv. Cooper, 1 Sim. 4 St. 361 > n g , s 1132 PROCEEDINGS IN THE MASTERS OFFICE. Where the right to redeem is in dispute, and time is required prosecute an appeal, the object of the coui-t is to make an ord^ which, without touching the decree, will yet secure to the persd redeeming the recovery of the money which the decree requires hi to pay. In such a case^ the terms imposed will be the payme^ into court of principal and ari'ears o^ interest, consent to a roooivi and payment of interest from the filing of the bill, or payment principal, interest, and cost of suit and of the application. Tl amount paid in will be ordered to be invested at the risk of t| applicant ; '^ and if the dividends or any interest be ordered to I paid to the mortgagee it will be upon his undertaking to repay t| same upon the reversal of the decree. , It appears to luivi' been liiutcd, that the mortgagee's refusal! produce the title deeds for the mortgagor's inspection, although! court would not order such production, would be a good reason enlarging the time f but this opinion, if it were really express^ seems open to great doubt. The order will in all cases proceed to foreclose the mortgad upon non-payment at the appointed time of the sum, upon the cd ditional payment of which the order is made.* And if the conditj be not complied with the order of foreclosure absolute may be m^ as of course, and its discharge has been refused^ with costs, thou it was sworn to have been obtained by surprise during a trej between the parties, and notwithstanding an affidavit by the tenj in possession, that he was willing to purchase the estate for ; than twice as much as was due on the security. But the order i be discharged if the mortgagee by his own act (as by receiving rel vary the amount due between the date of the certificate and of j order absolute.* i: The court will also appoint a new day for payment of the mj gage debt, after default has been made on the day first fixed; even after enrolment of the decree, or of the order absolute for fJ 1 Monkhorue y. Corporalimi of Bedford, IT Ves. 380 ; Finch v. Hhaw. 20 Beav. 668 ; md »• Ei V. Yate, I Kay & Jo. 677. 8 Fineh v. Shaw, 20 Beav. 655 ; see Taylor v. Wattrt, 1 Myl. & C. 266. 8 Per Lord King, Mos. 246. 4 Edteards v. CuiUiffe, 1 Mad. 287 ; Eyre v. Hatuoti, 2 Beav. 478, and other oa«e«. 6 Jonet V. Roberte, McClel. & Y. 667. 6 Hd/ord v Yaten, 1 Kay 'V Jo. 677 ; see statement of the cue. f^} OF ENLARGING THE TIME TO REDEEM. 1188 ) Beav. 656 ; wd «e« Bi jure.* Aud this has been done in favour of the heir of the mort- or, where the hitter was foreclosed on his own consent, given by ig the registrar's book.' then the applicant must not only show that he will be able (redeem, if further time be given, but he must also account satis- itlorily for non-payment at the proper time. ^^ The expectation that the money will be ready, founded upon a ity already commenced with a proposed assignee ; ignorance of eonlirmation of the master's repoi't ; misinformation as to the by fixed for payment ; irregularity in the proceedings of the suit, ||tior to the order a))8olute ; the illness, or accidental inability to ivel, of the person charged with payment of the money, and Terty, which could be shown to be but temporary, are mat- I which in the various cases^ have been admitted as reasons for Qting further time, after the enrolment of the decree for fore- sure. ,-'•. K The order to enlarge the time after enrolment of the order ab- rinte, will be made without vacating the enrolment, and may lerefore, it is said, be made by a puisne judge, without leaving lom for the objection that it aifects an order of the Lord Chan- llor.' M f'.', »■,}■• [The time of payment may also be postponed, by reason of some I done by the mortgagee ; as if, being in possession, he receive itB, or other moneys on account of the estate, after the sum due been certified,^ because the amount being then varied, the onnt must be carried on, and a new day fixed for payment. I may be done on the motion of either of the parties. And if fe person entitled to redeem make objection, the mortgagee will the suffered to verify by affidavit the amount received, and pay tfolirv. Bevii, 1 Ch. Ca. 61 ; latiword v. Claypool, 9 Sim. 317, ii. ; Nanfan r. P«rKtw, OSim W, n. ; Crompton v. Earf of EMngham, id. 311, n. ; Jones v. Creneieke, id. 304 ; Ford v Vatun, 6 Hare, 229 ; 2 Pli. 591 ; Lte v. Heath. 9 Sim. .306, n. I i>«yT. Wordneorth, 9 Sim 817, n. llMethe cu«8 eited above, and see Joachm v. UcDoxmU, 9 Sim. 314, n. : Ford v. WaHtU, 6 Hare, I »; 2 Ph. 591. |*mr. Wattell ; ThomkUl v. Manning, 1 Sim. N. S 461 wttere it is said to have been Sir J. UsTun'a Impression that tlie enlargement leaves the on*— absolute untouched (and see Itmoord ^Claypool, Sim. 817, n.) But Sir J. Wiyrrani naid, tbkv (he order should be to vacate the en- nlintnt and ditcharge the order absolute on condition uf pai3rment, and on non-payment the OTer absolute to stand. Bee also frompton v. Lee,9Si'n. 311, n. : Nanfanv. Perkim, id.308,n. ■•Mrkt V. Jackton, 4 Beav. 154 ; Alden v. Fogt'r, 5 Boav. 692 ; BUi* v. dhifithi, 7 Be»v. 83. M 1134 PROCEEDINGS IN THE MASTER'S OFFICE. it over at oik ."s.* The mortgagee is not on the other hand entitli to any right to postpone redemption, after the day fixed for pa ment, until payjJient by the person redeeming, of sums which haj been subsequently added to the debt, in respect of another securitl because this would be to alter a decree upon an interlocutory appl cation.' - ?5 is It seems also, that it is not the practice' to put the person redeer ing, upon terms of immediate payment of the interest and coal when the time isthus enlarged by reason of the act of the mortgagd but the order has been made in that form,* where there was adoul as to the sufficiency of the security. ' The foreclosure may also be opened^by the act of the raortgageej if he sue the mortgagor upon his covenant or bond, where tl estate proves insufficient to satisfy the mortgage debt. And tlii though the decree have been signed and enrolled.® The mortgagee, it will be remembered has a general right to enforj all his remedies at the same time. Now, if he proceed first upd his covenant or bond, and obtain part payment of bis debt, he mJ still foreclose for the residue ; but, if he proceed by foreclosure tir^ and then, finding the estate insufficient to satisfy the debt, goes i to sue upon his covenant or bond for the deficiency, equity will oe permit him to do this, upon giving a new right of redemption toti mortgagor ; for if the mortgagee take his legal remedy first, t| mortgagor retains his right to redeem, and the mortgagee ought) by electing to take the estate first, to be able to get both it ami t| debt. And the rights of the mortgagor and mortgagee being correlati? the latter is not entitled to sue for the deficiency after foreclosuij unless he can give to the mortgagor his reciprocal right of redtn tion. So that if, by selling the estate to a stranger, the mortgag be prevented from redeeming, equity will also deprive the mortgag of his right to sue for the deficiency, and will not suffer him to i 1 Buettanan v. Oreenway, 12 Beav. S66 ,- but see Oxenham v. EUit, 18 Beav. 693. 2 Barron v. Lanetfteld, 17 Beav. 208. 5 Buchanan v. Greenvmy, 12 Beav. S66, and other cases above. 4 Geldard v. Hornby, I Hare, 261. 6 Cook V. Sadler, 2 Vem. 236. « DathtDOod v. Blytkieay, 1 Eq. Oa. Abr. 317. rn r)F ENT.ARQINO THE TIME TO REDEEM. 1135 I his own act, as a reason for suing, without giving a new right of lemption.^ I II seems consistent with this principle, that if the estate have I put up for sale, and bought in by the mortgagee, or a trustee rliim, the rights of the parties should remain as if there had been [sale: because the estate, or the power of reconveyance remains ithe mortgagee, and redemption can still be had. It seems, in , to have been the opinion of Lord Thurlow, in such a case, [the mortgagee might proceed at law, and anoflferwas made Lo nlinue the injunction against the judgment, if the plaintiff would Lg the money into court. But the bill of the mortgagor was not tly for redemption, but only for delivery of the bond, and for I injunction against the judgment; and it was not said, whether mot the condition of redemption should be attached to the right Hue* ..f. , ^ • " '' . I In a note supposed to Ijave been made by Richards, C. B.,^ when ithe bar, it is said to have been held in this case, that the mort- i may sell, and also sue on his bond, there being no reason iy a lender should lose part of his debt, and not be able to en- ne his additional security. But this strikes at the whole rule, kh, permitting the mortgagee to sue first, and then to foreclose, iiins him from suing after foreclosure, without giving a new ^t to redeem; a rule which is consistent with equity, and a loper check upon speculating mortgagees. The lender has ample us of security. He is not bound, at the outset, to lend his iey upon an estate of the sufficiency of which he cannot assure elf. Before the foreclosure is complete he may use all his nedies at once, and if he foreclose he has a chance of profit. ty then should he complain, if the estate turn out of less value 1 the debt ? It has been said,* that until the estate ue sold he not tell its value, and therefore does not know whether his lit be satisfied or not. But, if a purchaser out of possession can Ige of the value of the estate to buy, the mortgagee in posses- ican surely form as good an estimate. VlMtart V.Hardy, 9 Be»v. 849 ; and see Tooke v. Hartley, 2 Bro. C. C. 126 ; 2 Dick. 786 ; »nd I '"TSiv. Barker, 8 Ves. 527, and 1.3 id. 108. Vrnt V. Hartley, ^ Bro. C. C. 125. The correctness of the report has been disputed, and the con- won of the ai^iruments as stated is such, that there cannot be said t* be any clear authority on , tMpont. ' |i S« 8 Bro. c. C. Belt's ed. 4 Lloyd v. Mamell, i P. Wmi. 78. kjr s $ 1186 PROCEEDINGS IN THE MASTER'S OFFICE. The foreclosure will also be opened if the decree have bee obtained by false evidence,' or other fraudulent or collusive^ pra tice ; as other decrees are set aside under the like circumstancesj So an estate was h^ld* to be redeemable, notwithstanding I release of the"equity cf redemption, more than twenty years olj and a decree of foreclosure by consent, more than five years olJ signed and enrolled ; because the release was made upon a seer trust to pay the mortgagor an annuity, the land being also of mJ greater value than the debt. And after sixteen years a decree hi been opened,* under the concurrent circumstances of a great e] cess in the value of the estate, and the distressed condition of t( mortgagor ; the last circumstance being probably an indication i oppression on the mortgagee's part ; for the court is generally n^ willing to open a foreclosure after long acquiescence, especiallyl buildings or other improvements, or settlements, have been ma on the faith of the decree, and where the foreclosure has been consent ; and has refused such relief after six years.^ ,,,^ The decree will not be opened after it has been signed and rolled, on the mere ground of the overvalue of the estate (thonj it has been said that a sale at an undervalue would be a substal tial objection on a bill to set aside the sale),'' or of parol decla tions concerning the mortgage if there be no fraud.^ And a so filed for redemption, on the ground of parol declarations by tl mortgagee, both before and after the decree, that he was willij to take his money, the fraud being denied, was dismissed costs." Nor can a mortgagor be relieved against a decree of foreclosn obtained by consent upon unwritten terms, alleged to have be agreed upon by the solicitors of both parties, and with which mortgagee afterwards refused to comply, by a suit for performaij V 1 Lloyd V. Matuell, 2 P. Wms. 73. 2 Harvey v. Tebbutt, 1 J. » W. 197. 3 Oore V. StaepooU, 1 Dow. 18. 4 Morley v. Elteay*, 1 Oh. <'d. 107 6 Burgh x. Langton, 15 Yin. 476. „, . . , fl Tode V. Bithop of Ely. 15 VIn. 476, note to pi. 1 ; Lant v. Cntp, Id. 469; Pleetwodf.Jtn a Atk. 467 ; and see Thnrnhitt v. Manning, 1 Sim N. 8. 451 ; and we Jone^ v Kendrum. . Cm. Abr. 602. 7 Per Lord Manner*, C, Lightbumt v. Swift, 2 Ba. ft Be. 207. 8 WhUhall V. Short, 7Vin. 397. 9 Rotemrriek v. Barton, 1 Ch. Ca. 218. r r] OF BNLARGINO THE TIME TO REDEEM. 1137 uthe agreement : parol evidence of the terms of the agreement ItBDg inadmissible : but it seems, that upon sufficient parol evi- Ijenee, the foreclosure might have been opened, on the ground that lie agreement concerned an order of court, and was made by iHrBons competent to agree upon its terms.^ The foreclosure will not be opened, by reason that the mortgage |lig been mentioned by the mortgagee in his will as a debt,* as lioitgage money, or as an interest in property mortgaged to him;^ \u tiie property will pass by the will, according to the actual IjBterest of the testator. circumstance that a decree for sale, erroneously directs jiyment of the surplus money to the tenant for life, will not be a Imson for opening the decree after a lapse of some years, if the [lie have been fairly conducted, and there were in fact no surplus;* ougb the objection would have been substantial, if a surplus had Uy been paid to the tenant for life ; and redemption may be rds decreed of an estate which has been sold by the mort- e, under his power, if due notice were not given according to ideed.* If the mortgagor have not insisted at the hearing of a foreclosure . or on the taking of the accounts, upon his right to redeem, he ht not to be admitted to redeem afterwards, except upon new ter. And apon filing a bill for redemption, after he hag acquiesced in I foreclosure decree, the time for redemption under that decree ht not to be enlarged on motion ; because,^ notwithstanding I foreclosure, the plaintiff will have the benefit at the hearing of f equity which may arise upon his redemption bill. If an incumbrancer who seeks to open the foreclosure and to re- Q, on the ground that he was not a party to the suit, be in an core station and his means doubtful, he will be ordered to give ity for costs in case he do not redeem.^ IlftiT. Petli. i Bio. C. C. 834. ; . , ., , IjR* T. Biilkop 0/ £Iy, 16 Vin Abr. 476. n., pi. 1 ; 2 Eq. Ca. Abr. 608. IIMtrwktM^ V. Sehiott, 8 Ves & B. 46 : Legroi v. Coekerell, 5 Sim. 884. Vlmwney. Swift, 2 Ba. & Be. 207. IjlH AnitA V. Fox, 6 Hare, 886. 6 Fleelwtod v. Jamen, 2 Atk. 467. |i Wt. Qandy, 7 Yin. Abr. 45, pi. 20 ; 2 Eq. Ca, Abr. 261, n ; and Ree Stevewt v. Wmiam, I Sim. •'■ 8. M5. 48 1 1 1 'b. 1138 PROCEEDINGS IN THE BfASTER'S OFFICE. The Court will not interfere to open foreclosure in aid of a de fendant who has heen guilty of laches, and shows no effort mad on his part to avoid foreclosure or save his estate.^ Where a pi chaser of the equity of redemption paid the amount found due the plaintiff, it was held that this was a payment by the defendan] or some one on his account, and the final order of foreclosure m set aside.' ^ •-t t m - 9 it-' ■I- pi| . 1 H :.*) »«» ::''il V. Fifthly, where in case of a decree for sale, there are no incun hrancers. If in a suit for sale of the mortgaged premises, there be no id cumbrancers, a sale takes place after the expiration of the six montl given by the report, the proceedings to obtain an order for sale aj ter default are the same as those in obtaining an order for foreclosurj When obtained, the plaintiff brings it into the Master's office, an files a copy ; but the practice under it will be considered in anothd place. It may here be noticed that on moving for an order ab8(j lute to sell for default of payment of the sum fc ^nd due by tli Master, it need not be shown that any incumbrancer, besides til plaintiff, attended at the time appointed by the Master for payme]| of the several incumbrancers.' VI. Sixthly, in a similar case, zvhere there are incumbrancers, an they all make default, or tvhere one redeems. Sale decreestdiffer from those for foreclosure in this, that tlj Master enquires as to all incumbrances as well prior as subsj quent to the plaintiff, (other than prior mortgages), and the repoj appoints one day and hour for the debtor to pay all the ckims. default of payment, the plaintiff after obtaining the fi« -i^ sale, as already mentioned, proceeds to sell in the ^v,;y .o . cribed. If the debtor should pay off the plaintiff, aii ; jumbraj cer may obtain the carriage of the decree, and proceed to sell fl the benefit of himself, arid any other unpaid one, as the decr( inures to the benefit of the creditors until they are all paid, or tl| property is sold, and the proceeds distributed. 1 BroUun t. Uoyd, 2 Chun. Rep. 110. S Eeid V. Cooper, i Cham. Rep. 90. 8 /nine ▼. Whitehtad, 1 Cham. Rep. 10. PROCEEDINGS UNDER AN ORDER FOR SALE. 1139 are no incun wnihrancers, an It may here be remarked that Order 456 provides that, " An in- nbrancer made a party in the Master's office, and entitled to, and ig,^ a sale of the mortgaged premises, is to make the necess- ^deposit therefor, before the Master's report is settled, whereupon ) Registrar is to issue an order on pnecipe, directing a sale of the wrtgaged premises, instead of a foreclosure, and thereupon the fiter is to compute subsequent interest, and appoint a time and e, or times and places for payment, and all subsequent pro- ags are to be taken and had as if the decree had been in the ; instance a decree for sale." A sale, however, will not be order- the instance of subsequent incumbrancers until after the igagor has had the usual time to ::deem.^ Proceedings under an Order for Sale. Order 463 provides that " If the decree directs a sale instead of closure on default in payment, then a default being made and I order for sale obtained, the premises are to be sold with the probation of the Master, and he is to settle the conveyance to I purchaser in case the parties differ about the same, and the chaser is to pay his purchase money into court, to the credit of cause subject to the further order of the court." And Order [that "The purchase money, when so paid in, is to be applied I payment of what has been found due to the plaintiff and the other tcnmbranoer or incumbrancers, (if any), according to their tiorities, together with subsequent interest and subsequent its when computed and taxed by the Master." Order 374 pro- fts that " Where a sale is to take place under an order of the t, no copy of the order, or any part thereof, is to be brought I Chambers, or the Master's office, but the original order is to 1, unless the Judge or Master requires a copy." It is usual Hi more convenient to have a copy on file, upon its being brought Chambers, or the Master's office. And Order 375 provides "An appointment or warrant in respect of the sale is to be lined from the Judge or Master, and served upon all necessary ttes." Il'l* Order 429, and ante as to the encumbrancer's right to a sale. 1 1 iw and Loan Company v. Reynolds, 2 Cham. Rep. 41. Tn this cane the subsequent incum- I mncen had made default in payment according to the Master's report, and did not apply until "tor the default had occurred. 1140 PROCEEDINGS IN THE BIASTEB S OFFICE. The neoeesary parties are, the defendants by bill who hav answered or filed a disputing note, and all parties who hav proved claims under the decree. The warrant is underwritten ** To settle advertisement of sale under decree dated — Order 376 provides that ** At the time appointed thereby, the par having the conduct of the sale is to bring into Chambers or tt Master's office, a draft advertisement, but no particulars or coo ditions of sale, or any draft or copy thereof." And Order 377 tha " The advertisement is to contain the following particulars : " I. The short style of cause.* " II. That the sale is in pursuance of an order of the court. "III. The time and place of sale. " IV. A short and true description of the property to be sold. " V. The manner in which the property is to be sold, whether i one lot or several, and if in several, in how many, and what lot " VI. What proportion of the purchase money is to be paid dov by way of deposit, and at what time or times, and whether residue of such purchase money is to be paid with or without iuteresj " VII. Any particulars in which the proposed conditions of sa differ from the standing conditions." Advertisements for sales under the direction of the court shou be as short as possible, the short style of the cause, and a sboj description of the property and improvements is sufficient, and i merely formal parts such as convey no information to intendii purchasers should be inserted therein.^ < An advertisement for the sale of property under decree, shou set out all the improvements on the property, otherwise it will 1 referred back to the Master to re-settle the advertisement, and aj point a new day for sale.* 1 It may hero be noticed that Order 697 provides that, "In all proceedings in a cause, MWt I petitions in the nature of bills, decrees, and decretal orders, the following short style of i^ shall be sufficient : " Betvoeen John Smith and others, plairUiffa, and Riehard Roe and ^ de/endantt." In case of prooeedings which it has been the practice to entitle more sit thus, "Smith v. Roe," sudi practice is to continue. 2 Baxter v. FitUay, 1 Cham. Rep. 880. 8 Hvutard v. Ridiout, 1 Cham. Rep. 244. PROCEEDINGS UNDER AN ORDER FOR SALE. 1141 Where the title or the proof of it is involved in no difficulty, a liODiiitiGn of sale that " The vendor is not to be bound to give any \(c'\dence of title, or any title deeds or copies thereof, other than such L m in his possession, or procure any abstract," was held to be tteiy objectionable, and should not be sanctioned by Masters even [ijr consent,^ The duty of the Master in settling conditions of sale |i well pointed out in this case. /* ' Order 378 provides that ** At the time named in the appointment Iff warrant, the Judge or Master, is to settle the advertisement, to Ifathe time and place of sale, to name an auctioneer, where one is Itobe employed, and to make every other necessary arrangement pre- Uratory to the sale, so that nothing may remain to b^ done but to jissertthe advertisement, and all the before mentioned matters must Ike done at one meeting, nan^ 3ly, upon the return of the appointment Iff warrant, where it is practicable, and no adjournment of such lueeting is to take place, and no new meeting is to be appointed for |liie aforesaid purposes, unless it is unavoidable." Under a decree for the sale of land or a competent part thereof, liigtbe mortgagor's duty to see to the parcelling out of the lands l^eoted to be sold, and if the mortgagor considers that too much li offered, he should urge the objection at the time of settling the lidvertiBement, and it should be stated in the anvertisement that |the ansold lots will be withdrawn from sale when the debt is real- led, if that course is intended to be taken. The confirmation of a de may be opposed before the Master, and the sale disallowed on onnds which would afford material for a motion to set aside the lale. Where the confirmation of a sale is opposed on the grounds |(j there having been an unnecessary number of lots sold, the pur- er should be notified. Semhle, the objection will not prevail linst an innocent purchaser, when urged against the confirmation report on sale.^ Where a party interested in the equity of ion is dead, and his heirs are out of the jurisdiction and own, the court has jurisdiction in a suit by the first mortgagee lata subsequent mortgagee and the Attorney-General, to direct I Bale of the property, and tiie proceeding cannot afterwards be set llXcDnwldv. Oonlon, 2ChMn. Rap. 186. ^ , " u/nKdiy allowed by some of the MiintcrH Ims been excetftlve. The ince should not be Uhh than 9ft nor more than $iiO, exce^ . o^i llarye ttulen) • The auctioneer is not entitlud to a pur centago. Ho can recover (more than the Hiun nanietl hy the Ma.stor, and if he should re- to make the necessary affidavit of tlie sale the Court will him ; when he undertakes the sale he becomes an officer of Court, and is bound by its directions. A duplicate of the Iveiiisemeut, as settled, should be filed ; the other is taken to the pater by the plaintiffs solicitor, who also takes care that the era are properly printed and distributed. The posters are a ipy of the advertisement. It is the practice in England for the iief Clerk to settle also the conditions of sale, but this is not to (done here,* excepting in so far as they appear in the adverdse- Dt. Order 382 provides that " Ihe advertisement is to be erted by the party conducting the sale, at such times and in such ner as the Judge or Master appointed at the meeting before Kntioned " — in Order 378. It may here be noticed that each party interested in the process (the sale has a right to the sale being a cash one ; but this right ^frequently waived, and, by consent, time for payment of a portion (the purchase money is given, and a mortgage taken securing it tiuch rate of interest as may be thought reasonable. [ The advertisements having been duly published and the posters ibuted, the property is put up for sale by the person appointed. der 383 provides that " The Master, or his Clerk, is to conduct where no auctioneer is employed." It is usual, however, to iploy an auctioneer, and one of the Judges is said to have intima- that this mode is the more satisfactory one. In England, a ling paper is used in which each bid is entered as made, «,nd I is signed by the bidder ; but this practice is not adopted here. :384 provides that "Biddings need not be in writing, but a itten agreement is to be signed by the purchaser at the time of I) , ,;--.v,: -* .; .-' : The sale being concluded, an affidavit of the auctioneer, of publisher of the newspaper, and of the bill-poster, is brought the Master's office and filed. It may here be remarked that,! the English practice, the newspapers themselves are filed, that was the practice here ; but it was found in many cases where the publication was made at a distance, the papers co not be obtained. As it would be inconvenient to annul sales sii because the publishers of newspapers had been negligent in warding the copies of the papers, the practice arose of receiv an affidavit of the pubhcation, referring to a slip cut out of paper containing the advertisement. On filing these paper warrant is taken out by the party conducting the reference, wh he underwrites thus, ** To settle report on sale.^' This is ser on all the parties who were entitled to service of the warrant settle the advertisement ; but the purchaser is not to be ser On the return of this warrant, the Master, on being satisfied! the affidavits filed, that his directions as to the sale have b| complied with, makes out his report on the sale. Order 387 vides that *' The report on sale is to be in the form set fortli Schedule Q., or as near thereto as circumstances permit." is filed in Toronto, and becomes absolute, without any order i firming it, at the expiration of fourteen days after filing, previously appealed from. Where property has been put up| sale under an order of the Court, but the sale has proved abor for want of bidders, the property may be advertised and pulj for sale again without further order.^ ^.^.^ ,. !, . Where a sale has proved abortive by reason of the purchij refusing to complete the contract, a re-sale will be grs parte ; but if any relief is asked against such defaulting purcha notice must be served on him.^ In such a case the Master, in preparing the report on the should state the same facts as to the publication as he woulj case of a sale, and should then follow the form of report giver Schedule Q. , . 1 Slurvmod v. CompbeU, 1 Cham. Bep. S99. : ^ «. Martin v. Purdy, 1 Chun. Rep. 268. i rl] PROCEEDINGS UNDER AN ORDER FOR SALE. 1149 tiepresamed that if, upon the warrant to settle the report on li. it should he offered to be shewn to the Master that there had I improprieties committed, such as collusion between the party ducting the sale and a purchaser, by which the property was I for less than it would otherwise have produced, the Master I authority to enquire into this, and may receive evidence on it; and if he finds any improper conduct established, it 1 be his duty to refuse to confirm the sale. In such a case the (becomes simply abortive, and a new advertisement may be tied, and another sale had without any further order of Court. ;t, his finding may be appealed from. The following case I brought before the Court on an appeal from a Master's cer- ate : One of the testator's sons bid at* a chancery sale of his Jier's property ; such bidding being by those present supposed I for himself, but being in reality for another person, who had «tly employed the son to bid under the expectation that there 1 be less competition against the son t]: -^u against a stranger, I property was knocked down to the son, but the contract «upon was signed by his principal ; and it appeared that the iofthe son's bidding, being supposed to be for himself, had been to ler others from bidding ; the Court, holding this to be a surprise jother bidders, and an unjust advantage to the purchaser, re- 1 to enforce the purchase, and directed a re- sale at the risk t of the purchaser.^ \h}bk, that a purchaser at a sale under decree has a right to i out the report on sale, and get it confirmed, so as to obtain a ipletion of the purchase to himself, at least where he is the J purchaser .2 the remedy, however, which a party injured by an im- crsale has before the Master on the warrant to settle the '< on sale, the sale may be set aside by the Court. Order 388 rides that " A. sale must be objected to by motion to the Court 1 aside the same, and notice of the motion must be served upon ^purchaser, and on the other parties to the cause ; but the bid- lare culy to be opened on special gromida, whether the appli KV" "■ dodgers, 13 Grant, 148. t , ,„ |w*v. (iUm, I Cham. Rep. 354. 4 1150 PROCEEDINGS IN THE MASTER'S OFFICE. cation is made before or after tlie report stands confirmed." ** highest bidder" at an auction sale is the " purchaser," under ti General Orders of the Court, and the omission of the auctioneer I declare liim the purchaser will not deprive him of liis positio The omission in an advertisement of sale, to state that the premis are leased advantageously, will afford good ground for staying t| sale, but an application for such purpose should be made prompt! and before sale. Where the plaintiff, who had the conduct of tj " sale, assigned his interest, and an order to revive, making ti assignee a pai-ty, was, a few days before the sale, taken out, but i served, and an order taken to substitute for the plaintiff's solicitj the solicitor of the assignee, and thu case went on under the cont of such new solicitor, tlje Court set aside the sale, although relu^ antly, as great delay had been shown on the pai-t of the mortgag in making the application, and he was, under the circumstanc ordered to pay the costs incurred by the new sale.^ In ordinary sales by auction or by private agreement, the cont is complete when the agreement is signed; but a different rule pJ vails in sales before a Master; in such cases, the purchaser is ] considered as entitled to the benefit of his contract till the Mast report on the sale is absolutely confirmed.^ i * i ' ■'■ Where estates are sold under its decree or order, the Court cd siders itself to have greater power over the contract than it wo^ have were the contract made between party and party f and as 1 chief aim of the Court is to obtain as great a price for the estate] can possibly be got, it is in the habit, after the estate has beenf of *' opening the biddings" : that is, of allowing a person to offej larger price than the estate was originally sold for, and upon offer being made, and a proportionate deposit paid in, of directi a resale of the property.* The Court, however, has a discretioj which it exercises subject to the particular circumstances of I case;® and will refuse the application, if it is frivolous or atious.® 1 Jfe^Ipiii« V I'oun^, 2 Cham. Rep. 171. 2 1 Supden V. & P. 68. 3 See Savile v. SaviU, 1 P. Wms. 746-747 ; Barlow v. Osbonie, 6 H. L. Ca. 566 ; 4 Jur. N. 8. C. nom. Oaborde v. Foreman, 8 Do O. M. & O. 122 ; 2 Jur. N. S. 361 ; Harper v. Raytt, 71 N. S. 246 : 9 W. R. 504, L. C. 4 The expediency of this practice seeins very doubtful : see remarks of Lord Eldon, in T. « I Jac. 526 ; and 2 J. & W. 348 ; and of the learned lords in Barlow v. Onhorne, t«6i tup. 5 Rydt'r v. Earl Qmoer, Bro. P. C. 306, Baillie v. Chaiijmau, 6 Bro. P. C. 31il » ' PROCEEDINGS UNDER AN ORDER FOR 8AT-E. 1151 Any person may open the biddings ; and there seems to be no ibt that a person who is interested in the produce of the estate as a residuary legatee/ or a tenant for life, or reversioner, (T do 80 ,2 but the opinion of the Court appears to have fluctu- lupon the question, whether the Court will entertain an appli- bon to open the biddings on behalf of a "party who was present Jibe sale. Thus, in M'Culloch v. Cotbach,^ Sir John Leach, V. C, such an application ; but, in Thornhill v. Thornhill* Lord on said, 'that, although the circumstance that the person pro- ; to open the biddings had been present at the sale might be lobjection, yet many cases might be put, in which it would be ssible to act upon it as a general rule, and that each case must Uveraed by its own circumstances ; and, in Tijndale v. Warre,^ ssame learned Judge said, that although the Court looks with ousy atthe circumstance of the person applying having attended [sale, the way in which that jealousy had been exercised was by (ting a larger offer to be maut , under the idea of having a com- ation by the largeness of the offer for any loss that may have 1 from the want of competition at the sale. In that case, his dship permitted the biddings to be opened on an advance of offered upon 3,8001.; and the same principle was afterwards I upon, in Lefroy v. Lefroy,^ by LordXyndhurst : who refused ^open biddings, on behalf of a person who was present at the sale, ((can advance of SOOl. upon 12,010Z., but ordered it to be done IM. were offered and deposited. [The rule of the Court is that a purchaser at sale under a decree [not bound by any ii*regularity in the proceedings, so as to cause itolose the benefit of his purchase; where, therefore, the Master liettling tl^ conditions of sale, had given permission, contrary |lhe General Orders of the Court, to all parties to the cause, in- iig the plaintiff who had the conduct of the sale, to bid ; and [iiis report erroneously stated that the sale had been duly adver- lin two newspapers for four weeks next preceding the sale, im in reality it had been published in one of the papers for two I, I- A{\ v.),:-, iMwr V. Gooitxrin, O. Coop. 95 ; Chapman v. Fowler, 3 Hare, STT. Iiillianu V. Attenborouyh, T. & R. 70-7C. l'lhd.3U; see, also, Somner v. Charlton, cited 5 Ves. 655 , Preston v. Barker, 10 Ves. 140. |W. iff. 347. 5 Jac. 526. I>lw5.an«; see, also, Cochrane v. Cochrane , 2 R. & M. 684 ; Shallcrogx v. Hibbergon, 1 C. P. H t. Colt. 380 ; lie Jonet, 1 Giff. 284 ; 5 Jur. N. S. 1243 ; Ware v. Watsmi, 7 Do O. M. & U 'S.JJur. N. S. 1.'.0. ■ i If '* KT^ 4/ 1-5 P 1152 PROCEEDINGS IN THE MASTER'S OFFICE. weeks, and in the other for three weeks only ; but the practi under General Orders of 22nd Feburary, 1862, being that the having the conduct of the sale, and not the purchaser, takes and the report of the Master, and there being no allegation of the pi chasers having been aware of the irregular proceedings, or ground for imputing bad faith to them in the transaction, Court refused an application made on behalf of the debtor to aside these sales on account of such irregularities, and ordi the debtor to pay to all parties, including the purchasers, the of the application.^ Where an irregularity had occurred in advi tising a sale, but no injury had thereby accrued, and a fair had been obtained, the Court confirmed the sale.^ The Secrel in Chambers, will not entertain a motion to confirm a sale whi an irregularity has occurred, unless the sale has been approvedj by the Master.^ An auctioneer acting under an order for Master, or other officer conducting such proceedings, is not boi by an order staying the sale, of which he has not notice. Wbi an order staying a sale for three weeks was gi-anted on the the sale was to take place, and the Registrar telegraphed to Master conducting the sale that such order was granted, and message reached him after the sale, but before payment of purchase money ; an order made by a Judge in Chambers, refni an application to set aside the sale was sustained by the full Off on rehearing.* An order to open biddings will not be made great delay against an innocent purchaser, unless miscondni shown on the part of the purchaser.*^ Biddings will not be opei and a sale set aside on the ground that a party, (the defend was prevented from bidding by promises made to him by the chaser ; such fact, if established, would constitute the purchasi trustee for him, and would be subject for a suit.® One lot of land out of several, sold under order of Court, ^ purchased for ^79 5«. ; after the sale another person came intoj office of the plaintiff's solicitor, and offered i'lOO. An applicai by the plaintiff, made under the circumstances, to substitute! latter person for the purchaser, was refused with costs.^ 1 Dickey t Heron, I Cham. Rep. 140. 2 Cayley v. Colbert, 2 Cham. Rep. 466. 4 rite Freehold Permanent BuUding Society v. Choate, SCham. Rep. 440. 3 Thomas v. MeCrae, 2 Cham. Rep. M. | 6 Crooks V. Crooks, 2 Cham. Rep. 29. 6 Broek v. SavH, % Cham. Rep. 146 7 McRobcrU v. Durie, 1 Cliam. Rep. ill PROCEEDINGS UNDER AN ORDER FOR SALE. 1153 A solicitor having the conduct of a sale, cannot withdraw the iperty offered after a bid has been made ; his course would appear ^be to move to open the biddings, if he has grounds for such a (tion.^ An order to open biddings will not be made after great ay against an innocent puvchaser, unless misconduct is shown tthc part of the purchaser.2 the Court will, in a proper case, and upon conditions sub- ate a proposed purchaser at an increased price, for a party who purchased property at a sale, under a decreee of the Court, ead of opening the biddings generally, and directing a re-sale, Dgthe present purchaser the option to take at the increased lice.' Biddings will not be opened, and a sale set aside on the bands that a party, (the defendant), was prevented from bidding promises made to him by the purchaser ; such fact, if established, lid constitute the purchaser a trustee for him, and would be ikjectfor a suit.* [jlere advance of price, if the report on sale has not become ab- tate, is sufficient to open the biddings ; and they may be opened be than once.'' I • ' I IThe biddings may be opened where the sale has been made by lied tender;" but the rule under which the Court permits a ^nger to intervene, for the purpose of opening the biddings, has application to a sale by private contract. If, however, any of i parties adduce evidence showing that there has been some error [liscarriage* in the proceedings, or that the price is grossly in- qaate, the Court will refuse to confirm the contract.^ • Ml here a defendant, who had obtained an order to open biddings, I was outbid at the second sale, applied to open the biddings ii,onan advance of 1601. upon 1,335/., Lord Eldon, as it ap- that notice of the motion had been given to the purchaser, rine V. Yotmg, 2 Cham. Rep. 85. \ ■' ■' . - ,. tit v. Cronkg, 2 Cham. Rep. 29. brriion v. Patterson, 1 Cham. Rep. 303 ; sea fonn of OrJer to he made in such a case, In a note ho this case, page 364 of 1 Cham. Rep. Tidiv. Siiirf, 2 Cham. Rup. 145. <■ ¥■ v. & P. 116 ; Scott V. Ne»bitt, 3 Bro. C. C. 475. -mv. Osborne, 6 H. L. Ca 556 ; 4 Jur. N. S. 367 : S. C. mm. Onborne v. Foreman, 8 De G. .40.122; 2 Jur. N; S. 361 ; Waterhome v. WUkinmn, 1 H. & M. 036 ; Siigd. V. & P. U6. jrthe Order in Osborne v. Foreman, sen Scton, 1207. fWKiin V. Vanderplank, 11 Hare, 136 ; and siee Robertn v. Robimon, cited Seton, 1203. 49 - 1 1154 PROCEEDINGS IN THE MASTER'S OFFICE. who did not appear, made the order, on the terms of the applicai paying all the costs.^ An advance of 101. per cent, was formerly considered to be sut cient to induce the Court to open the biddings;* but, in Andreu V. Emerson,^ Lord Eldon said, that the rule of 101. per cent. wJ not a wise rule to establish, as the consequence was, that more wl never got ; and desired it to be observed that, in future, the should be no such rule. In White v. Wilson* his Lordship repeatl the same opinion as to the impolicy of such a rule : but said, \ in some cases he should be satisfied with an advance of lOi. cent. ; in others he should be satisfied with less ; and in others, should require more. And accordingly, in Brooks v. Snaith,^ being a creditors' suit, his Lordship permitted the biddings to | opened upon an advance of 51. per cent, on 10,000i. In Garsto V. Edwards,^ however, Sir John Leach, V. C, who appears to ha been favourable to an adherence to the rule of 101. per cent.' fused an offer of 3501. on 5,300Z. : observing, that where an advaij so large as 5001. was offered, the Court would act upon it, thou it was less than 101. per cent. So that, on the whole, it rnayl concluded that, although in the case of an advance of so lar^ sum as 500Z., the Court will permit the biddings to be opened,^ if it is under iOl. per cent., yet the Court, in ordinary cases, siders 101. per cent, (which is the usual amount of the dej paid upon sales by auction out of Court,) as a proper dei to be paid when biddings are opened.® Where the timber upon a lot sold has been taken at a valuation, advance must be calculated upon the amount of the timber, as as upon the price of the lot.^" 1 Pretttm v. Barker, 16 Ves. 140. ^ , 2 Aium.,3 Mad. 494. In the following owes, however, besides those noticed in the text, the I has opened biddinjfs upon a less advance : Tait v. Lord Northwick, 5 Ves. 056 f 2004. on 2.1 Atwn., 5 Veh. 148 (mil on 3,200«.) ; Lefroy v. Le/roy, V Buss. 606 (600t. on 12,0101.); Cuchi Cochrane, 2 R. & M 684 (6004. on l«,500i.) ; Lawreme v. Ualliday, 8 Sim. »90 {ml, on bfT Domville v. Berrington, 2 Y. & C. Ex. 723 (366J. on 7,300t.) ; Barlow v. Osboriie, 6 H LO 4 Jur. N. S. 367 ; S. 0. iimn. Osborne v. Foreman, 8 Ue U. M. & G. 122 ; 2 Jur. N. S. M;, ^ by sealed tender (1,500J. on 36,5001.) ; Re Joiut», 1 Oiff. 284 ; 5 Jur. N. S. 1243 (200/. on 2^ The Court has refu.sed to ofwn the bidtling:.* for lOOf. on 3,200i. in Aium., 5 Ves. 148 ; and foj '. on 3,600J. in Uolroyd v. Wyatt, 2 Coll. H31. 3 7 Ves. 420. 4 14 Vos. 151. I 5SV. «cB. 144. ,, 6 1 8. & S. 20. 4 7 See Anon., 3 Mad. 494. 8 Lefroy v. Le/roy, 2 Rns-s, 606. „ „ „, »^ 9 See Anon., 3 Miid. 494 ; Bmim v. Bmim, 13 Sim. 189 ; Uolroyd v. Wyatt, 2 Coll. Mi : tit UawHim, IS Jur. 721, V. 0. W. 10 BateH V. Bmumr, Sim. 380. ' n PROCEEDINGS UNDER AN ORDER FOH SALE. 1155 jred to be Buf lut, in Andrei I. per cent. \y\ i, that more w| in future, the ordship repeati s : but said, thj irance of lOi. md in others, oks V. Snaith,^ tie biddings to i )0t. In Garsfo 10 appears to lia lOI. per cent.^ ; where an advaij ct upon it, tboii 5 whole, it ance of so laif ,0 he opened,* :dinary cases, cj unt of the dej proper det Whatever the rate of the advance offered may be, the Court will Ivt permit biddings to be opened unless it amounts to at least 402. ^ 8, where, upon a sale before the Master, two lots were sold, >{or 656^, and the other for 911., and a person applied to open (biddings, at an advance of 70^ on the first lot, and 30^ on the her, Sir John Leach, V. C, refused to make the order as to the and lot : the advance being under iOl. ; but his Honour recom- nded the paHy moving to make another application, that the Ts for the two lots might he opened, and that a resale might I place in one lot, upon an advance of 100^ on the two lots ; this was afterwards done.^ In a similar case, however, Sir ncelot Shadwell, V. C, although he allowed the biddings to be lened upon an advance of 1602. upon 7102. for four lots, refused I direct them to be resold in one lot without some reason being Qed for it.' I In general, where biddings are sought to be opened of lots bought [different persons, a separate application, on a separate advance, jito each lot, must be made.* As the biddings are merely opened benefit of the suitor, the Court will not, usually, favour any lier person ; therefore, where an application was made to open lading of 5,0202. on an advance of 1502. only, on the ground that I party had mistaken the time of sale. Lord Thurlow held the itmstance, that the bidder was too late, to be no ground at all, he would not open the bidding for a less advance than n at avaluation, the timber, as fcinticed in the text, the I ?5yoAi2,oW.);Cfi ,Sm.V9c'(:»00i.o«M ;i„y. OobonMHLq ,r N.' 8.1243(2001. ««^ |lhere the biddings are opened, the purchaser is entirely dis- ged from his purchase ; and if he has paid a deposit, or any t of the purchase money, into Court, he will be entitled to have ud out to him. If he is the purchaser of more lots than one, I the biddings are ordered to be opened as to some of the lots mil were first purchased by him, he will be allowed to have the ^8 opened, and to be discharged from his pm'chase, as to all swhich he has purchased : it being considered but reasonable, 'if, having become the purchaser of a subsequent lot, in conse- Wya"' V. WeUdon, 4 Mad. 460 ; ^__ . « V. Bradley, 1 S. * S. 1 o (',o\l. 637 i l'«^K!r,i;- ut that it was extri-imdy dilli- ilt to manage the security, unloss the whole money was paid into iiart, to remain in Court as a pledge that the nextpm-chaHer should !rform his contract. Where, however, a colliery had not been jked for ten years, the biddings were opened on the customery dvance.' , ' , ■ . . '• On a sale of property held on lives, the biddings were opened on Dadvauce of 850^. on 5,500/.: the applicant consenting to be bound lease no better bidding could be enforced.'-^ & 8. 386; Boyer v. Blnm The application to open the biddings should bo made after the leporton sale has been filed ;3 but before it has become confirmed.* fterit has become binding, increase of price alone, however large, 1 not sufficient to induce the Court to grant the application : al- lough it is a strong auxiliary argument, when there are other ounds.^ But very particular circumstances may, perhaps, induce Be Court to open the biddings, after the report on sale has become lading, if the advance is considerable. Thus, in a case,® where lie owner of the estate (who joined in a motion for the purpose of «niDg biddings, after the report was absolutely confirmed, was in rison at the time of the confirmation, and it appeared that he culd have rpened the biddings before confirmation of the report, he been able, and that he had even directed persons to bid more what the estate sold for, who deceived him : an advance of 1,000/. (more than one-fourth ofthe original purchase money,) beinc lered, the biddings were opened, on a deposit of the 4,0001. being de. Strong as the circumstances in this case were. Lord Eldon, la subsequent case, expressed great disapprobation ofthe decision, determined, generally, that, after a purchaser had confirmed report, unless some particular principle arose out of his jtharacter, as connected with the ownership of the estate, or some [tnist or confidence, or his own conduct in obtaining his report, the 1 ^»/rei/« V. SmM, 1 C. p. Coop. t. Cott. 381. ' ' ' . • ' ' .i' ' iValondv.Walond,SBea.v.ib2. ,».. ; . , ■ . >, / ^ 3 Lmgrove v. Cooper, Hare. 279. iHridger v. Pen/old, 1 K. & J. 28 ; Ware v. Watsm, 7 De G. M. & O. 739 : 2 Jur. N. S. 129 ; Barlow V. Otbome, 6 H. L. Ca. 556 ; 4 Jur. N. S. 367 ; S. C. nom. Osborne v. Foreman, 8 De G. M ft O. , 122 ; 2 Jur. N. S. 361 : Stwd. V. & P. 116. 5 Ware v. Watfon, 7 Do O. M. & G. 739 Swjd. V. & P. 116-117 ; and see, contra, Chetham v. 9rugeon, 6 Ves. 86 ; see also Prideaxue v. Prideaux, 1 Bro. C. C. 287. ' ^(rtwn V. Birch, 2 Ves. J. 51 ; 4 Bro. C. C. 172. . , i p ,5 IITiH PRof'KKHINOS IN THE MASTER H OFFIOK. bidding ought not to be opened.* Lord Rodesdalc, also, in a can before him, held that biddings could not be opened after the ripoJ was absolutely confirmed, unless on the ground of fraud on the paj of the purchaser ; and said he considered it to the advantai^c suitors to observe greater strictness in opening biddings, as it woui procure better sales.^ And in a still later case, Lord Eldon ad hered to the same rule, and said that he could not do a thin^; nioi mischievous to the suitors, than to relax further the binding natui of coniracts under the Court : observing, that half the ehtates thi were sold in the C'ourt were thrown away, upon the speculatio that there would be an opportunity of purchasing them afterward by opening the biddings.'* Fraud will, of course, be a uufUcient ground for opening the bi| dings.* Therefore, if a survey is made of an estate with some dj gree of collusion witii the tenants, and it misrepresents the vaiij and quality of the estate, and some of the purchasers are aware i this fraud in making the survey, and the owner is ignorant of iti or if the purchaser of the estate is partner with the solicitor intU cause, and is in possession of some particular knowledge, to tl benefit of which the other parties are entitled :® in such caseB, t| Court will open the biddings, although the report has becon binding ; but the biddings will not be opened on the mere groui that the purchase was made by one of two intending purchasef who had agreed that one should buy, and share his bargain \\i| the other.^ t The application for an order *o open the biddings may be ma by motion, stating the advance offered.* The notice of motio must be served on the per.soii 'Certified to be the purchaser, and i the parties to the cause.® Where, however, the purchaser di before report became binding, and his executors were serv 1 Morice \. Bi«hop of Durham, 11 \eB. &T, • .• • 2 Fergus v. Gore, 1 Sch. Jc Lef. 360. 3 White V. Wihon, 14 Ves. 151-153. _, 4 See Morice v. Bishop of Durham, 11 Ves. 57 ; Fergus v. Gore, 1 Sch. Jk Lof. 350 ; White v. Wik 14 Yes. 151-153. 5 Ryder v. Gower, 6 Bro. P. C. Ed. Toinl. 306 ; S. C. Gouier r. Gou>er,2 Eden, 348 ; Walton ». i 2 VeN. J . .53 ; 4 Bro. C. C 172 . , 6 Pri4se v. Moxon, July 14, 1754, before Ld. Hardwicke, cited Watton v. Birch, 2 Ves. J. 54; /(« V. Ooteer, 6 Bro. P. C. 306. _ I 7 Re Carew, 26 Beav. 187 ; 4 Jur. N. 8. 1290 ; Sugd. V. fc P. 117, n. (I.) ; and see Oalton v. Emvi Coll. 243. 8 Seton, 1204. 9 fictoii; 1204 : and soe Sherwood v. Beveridge, 3 De O. & S. 486, 482. V.V.. i'UOCKEDlNOH UNItKIt AN OKDKIl I'Olt SAI.K, I I 5^ c, also, in a caii 1 after the repo^ fraud on the paj the ac (lingH, iiH it wou| Lord Eldon ad t do a thin({ nioi lie binding natui If the CHtateB thi I the speculatif] them afterward L' opening the bii ate with some dl •resents the valij isers are aware LS ignorant of it I the solicitor in til knowledge, tot] in such cases, t| jport has becoi 1 the mere grod 3nding purchase! 3 his bargain \si ings may be ma notice of motio pUiTchaser, and i he purchaser dil ators were serv h Lot. S60 : White v. Wil Eden, 348; Wattoiii. B/rcfc, 2 Ves. J. 54; ii!J and Bee Oalton v. Einui fitli nuticr uf the motion, it was iicid that SLTvicu on iiiH lirir was Lot necessary.* If the Court approves of the sum ottVn d, the ap- Uciition will be granted, and a resale directed. The order usually made directs tlu! applicant to pay the pur- Itbaser's costs of the application, absolutely ; and that, upon tiu; ipplicant paying to the purclnuii his costs, charges, nnd cxponHCS occasioned by his bidding for and being allowed tlie purchaser, - indalso paying into Court, by a short time, the full amount of his Ldvance,^ the property be resold ; and that if there is no bidding at the resale higher than the price offered by the applicant, on open- liDgthe biddings or at the resale, he is to be allowed tho purchaser ilthat price ; but that if he is outbid, the highest bidder is to pay iito Court a deposit on his bidding within eight days after the ecrtiti- eatc of sale : indefault whereof the applicantis to bo allowed the i)ur- eliaser, unless there is an intermediate bidder : in which case, the property is to be again put up to sale ; and the defaulting purchaser ifltomake good any deficiency, andjmy the costs occasioned by his Idefault.* If the discharged purchaser has paid a deposit, provision may be Imade, by the order, for recouping him the amount out of tlie ap- plicant's advance ;'' and it seems the purchaser is entitled to in- jlerest on his deposit." If, however, the deposit has been invested lit his instance, he must take the stock in satisfaction of the amount lid out, whether the funds have fallen or risen since tho invest- Iment.^ If the estate has been sold in several lots, and it is intended to it resold in one lot, the applicant may be required to pay the original purchasers any charges and expenses they may have been put to, in having surveys made, before the biddings \^ere opened. * Where, however, an application was made to Lord Eosslyn, upon a motion to open biddings, for a direction to the Master to include, 1 Tmpler v. Stoeet, 8 Beav 4«4. i The disuhargeil purchaser is not entitled to the cost6 of peruoing the abstract of title, where it hxs been sent to him prematureli- ; iiaj/mond v. Lakeman, M. R., 16 April, 1865 ; but see Watts y Martin, 4 Bro. C. C. Ed. Belt, 113, > lord Thtirlow'* cane, cited A nan., OVea 613. - .„-« ■ , . < For fonn of order, see Sefo/n, 1202. i &(on, 1207 : itoj/t/iond V. Laiircman, V. C. K., for M. R. in Chambers, Sept. 1864. J Banki V. Banks, 18 Beav. 380. '%*. V. &P. 119. . .. , , . : > ,-^ > mUv. Martin, 4 Bro. C. C. Ed. Bolt, 113. 1160 PRO('EKDIN(JS IN THE MASTERS OFFTCK. in the costs of the purchaser, the expense ot* a ;ourncy to bcc tl: estate, his Lordship refused to give any particular directions : m ing, the Master would, under the general directions, make the aj lowance, according to the practice.^ The costs of the particB i the cause, of an application to open hiddings are made costs in tl] cause. Where the amount of the advance was 7000i. on 27,000i., Court considered a deposit in Court of 3,400il. was sufHcient.^ If the applicant fail to comply with the terms of the order, it wil| on the application of the first purchaser, or any of the parties the cause, be discharged with costs f and the Court will not grail the applicant further time to pay in his deposit, or make a secon order to open the bidding at his instance.* Where he fails to draj up the order, or to act upon it, the order cannot be treated as [ nullity, without notice to him : any other person may, howevej apply to open the biddings by motion or summons : of which notid must be given to the former applicant, as well as to the other paj ties.^ The proceedings upon the resale are usually the same as upq the original sale. If d'^emed expedient, the property may be allott^ in a different manner.^ . ,i .» i. . . - If the person at whose instance the biddings were opened outbid at the resale, he is, upon the certificate of the resale bj coming binding, and upon the highest purchaser paying his depnsj into Court, discharged from his offer ; and may, upon motion, ol tain an order for the repayment of his deposit.'^ If the purchasj at the resale fails to pay in his deposit, the person at whose stance the biddings were opened will be declared the purchaser i the amount at which he opened the biddings ; or at his higlie| bidding beyond that amount at the resale, if there was no into mediate bidder.^ 1 Aium., 2 Ves. J. 286. 2 Manneri v. Furze, 17 L. i. Ch. 485, V. C. E. ; and see Bankg v. Batiks, 16 Beav. 380. 3 Banki v. Banks, 16 Boav. 380, n. 4 Seton, 1206 ; Colebrooke v. Clarke, 9 L. J. Ch. 130, V. C. E. 6 Oibbons v. Hoioell, 4 Mad. 62. 6 Watts V. Martin, 4 Bro. C. C 113 ; Humphries v. Roberts, 6 Jur. 680, V. C. K. B. ; Ward v, Cm 9 Sim. 87 ; Seton, 1206. 7 Seton, 1206; WUliavm v. AtUnbor<»i.gh, T. & R. 77. • 8 S«o terniH of order, ante , 1159. PROCEEniNGS UNDER AN OUnER FOR SALE. 1161 Where the applicant is discharged, he is not in {general entitled J an allowance for his costs, as they are in the nature of a premium Lid by him for the ojiportunity of bidding.^ Where, however, the Mings have been opened ior the express benefit of the family, or |the persons interested in the estate, the applicant has been allowed J8 costs, and interest on his deposit.^ • , If ihe applicant is outbid, he may apply to reopen again, on liotice to the second purchaser, and the parties to the cause, and on Ipayment of all the costs.=^ ■ 'K:\ Tf-f i .* n '"t f The deposit paid on opening biddings is considered as part of the Ipnrchase money paid : although, in the event of the depositor not llieing allowed the purchaser, it must be returned to him ; and lllierefore, where the deposit was laid out, on the application of the Ifendor, in the public funds, which rose between the time of the de- it and the purchase being completed, the estate was held entitled llo the benefit of the rise,* and the depositor was held not to llie entitled to the dividends on the investment, but was allowed 4Z. [per cent, interest on his deposit.^ ;m ■;'■' i:v Proton V. barker, 16 Ve«. 140. imirm v. Atnbrose, t Cox. 194. ,, Dovtey t. Cmntets Pouris. 1 ^ox, 206 ; 2 Bro. C. C. 32. ,':' . • ■ofeneorf* V. Opie, 1 Dick. 889. I p 1162 PROCEEDINGS IN THE MASTERS Ob KILE. the Judge may receive proposals for sale by private contract hM or after, the property has been put up for sale by public auctioJ Where it is proposed to sell the estate by private contract, til purchaser usually enters into a contract with the party conductiij the sale, or some other party to the proceedings, or his agent, buy the estate at the price and on the terms therein specified, sull ject to the same being approved by the Court or Judge in the suii within a limited time ; and where particulars and conditions ofl sale of the property by public auction have been printed, a slioj contract, referring thereto for details, is usually indorsed on a coJ of the particulars.^ ........ ... . ., -.i,,.. The contract having been entered into, a petition is presentej or motion made, usually by the solicitor conducting the sale, thj this conditional contract may be carried into effect. The petiticj or notice of motion must be served on all the parties to the can that are interested in the sale, and must be supported by evidenJ showing, either that a sale has been directed, or that the Court hi power to sell, and by an affidavit that the terms of the propos^ contract are proper to be accepted, and likely to be more adviu tageous to the parties than if the property were offered to publj competition. The person contracting to purchase sometimes i tends at the hearing of the motion, and admits his signature tot| contract. Where he does not, it seems usual and proper torequ such signature to be proved by affidavit. If the Comi or Judge! satisfied that the contract ought to be adopted, it will be ordered| be carried into effect ; ^ and where the Court is not satisfied, sometimes directs an inquiry to be made at Chambers. Where t] Court or Judge considers that any of the terms of the contract shon be varied, and the purchaser appears and consents, the order mj direct that the contract be varied accordingly, in the mann specified in the order, and as so varied be carried into effect ; a| i f - ■y '-=.. 4 * •Jt ■i .1 1 The object of this ii, of course, to uve the exiionse of repeating^ in the contract such nul applicable thereto an are contained in the particulars ; but this in sometimes lost sight ofj parties agreeing to sell "on the terms of the within conditions of sale, or such of themul applicable to a sale by private contract." Many essential terms are thus left in uncerUinty. r to contract! by agents, see Add. Cont. 686-634 ; Sugd. V. fi P. 820 ; and for the sale of Und.l Cont. 66-lir : Subd. V. ft P. 181-900 ; 1 Prideaxtx Oanv. 43-62 ; and for forms of uontmtsoif ■ee 1 Prideaux, Si, et ueq. ; t David$on Conv 3-14. 2 DowU V. iMeu, 4 Hare, 811 ; Pimm r. IruaU, 10 Hare, App. 74 ; and see BmuJUld v. B i i | • The abstract should be fairly wii^ten on the usual paper.^ A head or title is always given to the abstract, in which thj situation of the property to which it relates, the name of the owneij and his estate or interest therein, should be shortly mention© The particular parcels to which the title relates are also sometime mentioned. A copy of the agreement or condition of sale shoul^ accompany the abstract. h.' ^•J'U Jl U'stj' iJ AiX >^M' If the lands are of peculiar tenure, it should also be mentioned i^ the head of the abstract. It is also usual to mention any qualific tion with which the premises are sold. The wills, deeds, acts of parliament, &c., should then be abstract in the order of their dates ; all the material parts being given i 1 t Sug. Vand. & P. 67, ed. 10, citing Temple v. Brown, 6 Taunt. 00, but this fact doea not i from the case. 2 1 PreU. Aba. S4 ; 2 Stm. VeP'l. & P. 57. 3 Sitg. Vend, ft P. 6& Sr . .^ward SiiKden says, that he frequently, when in proctlce, refuNd \ peruM papent illeidbly written. PROCEEDINGS ON ABSTRACTS OF TITLE, 1167 , and the unimportant parts being simply referred to. Some- Ues, however, it will be proper to arrange the abstract differently. Ifhus, if it relate to different parcels of land, or different terms of real's, which have been purchased or assigned at different times ; or ihere the property has become vested in several peraons as tenants in common, co-parceners or joint tenants; who have severed the tenancy, and there is a different deduction of title to the different liliares, in such cases it will be proper to arrange all the deeds, &c,, [relating to any one portion together, and to head that part of the ibstract with, *' As to thefai'm called A." &c., or " As to the third M (w share of B." &c., and thus throughout the abstract. So fhere there is a first and second mortgage of the same lands, which have been transferred from time to time to different persons, jit will be proper to depart from the strict chronological order of the Ms. -•. ■ ' • , - ' . So, also, it frequently happens that different parts of the lands to llo be sold or mortgaged are held under different titles. In such Idses there should either be separate abstracts of each part of the Ipropcrty, or all the deeds which relate to one part should be Ifirst abstracted, and then the deeds which relate to the other part [sliould be given. By this means much confusion is prevented. Where an abstract is prepared with a view to show the title to jjifferent properties which have been purchased by different persons, (Statement of the particular lands which have been purchased by \ person on whose behalf counsel is instructed to advise, should ompany the abstract, and the instruments which relate to them buld receive some mark of distinction.^ Besides abstracting all the documents of the title, all such facts will elucidate the title, as deaths, marriages, births, descents, it, should be stated in the abstract according to the time of their Kurrence, and these facts must be verified by the proper legal fidence.* Entries by disseisin, abatement, intrusion, &c., where they have «ted, should also be stated.' ,■;•// k, ho .^,iUt\■■■, ISeel/Vent. Ab8. !W. '"^ •', -i". n i'Mrt. Abs. 43. J 1 /•reit. Ab». 48. '.» '' '.'o,;> .";• ..,.ft: - " rr W P ■ii 11C8 PROOKEDINaS IN THE MASTERS OFFI^'E. If tlio promises are of a different nature, as partly freehold and partly leasehold, there should be separate abstracts of each kiij of property. r'#ir - . i ,i. ' . n u jiii t • i.t The abstract should counnonco at the period fixed by the est blisliod rule on the poibt. What this rule is wo shall liercaftj consider. The instances where it will be necessary to funiisli title of a remoter date, will also be more properly considurod in s\d)sequent part of this work ; but except in these cases, it will no| be advisable to go further back in the title. . ' . ' A vendor may, upon a suit for a specific performance, l>e com pelled on oath to bring into the Master's office all documents in p08ses.sion, or power relating to the title, and would not be ontitliii to withhold them from the purchaser if he required them; ye clearly he is not bound to furnish an abstract commencing befon the proper period, whether the purchase is completed in or out i of Court.i i,-; J * " if.,J It will be useful to mention, at the foot of the abstract, whetliel the vendor or mortgagor is married, and if so, whether the wife i dowable out of the lands to l)e sold or mortgaged. Hero may also be noticed any peculiarity in the situation of ai^ of the parties to the transaction. The legal and equitable titles should be deduced to the vendor ( mortgagor, or his trustees, or it should be shown that he has tb means of obtaining conveyances of them from the parties in who! they are respectively vested. The history of all terms of yeaj should also be brought down to the time of delivering the abstr and it should be shown whether they have been merged or whom they are vested. The discharge and satisfaction of incumbrances and charges must be clearly shown in the abstr and must be verified by the proper evidence. It should also be shown which of the title-deeds are in the session of the vendor, or of which he possesses copies, and in wh way he can enforce the production of the originals. 1 2 Siig. Vend. & P. r.7. AS TO AIWTRACTTNa DEEDS. 1160 ^rmance. be coiiJ le situation ofaiJ Having marH(. Abs. 66. SO %. rr % r I!? I V i 4 I if* jj 1 :# 1170 PROOEEDINOS IN THE MABTER's OFFICE. purchases, marriages.. &c., which are afterwards followed purchase deeds, settlements, &c., should be fully abstracted, if agreements themselves are not abstracted.^ Where recitals merely refer to i)rior deeds which have ' abstracted, it should be simply mentioned that these deeds recited ; and, for more ready reference, the page of the abte should be mentioned where the deeds are abstracted, as, "recitii the before abstracted indentures of lease and release, dated, (Ante, p.. .)•" t '< • The earlier part of a title sometimes depends on the recit in other deeds ; and when this is the case it will be better take them out of the deeds in which they are insei-ted, aij arrange them in their order at the commencement of the abstr thus : "Jan. 1, 1870. It appears by a recital in an Indenture Release of the. . . .day of aftertvards abstracted, that," &c,' The recital of the contract for purchase, mortgage, &c., on whij the abstracted deed is founded, should be shortly stated, tw some cases it may be important. Recitals also of payinen having been made, or of the amount of interest due, always be abstracted. Testatum. — This part of a deed frequently commences wij mentioning the purpose for which the deed is executed, "for docking and barring all estates tail." This should shortly abstracted. ■ ' Consideration. — If there be a simple payment of the consideij tion stated in the deed, or if the consideration bo immaterial, consideration clause should only be shortly stated ; but wher trust or power requires that the money should be paid in a specl manner, then that part of the deed which expresses the applicatil must be fully given, in order to show that all the requisites] the trust, or circumstances of the power, have been observed, i in such cases, the language of the deed should be closely pursued." 1 1 Pnst. Abs. 66. 2 1 Prett. Ab8. 86. 3 1 Prest. AIM. 70. i:rvu II . Ij;' W''~ AS T<1 ABaTRAOTINO DEEDS. U71 So, also, where the money is payahk! out of a particular fun«l, tnwt monies, the payment of tlie consideration aliould l>e fully ited. ■ ■'■ ' '■■ - • • - ■''■■■ ■ '-' '-'' ,■ Where the operation of the dcied depends on the existence of the o[)cr consideration, as a bargain and sale, or covenant to stand (isetl, it must l)o particularly mentioned ; and where there is a biil)t whether an instrument can operate in a particular manntM-, I the considerations should he stated, in order that it may Ik3 seen ihether it may not operate in soMie other manner. Morainal considerations should always Ix; shortly stated. The clause of the receipt of the consideration should be shortly stracted, unless it contain some special matter, or mentions any ticular fund out of which the money was to be paid ; so where it ! necessary to show the due application of the money, the clause ihoiild be fully stated. In ancient deeds, the consideration is necessarily presumed to »ve been duly paid ; but in modern deeds, that is to say, deeds lecuted within the last twenty years, courts of equity require the chaser to look to the receipt usually endoraed on the deed, as |(vidence of the payment of the consideration and not to the receipt wntained in the body of the deed ; and the want of the receipt by [toilorsement, or in a separate instrument, is, it is .said, implied lotice that the i)urchase mondy has not been paid, and mises a bestion of equitable lien in favor of the seller for his purchase- noney, or so nmch thereof as does not appear to have been paid.^ But in one case,^ the receipt indorsed on the deed was treated 1 a court of common law as immaterial, where the statement in t'rj |liody of the deed was ambiguous. Mr. Justice Holroyd observed,that «t being under seal, it could not amount to an estoppel, but uld only be evidence for the jury, capable of being rebutted by other circumstances of the case. And this opinion has been adopted in a subsequent case.^ lliVert.AbB. 72. I iampon V. Cwke, 6 B. & A. Oil ; 1 Dow. & Ry. 211. ) mtill V. Suirmers, 2 Y. & Jer. 407; but see McMamu v. Little, 3 Cham. Rep. 263 w^ 1172 PBor-REDINOS TN THE MASTER'S OFFICE. 4i P 1^ But when a deed contains a statement of the payment of thi consideration money, it will estop the i)artv at law frou) inovinj that the consideration money was never pai AS TO AB.STIIA«JTIN({ DKKDS. 1173 linot FiouikI to accopt a title «le|)oii(lin{^ upon a t'oniuT owner's iipoarinjif to have had no notice f)f what wotild otherwise invalidaU' Itho title* The granting wonls shouUl always he tuUy alMtracted. Tk words of limitation annexed to the grant, as to the granti'c, ||ii;i hdi's and a8sl(jtM, or Ills eMiciUortt or aditilivisiraloi's, .should also Ik' fully given. In short, as this clau.sc is one of (.he most important in the deed, jilshouUl in general be given verbati)v,. In a lease and release, the reference to the lease for a year should |k<{iven shortly ; and if the leaHC is lost, at length, as it may then \k evidence of the lease.' Where there are several and distinct clauses of grant, they should llej^'ivon in separate lines, as they will thus more readily attract the jiiotice of the counsel advising on the abstract. Parcels. — Where the parcels are short, they are sometimes given it length at the head of the abstract, and merely referi-ed to in the siijsequent instruments ; but the more general plan is to give the parcels at length in abstracting the lirst deed, as they are there iescribed; and in the subsequent deeds to notice any variation fliich has taken place in the names or other material parts of the description, or, when there is no variation, to give a simple refer- ence to them.^ Where the parcels are long, and relate to extensive property, it is ual and advantageous to arrange the closes and farms, occupiers uid tenants, parishes, &c., in alphabetical order. Where there is any change in the description of the parcels, it jihould be mentioned ; and when there is an ancient and modern tion, both of them should be abstracted. , ,. . : .>■ When the parcels are described by reference to some other deed, m description should be given verbatim. • I 1 Fron«w V. St. Oermain, 6 Grant, 638. I '.8eelP«x*. Abs. 80. 'IPrest. Abs. 81-83. i- wr^mi if, v 1' ^f ^ 1174 PROCEEDINGS IN THE MASTERS OFFICE. The sweeping clause should always be fully abstracted, as it mi^ serve to help out an insufficient description of the parcels. The firet words of the geiuval words should also be given fortli same reason ; and where the description of the parcels is in generl terms, they should be fully given, as they may help out the genen description. Whenever it is doubtful whether particular lands passed by I deed, from its terms being general, or from the description havii^ become obsolete, the relevancy of the former deed ought to be .shev by means of contemporaneous documents, as leases, assessments the land-tax, poor-rates, &c., maps, steward's accounts, and the likl as by such means the identity of the parcels may often be proved! An affidavit of their identity should also in such cases be insist upon. Exception. — If there is any exception made in the grant, should be abstracted. ^' ^ The clauses of, And the reversion, &;c., All the estate, &c., Andol deeds, &c., should be shortly noticed, unless they contain any specif matter, for if so, they should be given fully. Habendum. — The habendum, or habendums, should be fuUl abstracted, with the name of the grantee or grantees, and the woia of limitation of the estate ; and the presumed effect of the de should never be attempted to be given. Reddendum. — This clause should be stated briefly, except whd the rent is reserved in some j)articular maimer, and a question ma be raised on the validity of the reservation, or when the rent is tli subject of the title to be considered, and the deed is abstracted fd the purpose of showing the creation of the rent. But in general, it is sufficient to show the quantum of rent the times of payment, and that it is clear of laud-tax and all oth^ deductions.^ . <.. ^ jJ'-tW 1 1 Prest. Abs. 90. 2 1 PresU Abs. 101. n n AS TO ABSTRACTING DEEDS. 'I 1175 The declaration of Uses, and the 2^^ff*on in whose favour it is mk — This part of the deed must be carefully abstracted, and the ct words should be given ; and this is the more necessary when ere is any special circumstance connected with the declaration. In abstracting words of limitation, marking the duration of the slate, it is very common in practice to give their effect, instead of ating the terms of the deed, as " to A. for life, remaiifuier to 3. in ^Ail" &c. And where the effect of the deed is clear and indisputa- He, this is not objectionable ; but wherever this may admit of a bubt, the precise words should be given.* ; , . Where the title depends upon the exercise of a power contained ha deed or will, it will not in general be necessary or proper to tract the uses which were limited in default of appointment ; lint where the validity of the appointment has been questioned, or lihere ther'' '"..',s been a confirmation by the persons who would lliive been entitled, if the power had not been exercised, then the lulterior uses, as far as they are relevant to the title, should be libstracted.^ ■'•,,- • ' ■ ;' ■ ^ ..,..,....,,,., ,^ In abstracting the usual limitation to trustees, to preserve contin Ipt remainders, it should always be shewn in the abstract that the lluids are merely limited to them and their heirs during the life of lllie prior tenant for life ; as, if their estate is not qualified in this Inanner, a doubf arises whether the trustees do not take the legal jetate, and whether all the subsequent limitations are not merely leqaitable. It has been said that this must depend upon the inten- n, both in deeds and wills.* And it would seem that the estate jiiiich the trustees would take under such circumstances, would be Iperned by the intention of the testator, where the limitations are jeontained in a will. This proposition se«)ms sufficiently borne out jly the case cited by Mr. Sanders,* although it is opposed by Lord I Thurlow's opinion in Boteler y. Allington.^ But- where limitations I of this nature occur in a deed, it is submitted that the question of 1 intention cannot be raised, but that the trustees must in all cases I tike an absolute fee in the legal estate. Thus, in Venables v. Mor- llftwt Alw. 116. !8iel />r««t. Aba. 119. 'ISuwI. Ug. *Tr. SflO. I J)m d. Compere V. fftofcr, 7 T. R. 4S8. MRC.C. 72. * ~> ••» ■ .; " .1" 1176 PROCEEDINGS IN THE MASTER'S OFFICE. p 1 ^ 1 '^ 1 s 1 ? 1 ris} lands were settled by deed and fine to the use of J, M. for lifj with remainder to trustees and their heirs during the life of J. to preserve the contingent remainders, with remainder to H. M. foj life, with remainder to trustees and their heirs to preserve conti] gent remainders, with remainder to the first and other sons of J. and H. M. successively in tail, with remainder to the appointees bj deed or will of H. M., and in default of appointment, to her rigll heirs ; and it was held, that subject to H. M.'s life estate the trustee took the absolute legal fee simple. So also in a later case,^ land were limited in a settlement to the use of A. for life, and after hi decease, to the use of B. and his heirs, during the life of A., to sup port contingent remainders ; remainder to the use of C. for life! remainder to B. and his heirs, during the life of C, to sup port coJ tingent remainders ; remainder to the first and other sons of C. i| tail male ; remainder to the use of D. for life ; and if she shouli marry, and her husband should survive her, to her husband for h| life ; and after the determination of these estates, to the said B. ar his heirs, to support contingent remainders ; remainder to the fir and other sons of D. in tail ; remainder to the use of E. for lifcJ remaindei to B. for life, and his lieirs, to support contingent remain ders ; remainder over ; and it was held that E. and the subsequeifl remainder-men took mere equitable estates, and that the legal f^ remained in B. ■'i:> liriT 'If Of course, where there are words in the deeS which modil the limitations therein contained, they should be fully abstracted Where thene is a long series of limitations, many of which h,\ expired, if the deed containing them is an ancient deed, that is say, more than forty years old, it seems unnecessary to abstra those limitations which can no longer take effect. They may, then fore, be simply referred to ; but in all modem deeds, all the limit tions, however numerous, should be fully given, in order that it mi be seen that they have in fact determined. Declaration of Trusts. — This part of the deed must in generj be fully given ; and when the trust is material to the title, it shou always be shown that that which was directed to be done has bed 1 7 T. R. 312, 438. i Colmore v. TyncMl, 8 Y. & Jer. 606. AS TO ABSTRACTING DEEDS. ><'»»rn 1177 ^ly performed, or has failed of effect ; and if' it be incumbent on i purchase*- to see that the money arising under the trusts has jen duly applied, then the trusts which direct the application Jiould be stated.^ a -}•*«•■ u^r -^ili-XftiK^jis :>}.o,/rv. •"(J' '?;'•■<'?;?' In abstracting the trusts, there should .be shewn the act to be bne, as to sell, kc, to exchange, &c. ; by whom it is to be done ; [the term, if any, be pointed out, at or before which the trust is or J not to be performed ; under what circumstances, when any cir- Iflunstances are imposed as material; with whose consent or at Khose request, if any such consent or request be made requisite ; 1 mode by which any act is to be done, if any mode be pointed Iwt, as by deed, auction, &c., the manner in which any act is to be i; as by deed, will, &c., if any mode be prescribed ; the person lor persons in whose favor the act is to be done; and when the iBture of the trust requires it, the purchaser should see that all [these requisites have been observed, and the documents which ove the observance of these requisites should be abstracted.' Conditions and Provisoes, as conditions for defeating the estate ranted ; provisoes for redemption and reconveyance, and for the hm of terms, should always be abstracted. In abstracting a iproviso for redemption, it should be shown by whom the money is )be paid, and to whom; the time of payment, and the rate of bterest, should also be mentioned. ,: ;< n^ ■•!.:. -' ., w: ^X-s^ In abstracting provisoes for cesser, the part of the proviso setting loat on what circumstances the term was to cease, should be fully nven i ,' . . . ?mer8. — Powers which have been exercised, or which are to be ixercised, in order to complete the title, should be abstracted Mm. They should show the person or persons by whom the wer is to be exercised, the mode of exercising the power, as by d, will &;c., and the circumstances which are to attend the ecution, as the attestation, &c. ; the time at which the power is be exercised, if any time be prescribed ; the consent or request are essential to a valid execution of the power, and the mode Ufttrt. Aba. 184. A UPrMt. Abs. 184. ' p 1 1 ■'i 1 1 : 1 1 •li «■ i I ■ 1 1 : i. 1 fe^„ 1178 PROCE£DINO» IN THE MASTERS OFFICE. in which such consent or request is to be expressed ; the act authj ized by the power, as to sell, exchange, &c., together with the cl cumstances connected with the mode of executing the power; person or persons in whose fav r the power is to be exercised, children, or a particular child, and the estate which may appointed to them; and whether the power is to be executi revocably or irrevocably.^ ^ Powers which are barred, released, extinguished, or becoij incapable of taking effect, or which are immaterial to the title, i merely be noticed in the abstract.^ '■ ^imw tii* i. i i'.;..i When there is an indemnity to purchasers paying the monej and the power has been exercised, the clause which enables trustees to give receipts for the purchase-money should be abstract) and the clauses which contain directions for the application oft money, should be omitted. If the deed contain a power to appoint new trustees, and the til is, or is to be, derived through or under the new trustees, and t| acts done by these trustees, the power should be fully abstract but where this is not the case, it is sufficient that it be shortly refej red to.* Covenrnita. — The covenants usually inserted in deeds need not] fully abstracted, they should merely be noticed. Thus the covenants for title, or ordinary covenants to produce deeds, ne only be mentioned ; but if the covenants are qualified, it should mentioned. . ^ It will be proper, however, in examining the deeds, to particular attention to the exceptions, if any, in the coven against incumbr^ces, and for quiet enjoyment ; if there are such exceptions, they should be abstracted in the words ofi covenant. Outstanding terms also, which are sometimes treated j incumbrances, and here noticed, should also be mentioned in ' abstract. If there is no other information concerning a term, I abstract shoidd adopt the words of the exception ; but if the tei| 1 1 PrMf. AbB. 161. t 1 Prett. Ab«. 151. 3 1 PreH. Abs. 152. i AS TO ABSTRACTING DEEDS. 4\-i 1179 I all circumstances belonging to it, have been previously noticed, I reference to it may be short, except when the evidence of the lie to the term appears different in the exception, from the state (the evidence in the former part of the abstract ; in which case, .reference to the term should be fully abstracted.* * < So, when a covenant for the production of title deeds discloses ly evidence of the title, not contained in a former part of the tract, it becomes material, and should be noticed ; and where there la schedule of deeds, it should be stated, as a purchaser will have lotice of any encumbrances effected by them. In absti-acting leases, all the burdensome covenants should be Uy given ; and wherever any special or unusual covenant occui-s I a deed, it should be fully abstracted. , , - Mmtion. — It should always be mentioned in the abstract, by cm the deed has been executed ; and if a particular mode of (lecution was necessary, as being an execution of a power or other- e, it should be shown particularly how the deed was executed, I order that it may be seen whether it was properly executed. id wherever the precise date of the execution is important, it ould be carefully mentioned in the abstract. * The execution and attestation of a deed jjoU is usually mentioned I the beginning of the abstract of it, as " By deed poll under the nd and seal of A. B. attested by two witnesses," and not at the , as in an indenture. A point of some practical importance may here be noticed. It is that signing was not essential to the validity of a deed at ion law, sealing and delivering being alone sufficient.* But ! the Statute of Frauds,^ it has been a matter of some discussion kether the signing is necessary to a deed. . ^, , On the one hand, Mr. Justice Blackstone considered that, since the nte of Frauds, signature is as necessary to the perfection of all nts of lands and other deeds taking effect under its provisions, as IllPfMt. Ab«.163. IjtaSfep. Touch. 60; P«rfc 63, ed. 1841 ^. IP i 5 7 (M m t m ^ /i5 i .« * 1 ^ ■^ i 1 ? -^i,' 1180 PROCEEDINGS IN THE MASTER'S OFFICE. sealing,* On the other hand, Mr. Preston says, " that the Statute i Frauds is applicable only to mere agreements, not attended with tli solemnities of a deed."^ So Sir E. Sugden says, without any quail fication, " signing is not essential to the validity of a deed, aJthoug sealing is."^ And it is to be remarked, that in the quotation by til same writer, of the first section of the Statute of Frauds, in tb Treatise of the Law of Vendors,* the important words, "ajij olgned" by the parties ci eating the same, are omitted, althoug they are afterwards alluded to in a subsequent page. With the conflicting opinions, it will be proper shortly to consider the ena ments of the Statute of Frauds on the point. The first section enacts, " that all leases, estates, interests freehold, or terms of years, or any uncertain interest of, in, to, or oi of any messuages, manors, lands, tenements, or hereditaments ere ted by livery of seisin only, or by parol, and not put in writing an signed by the parties creating the same, or their agents, thereunj lawfully authorized in writing, shall have the force and effect leases or estates at will only, and shall not, either at law or equiti be taken to be of any greater force or effect, any consideration making any such parol leases or estates, or former usages to the col trary notwithstanding." The second section makes an exception i favour of leases not exceeding three years, whereupon the reservJ T&fxt shall amount to two-thirds of the full improved value. , By section third, it is enacted, that no leases, estates, or interesi either of freehold or terms of years, or any uncertain interest, nj being copyhold or customary interest, in, to, or out of lands hereditaments, shall be assigned, granted, or surrendered, unless deed or note in writing, signed by parties or their agents therej authorized by writing, or by act and operation of law. The fourth section enacts, that no action nhall be brought wherej to charge any person upon any agreement made upon any contr or sale of lands, tenements, or hereditaments, or any interest in I concerning them, unless the agreement upon which such actij 1 2 Conun. 806-306, referring to 3 Leav. 1-2, and Stra. 764, neither of which references support | proposition. 2 3 Pre$t. Aba. 61 ; and see also 1 Prest. Aba. 164. 3 Powers, 242, 4th ed. 4 1 Vend. & P. 132. AS TO ABSTRACTING DEEDS. >^''«'( 1181 be brought, or some memorandum or note thereof, shall be in fiting aTid signed by the party to be charged therewith, or some her person thereunto by him lawfully authorized. ' • ...,4 ... And section seventeen enacts, that no contract for the sale of for the price of ten pounds shall be good, unless a part of the is delivered, or something is given in earnest, or that some or memorandum in writing of such bargain be made and and by the parties or their agents. .jj) f, •Yv.M'fi; ni , A>,"r..>V '■ By these sections it will be seen, " that all leases, estates, interests (freehold, or terms of years, or any uncertain interests " in lands, pd that " all assignments, grants, and surrenders " of such leases ates, or interests must be in writing, and are to be signed ; and d all contracts for lands, or goods of ten pounds value, must also i signed, but that no other deeds than these are directed to be tied by this statute. The construction put upon the words of the , and fourth sections, by one of the eminent writers last referred id, is, that the terms of the first section are co-extensive with those (the foui*th, and extend to every possible interest in lands which mot within the exception of the second section.^ And this con- action although not perhaps, according to the words of the t,' is consistent with its intent and objects. All that the Statute Frauds therefore, has enacted, according to its most liberal struction, is, that all deeds, conveying, assigning, granting, and ending real property or real chattels, and agreements for their lie, and contracts for goods of a certain value, shall be in writing, nd signed either by the parties conveying, &c., or their agents to i authorized in writing ; but all other deeds are unaffected by this hloh references support! A later case on the subject is Taunton v. Pepler,^ where I was determined that signature was not essential to a release by given to an administrator, and of course relating to personal operty ; which is in confirmation, as far as it extends, of the above barks. i*" ';'* ,.'?(''*•/■■' • ' i''!^ '' ' ■r\ .,i;*-,- llSnj.Vend. 67, 7thed. llSee Crosby v. Wadmwrlh, 6 Eaat, 610. ' UMidd. IW. I 1= ' ij'. is ' 1182 PROCEEDINGS IN THE MASTERS OFFICE. Another construction of the statute is, that deeds are left by it { at common law ; and signature is still unnecessary to them ; bii that the signature mentioned in the act is merely requisite to tfa iwtes in writing referred to therein. This opinion, howevel although adopted to some extent,^ cannot, it is submitted, correct. Considering the doubt affecting the point, it should always mentioned in the abstract what parties have signed the deeds. Receipt — Where money is to be paid under a deed, in all moden transactions a receipt is indorsed on the deed for it, and this recei| should therefore be mentioned in the abstract. It is the prop evidence that the money has been paid.'' But this does not appi to nominal considerations, for a receipt for them is never indor and is unnecessary,* as they are, in fact, rarely paid. A deed may be executed before payment of the purchase mone and the endoi-sed receipt is not 8upix)sed to be signed until it money is paid. In case, therefore, of deeds executed before the 18J September, 1865, if the consideration has not been paid, the absenj of a recital of payment, or of an indorsed receipt is deeral constructive notice of the nonpayment to future purchaners ;* an the grantor may have a lien on the property for the amount due him. But in regard to deeds executed since 18th September, 18(1 and registered, unpaid purchase money U no lien.^ . .M- So, where part of the money secured by a mortgage, appears, a receipt endorsed on the mortgage, to have been paid off, this pd should be noticed in the abstract.* . When the deed requires any further ceremony to render it perfd as enrolment, livery of seisin, a memorial &;c., the perfonnail thereof should be mentioned in the abstract. So also if the deed, or any part thereof, has been erased, infc lined, or cancelled, it should be noticed in the abstraqt.^ ■.*».*».»*??'/^*^' 1 Dixon ou Tit. Deeds, 666. a Bovmtree v. Jacob, 2 Taunt. 141 ; but see Lamtton v. Cork, 6 B. & A 606 ; 1 Dow. & By, C. and ante, p. 1171. 3 10 Co. 67 b. 4 Lee on Abu. 418, 471 ; Baldwin v. Duingan, 6 Grant, 596. 5 29 Vic cli. 21, s. 65 ; Ont. Stat. 31 Vic. c. 20, ». 68. 6 1 Pre»l. Abs. 156. 7 1 1'rest. Abs. 167. AS TO ABSTRACTING WIT.L8. 1188 ^ C06 ; 1 Dow. & By 211 Where it is the case, it should be mentioned that the deed has len registered, and in what book and page the registry is to be nd. In short, any other fact which accompanies the execution of the , and which in any way affects its validity, should be stated in le abstract. , ., , 2. Aa to Abstracting Wills. ]--j Id abstracting wills, the date should be taken from the will, and Kit from the letters of probate. Any charge imposed for the lyment of debts, legacies, annuities, &c., should be shown ; and if I debts are scheduled or specified, they should be mentioued in 1 abstract ; but when there is a trust for the payment of debts I legacies, and thQ debts are not specified or schediled, and it «3 not appear that all the debts have been paid, there does not oat any reason for stating the legacies specially, since the pur- er is not under any obligation to see that they are paid.* The clause exempting a purchaser or mortgagee from seeing to I application of the purchase-money, if it is contained in the will, Kiuld always*be mentioned in the abstract. In other respects, the rules laid down for abstracting deeds apply iqaally to wills, but, in general, wills should be more fully given ; nd where they are informally drawn, they should properly be given vhatim. '»: riiT MK'fnT.- •ItlTitiy "'! ■V;i-. 'jiw •;{{' At the foot of the will should be shown the time of the death of (testator, the court in which the will was proved, and by whom, 1 the time of the probate, and if registered, the fact of registra- ion should be added.* , , If there be a confirmation of the will by the heir at law, or any nveyance taken from him, or any proceeding had against him, to ablish the will, or if there be any interest left undisposed of, pMch descends to the heir at law, it is material to state who was ! heir at law of the testator at his death ; and when the circum- hSuftAv. Ouyon, 1 B. C. C. 180 : Humble v. BUI, 1 Eq. Ca. Ah. 353, C. pi. 4 ; Barker v. Dttke of \ . lyvmhire, 3 Meriv. 310. 'IPrMt.Abfc. 182-186. w '1' 1184 PROCEEDINGS IN THE MASTERS OFFICE. stances of the case require it, there should be a deduction oftj title from heir to heir, or from heir to devisee, and iu .some < from heir to executor ; as, foi* example, where the land is conver into money, quoad the heir, or where the heir takes a lapsed lega or part of a residue as lapsed or undisposed of, or the residue | trust monies by resulting trust^ Where any devisee under the will dies in the lifetime of testator, the fact should be stated ; and where a will is partially I wholly revoked, the deed, will, or circumstances which are causes of revocation, should be mentioned, and it is most correct I state deeds, wills, &c., in the order of their dates.^ It is also usual to state that the testator died without altering i revoking, or without altering or revoking his will as far as I related to the lands iu question. ''■»''U.> .Dl.fll. I f f-.r. •n> ' So also where a will is proved in the Couiii of Chancer}- testes, the fact should either be noticed generally, or the decreel the court should be abstracted, when it is material to the title i some other account.^ . '.n In wills of real estate, executed before tlie stat. 1"* Vict. c. ' execution in the presence of, and attestation by, three witiiesi should always be mentioned ; and in wills of personal estate, if th have been executed and attested, these facts should also be stafc I In wills executed after the statute, it .should be stated that j provisions have been complied with. . . , . , , , i , ,. Codicils which revoke, alter, or add to a will, should be gi\ according to the order of their dates, and if they vary the state the title, they should be stated as separate instruments. When a codicil republishes a will, the date of the republicat^ should be added ; and it is more proper to state it as a separate i independent fact, according to - the order of its date, than by memorandum at the foot of the will.* 1 1 Pre»t. Abs. 183. 2 1 PreH. Aba. 184. 3 1 Pre$t. Abs. 185. 4 1 PreH. Abs. 184. without alteriiiffl will as far as! I be stated that AS TO ABSTRACTINO MISCELLANEOUS DOCUMENTS. 1185 i I When a person claims, as the executor of an executor, or the cutor of a surviving executor, it should be shown that the will I proved by such first executor or surviving executor, and the presentation should be carried on by shewing the probate of the 1 of the only executor or the surviving executor in each grada- of ihe succession. And when the executor or surviving ecutor dies intestate, there should be an abstract of letters of linistration, de bonis non, of the first testator ; and to make out I representation by an executorship to a surviving executor, the t of his survivorship should be shown by certificates of burial of ! co-executors before his death.* . _ [But, unless the title has been varied by intermediate acts, it Qot seem necessary to show the letters of administration lined by each sucQessive administrator.^ I Letters of probate are good evidence of the facts they state ; but facts are mis-stated, or can be controverted, a purchaser might ke such mistake a ground of objection the title.^ Letters of probate, or administravion, do not form any essential of a title to real estate, althougn it be derived under an brity to executors to sell.* 3. As to Abstracting Miscellaneous Documents. • .;, \Ukr8 of Administration. — Wherever letters of administration (material to the title, they should be abstracted, whether general ;-^'7-''' : /J^ Citi ,;; "*-;'jr»>i ■^. ';vi >^'>;-;! J--i."r. I The abstract should show the date of the letters of administra- ,by whom they are obtained, out of what court, viz., a court of upetent jurisdiction, and the subject of the administration.^ Urivate Acts of Parliament. — In abstracting private acts of rliament, the following parts should be given : 1, The time of > passing of the act, that is to say, the date of the royal assent. [The title of the act. 3. The recitals in the act, if they are in y way important. 4. The enacting clauses, which should be fully hfntt. AbB. 186 ; Com. Dig. Admon. O. Off. Ex. 146 ; Touch. 464. FlNit.Abs. 186. S 1 Pre«t. Abs. 187. f,«t^- CUtwrt. 8 Camp. 889 ; Comb. 47 ; but se« St. Leger v. Adami, I Ld. Raym. 731. i |'8«lft»rt.Ab«.188. 51 f— 1= .0 186 PROCBBDINOS IN THE MASTER'S OFFICE. given, and the exception, or saving clause, if any. The mij correct practice is to deliver a printed copy of the act with abstract. Judgments. — When judgments and Jl. fa's, against lands issu thereon affect the title, or are assigned and kept on foot to proti the title, they should be noticed in the abstract ; and if they i assigned, the assignment and declaration of trusts should be adde When they are known, or when there is not any outstandj estate by which the purchaser can be protected from them, reason of his being a purchaser for a valuable consideration, without notice, it is the duty of the vendor's solicitor to fumisli I purchaser with an abstract of the judgments.' Decrees. — Where decr'^es or decretal orders are material to title, they should be '■abstracted, but only such parts should be giJ as affect the title. If the decree directs a reference to the master, his report sho also be abstracted, and its confirmation by the court shouldl stated. Wherever money is paid into court, and it is incumbent to that it has been so paid in, and there is no subsequent order m recognizes the payment, the fact of payment should be proved bjj office copy of the accountant-general's certificate.* It may sometimes be proper to state the substance of the bill and answer, and other proceedings in a cause, in the abstracj well as the decree. ■•■■> •■ . ■i ; ¥ I m Whenever a decree is founded on a master'^ ~^^ rt, the re should bo abstracted, and the order for confirn u. K any proceedings in insolvency affect the title, wheiier on rj tration or not, they should, if known to the vendor, be shq abstracted. 1 1 Prest. Abs. 100. 2 See Richards v. Barton. 1 Esp. N. P. C. 299 3 1 Prett. Aba. 100. AS TO ABSTRACTINO MISCELLANEOUS DOCUMENTS. 1187 |C(m(rac<« for Sale. — The contract for the sale or mortgage should lit be fully abstracted, or, as is the more usual custom, a copy of Lbould accompany the abstract ; and it will, of course, be the duty [the counsel before whom it is laid to see that the vendor shall ke such a title to the lands as he has contracted to do. II. ABSTRACTS OF TITLE OF PROPERTY NOT FREEHOLD. {—Leaseholds. — The abstract should commence with the deed iting the term, and the mesne assignments should then be given, lether with the wills and other documents connected with the |lf the original lease is made by virtue of a power contained in a br deed, will, or act of parliament, such deed, &c., should be cted, so far as to shew that the power was well created and icuted.* •- ,.. ■ t pe registration should also be mentioned in the abstract. li Personalty. — In abstracts of title to personalty, the deeds, wills 1 other documents, should be abstracted according to the rules [fore laid down with respect to freeholds, so far as the different fiurea of the property will admit. Of the professional duties connected with Abstracts of Title. Having considered the form of the abstract and its usual contents, IriU now be proper to mention the professional duties connected jithit; and this chapter may be properly divided into — I. The of the vendor's solicitor. II. The duty of the purchaser's licitor : and III. The duty of counsel. And the rules which will [laid down will equally apply on a mortgage, or other charge of erty, as on a sale. I. The duty of the Vendor's Solicitor. " ' he vendor's solicitor must, at the vendor's expense, prepare the act of tb title of the premises to be sold or charged, and do I necessary acts for completing the title .^ [lee Cooper v. Denru, 1 Ves. J. 666. IBWMV. Higginaon, 1 V. & B. 629. < . p M. 1188 ■^ PROCEEDINGS IN THE MASTER'S OFFICE. He will often be able to produce a title mut^b more remote I the requisite period, but it will be generally imprudent to do boJ it must incre^^se the expense, and may give rise to useless embarrassing enquiries. The vendor's solicitor should suppress no fact or deed mate] to the title. Whenever he begins with the root of the title I ought to abstract evo-y subsequent deed, and if he were to suppif any by which the purchaser should be damnified, he would! answerable for the loss. But there is no pretence for a purcha requiring, or a vendor's solicitor furnishing, an abstract of allj deeds in his possession however ancient.^ Where there is a mere presumption of the satisfaction of charge or incumbrance, the deeds should always be abstracted,! cause the presumption may be rebutted by contrary evidence, i then it will not avail.^ If a purchaser discovers any fact which has been concealed : ^ him, and which affects the security of his title, and there has I a decided misrepresentation on the part of the vendor, although has paid his money, and the premises have been conveyed to 1 he will be entitled to have the conveyance set aside, and his ; chase-money repeid with cbstF, although no interruption to his] joyment has either been mado or threatened.^ The Court will not exercise its summary jurisdiction to con a vendor's solicitor to perfo'^^n an undertaking, given by him at| sale, to do certain acts for clearing the title to the estate.^ If the property has remained a considerable time in one fai or is of great extent and importance, it will always be prudent, fore a sale or mortgage, to submit an abstract of the title to coi on behalf of the vendor. By this ineans, the real difficulties defects of the title may be known and remedied before it is bron into the market. Or if the defects cannot be remedied, they be provided for by the articles of sale, which may rcRtrict inqn 1 2 Sua. Vend. & P 58 ; Riehards v. Barton, 1 Bsp. N. P. C. 268 ; 1 Prtf" Abs. 64. 2 See Bamell v. Harrit, 1 Taunt. 480. 8 BdtoardB v Me'Leary, Coop. 808 ; 2 Swuiat. 277; 8. C. on appeal. 4 Pearl \. Bu$Ull, 2Stm. 88. ABSTRACTS OF TITLE OF PROPERTY NOT FREEHOLD. 1189 nd a certain date, or specify that the title is open to certain tioDB, and must he taken subject to them. , ., , I the lands are sold by public auction, it seems doubtful whether ; of sale, providing that the purchaser shall take a defective .would be held to be valid. Thus, in a late case from Scot- where the vendor stipulated at a public auction, by the ties of bule, to deliver certain specified deeds, which were de- iaB " all the deeds in his custody," such a provision was held evoid ; Lord Lyndhurst, C, observing, that he never heard that a vendor provides by the conditions of sale, that he will > to the purchaser only certain specified deeds, that the pur- must take such title as appears upon the deeds.^ But it is [that the vendor may stipulate by private agreement tba- the baser shall accept the title such as it is ;^ and that a purchaser [Waive bis right to a good title by concluding an agreement he has full notice that he is not to expect a title beyond a period. That may be matter of notice and not of contract. ^ I even on a sale by public auction, stipulations of this nature Isometimes be allowed. Thus, where assignees put up to sale jknkrupt's interest in an estate, " as he lately held the same," istract of which might be seen at a particular office, and the ^oneer, on putting up the estate, explained to the bidders that I a resale, on account of a defect of title, and that the assig- ^liaving rescinded the contract, again came before the public I Buch title as they had, and that the purchaser was not to la good title, but take it as it \\is, the Vice-Chanceilor, (Sir I Leach) held that the vendee coul i not insist upon any other i such as the bankrupt had, observing that a vendor, if he ijjht fit, might stipulate for the sale of an estate with such title |»8 he happens to have. * And it may perhaps be laid down, [where notice of the articles of sale can be clearly brought home i vendee, he will be compelled to accept the title, although the [iBby public auction. But conditions like that in Freme \. it should be looked at with great jealousy, as they are often ifor the unwary.^ ^' ;.• " . ; ^ " f \ ' 'T.ioW.iBll. N. S. 661. • .. V^, . . , ^T. raWfMon, 6 B. & C. 606 . 9 D. & R. 620. ' , ,. 'M; Bokrter V. Cotwfly, 1 Jac. A Walk. 576. ,« and otter* v. WrigiU, 4 Madd. 364. 19 Vend. & P. 8 ; and Bee Southbi/ v. Uutt 2 My I. & C. 207 ; Wright v. WUaon, 1 Moo. & Rob. 'floWnwm V. Musgrove, 2 Moo. & Rob. 92. 1190 PROCEEDINGS IN THE MASTER S OFFICE. 10 If a vendor, before conveyance to himself, sells by auction, engages to make a good title by a certain day, which, not bavil obtained a conveyance, he cannot do, he is liable not only for t| expenses incurred by his vendee, but also to damages inouned j the contract not being carried into effect.^ The particular time at which the abstract should be delivered] generally mentioned in the contract for sale, and the abstri should be punctually delivered at the appointed time ; for, if abstract is not then delivered, the purchaser may at law avoid 1 contract f and it will also be avoided in equity, except in caj where the vendor has used aU due diligence, but has been prevenj by insuperable difficulties from fulfilling his contract ; ^ or perbij where the purchaser has neglected to take the proper steps I calling for the abstract.^ But it is now settled that time mayl made the essence of the contract as well in equity as at la{ And in one case, Lord Eldon expressed his disapprobation of i principle, which allows a vendor to deliver the abstract behind I appointed period.® : I 'f 1 : ;;'»w,>ij,v. ■'> •.M '1' If there be no time stipulated for the delivery of the abstracij must be delivered as soon as it can be reasonably prepared. Upon the delivery of the abstract, the vendor's solicitor muslj prepared to produce the deeds themselves to the purchaser's so itor, and if they are not in his possession, but can be obtainedl virtue of a covenant or otherwise, they must be produced, and [ expense of such production, including journeys if requisite, be borne by the vendor.^ If the deeds themselves cannot be duced, the vendor's solicitor must furnish attested copies of thj for the purpose of being examined with the abstract. Although a purchaser buys with full notice that a title cannoj made without the consent of a third person, yet it lies on the sej and not on the purchaser to obtain the consent. It cannot be 1 Uopkint V. Qratebrook, 6 B. & 0. 81. See Walker v. Moore, 10 B. i C. 416. 2 Berry v. Young, 2 Esp. N. P. C. 640, n. ; Wild v. Fort, 4 Taunt. 884. . . ,, v- 3 Lloyd V. ColUtt, 4 Yes. 889, n. ; Paine v. MeUer, 6 Yes. 840 ; Radoliffe v. Wamngton, U v« 4 SeeC^wtv. flom>yt»y,6 Yes. 828. „ . „ ,^ nr-.i „ 6 Uudton V. Bartram, 8 Madd. 440 ; uid see Boekm v. Wood, 1 Jac. & Walk. 419 1 Wmy v. Tum. 78. 6 Leehmere v. Bratier, 2 39^. k Walk, 289. 7 Hughei v. Wynne 8 Sim. o6. ! m THE DUTY OF THE PURCHASER'S SOLICITOR. 1191 that the seUer only agreed to part with his interest in the late, so far only as he was able to do so.^ II. The duty of the purchaser's solicitor. ? » vf %>i Where a time is appointe d for the delivery of the abstract, the chaser's solicitor should take care to demand its delivery on or oat that time, as he may otherwise be miable to enforce a specific rformance of the contract.^ If he wishes to rescind the contract, (the non-delivery of the abstract at the stipulated time, he should ire notice to that effect to the vendor, and demand repayment of his osit money ; for if he allow the time to pass by without any step (this kind, he will be held to have waived his right to take advan- ce of the negligence on the other side.^ And if the abstract is elivered after the stipulated time, the purchaser's solicitor should ily receive it, without prejudice to his client's right to take ad- ntage of the neglect.* The purchaser's solicitor must compare the abstract most care- lly with the original instruments there abstracted, and must see »t the abstract contains a full and correct statement of them. I if he finds them incorrectly abstracted, he should, by a rider, rby a correction of the abstract, supply a full and correct state- Dt of them. The deeds are generally examined at the office of iyendor's solicitor ; but wherever the deeds are, the purchaser's licitor is bound to go to examine them ; and, although it is a at or inconvenient place, the vendor must pay the expense of 6 journey.* The purchaser's solicitor can onij be exempted from* his duty of ining the deeds, by express contract with his client ; but he is bound to draw conclusions from the deeds ; nay, if he does so, does it at his peril, for he is bound to take the opinion of coun- on the deeds, and he is responsible to his client for giving a full complete statement of the deeds or other documents on which sks counsel's opinion.® iM »• Critne, 6 Taunt. 249 ; Mason v. - : der, 2 Marsh. 332 ; 7 T*unt. 9, S. 0. ItaSttMt V. Hmnfray, 6 Yes. 818. w»M«v. Price, 3 Anst 924 : Roper r. Coombe»,6 B. & C. 634. imh T. Bemam, 2 Anst. 627 ; Seton v. Slade, 7 Ves. 265 ; and rm Lloyd v. CoUett, i B. C. C. „ W; HivmU v. KniglU, 1 Yo. & Col. 401. I »tfp T. Page, 2 Sua. Vend. & P. 82 ; Hugket t. Wynne, 8 Sim. 86. yinm V. Pearman,3 B. 4 C. 70© ; 6 Dow. & Ry. (187. ' 5 « 1192 PROCEEDINGS IN THE MASTER'S OFFICE. It Ib the solicitor's duty also to see the whole of every instri ment, and not to be content with an extract; and this rule applie particularly to wills. And he will be responsible to his client fd any negligence in this particular.^ But an action for the negligend of an attorney is barred by the Statute of Limitations, six yeaj after default, and not after discovery .^ , , He should also see that the facts which support the title ai properly and legally proved, and that they are supported by doci ments, which will be the best evidence of their truth in a court justice.* . After these points have been attended to, the abstract should laid before counsel ; but it seems it is the duty of the sohcitor peruse it himself before sending it to counsel.* And if the purchas will not incur the expense of counsel, the solicitor should take i written memorandum from his client that such is the fact, and thq it is against the solicitor's advice. On receiving the abstract from the counsel to whom it has beej submitted, it will be the duty of the solicitor for the purchaser follow up all the enquiries, and to insist on all the requisitions mad in the opinion on the title therein contained. This part of his dutj must be most carefully attended to, as it is of the greatest impor ance. The abstract must then be re-submitted to counsel, in ordd that he may judge whether his requisitions have been correctlj followed. * It is also the duty of the pm-chaser's solicitor to search for A /d lands, recognizances, crown debts, &c., and all other defects in thj title, and to satisfy himself that there are none (besides those dia closed to him) which affect the title ; and the usual searches caj hardly ever be dispensed with advantageously.^ And if a purchasej is damnified by his solicitor neglecting to search for incumbrances it is clear that he may recover at law against the solicitor for anjj loss occasioned by his negligence.* ' ^ > « . ,r,^^ • .^^ - 1 IFifaon V Tu7 ; 2Svg. vend Sl p. 417. MORTGAGES, VENDORS LIENS. ,,.^^i Mortgages, Vendors' Liens. , ' ■> If 1193 if the purchaser is taking the land subject to any charges or liens ch are not to be paid oflf out of the purchase money, enquiry Kiald always be made of the persons appearing entitled thereto, I to their exact nature and amount ; care being taken to inform iem of the per ding contract for purchase ; for without such inti- ition the enquiry will be unavailing as' against the person claiming [charge of lien.^ I A mortgage, although on its face made to secure payment of a (ific amount, may be proved by parol evidence to be for a running Kount, and intended as a continuing security. \\si McMaster y . Anderson,^ a mortgage having been given by derson to the plaintiff, for £125, payable at a certain time, the Bftgagor afterwards sold the equity of redemption to Nigh, at the ae time showing him a receipt in full for all indebtedness, signed [the plaintiff and dated subsequent to the mortgage. On a bill ; filed for foreclosure after the mortgagor's death, Spragge, V. C. litted parol evidence to show that the mortgage, although given ta specific sum, was in facf intended as a continuing security for mortgagor's indebtedness from time to time, not exceeding |125, and said, " I think that Nigh can stand in no better position 1 Anderson. It was his duty to have inquired of the mortgagee . ' ' I The lien which a vendor had prior to the recent Kegistry Act, r unpaid purchase money, bound the land for twenty years, though ily six years arrears of interest could be recovered. . : ■; I A purchaser without notice of the lien, who has got the legal es- e, and registered his deed, can hold the land discharged from Y lien ; but if he had, before he paid his purchase money and ob- ned his conveyance, notice of the lien, the estate will be charged [his hands. , , ...',.• Asa general rule, every suspicious circumstance which would i a cautious man upon his guard and suggest inquiry, will be kmed notice. If, therefore, there is anything suspicious about ff of the deeds, as for example, if in the case of a deed executed Hore the 18th day of September, 1865, the endorsed receipt for y. 687; 2Suj|i. VenJ 1 Con. Con. Ev 6 ; Moffat v. Bank qf Upper Caixada, 5 Grant, 374. 2 MS. 22nd May, 1865. 'ft -w f> 1194 PROCEEDINGS IN THE MASTER'S OFFICE. the purchase money is wanting, or is unsigned, proof of paymenl of the purchase money should always be called for ; the absence oi such a receipt being constructive notice to a purchaser that th| purchase money is unpaid.^ It is clear the lapse of even twerty years is not sufficient to raisJ the presumption of payment, because there may have been an acknowledgment of the debt ; and if an acknowledgment should sub] sequently appear, a future purchaser will be bound by it.^ Aftej forty years, however, if possesion has gone with the deed, paymenl maybe presumed. , ; . ,-:i: 'L'A'i.lM\ In the case of deeds executed since the 18th September, 1865i unpaid purchase money forma no lien on the land, the recent R3 gistry Act providing that* "no equitable lien, ^charge, or interes] affecting land shall be deemed valid in any Court in this Province t^fter this act shall come into operation as against a registered inj strument executed by the same party, his heirs or assigns." Bu| the act does not affect any liens created before the 18th of Sep tember, 1866. In McDonald v. McDonald,* it was contended that the act m retrospective, and that a lien existing before the act, was gonj under the above section. In giving judgment, Mowat, V. C, said " It is difficult to believe, and I do not believe, that the Legislaturl meant to legislate away existing ' liens, charges and interests.' Th| language used is certainly large enough to comprise equitable in terests existing before the passing of the act, as well as those arisinj subsequently ; but a like circumstance has been held in many case to be by no means a decisive test of a meaning of a statute, word quite as broad as those in question have been construed as not rd trospective. * * * i have examined most of the cases ; an| reading the enactment in question in the light of these cases, auj of the various clauses of the statute to which my attention wa called, I am of opinion that the 66th section has not aretrospectiv operation." 1 Baldtrin v. Duignan, 6 Grant, 695 ; Lee on Abs. 418, 471. . 2 Ball V. Ld. Riversdale. Beat 650 ; Stansfield v. Hob»on, 16 Beav. 23d ; 3 D. M.. ft O. 620 ; Rom\ V. Morley, 1 D. & J. 1 ; PendUton v. Booth, 1 Oifl. 35 ; 1 D. F. & J. 81. 3 a« Vic. c. 24, 8. 66 ; Ont. Stat. 31 Vic. c. 20, a. 68. 4 14 Grant, 138. ^ \ M.. &G.620;iiod*«l HJ'aSu r CROWN DEBTS. J .u . r/i Jn..;: >.< Crown Debts. .%'•'.' • , >» • ' Vi 1195 ; ,;■/:•.' Before the 15th of August, 1866, securities and engagements ta I the Crown, hound the real estate of the dehtors and also of their sureties, from the time when the security ^o the Grown was given, or when the office or engagement in respect of which the deht was (ontracted was acquired or entered into,^ provided the requirements I of the statute as to registration was complied with. ; By the statute,' ** no deed, bond, contract, or other instrument, I Dnder seal or of record, whereby any debt, or obligation or duty is incurred or created to Her Majesty, shall be valid or sufficient to charge or affect any lands or any interest in lands, of the person eieoating the same or affected thereby, as against any subsequent purchaser or mortgagee for valuable consideration of the same lands I from such person, or against any subsequent registered judgment the same lands against such person, unless a copy of such deed, [bond, contract or other instrument, certified by the proper officer having the custody of the same had been registered in the office of Ibe Clerk of the Court of Queen's Bench in Toronto, before the I execution of the deed, conveyance or agreement of such subsequent laser or mortgagee, or the registry of such subsequent judg- Iment." '"■''' ' The law has now, however, been altered, and in the case of bonds I or other agreements entered into since the 15th August, 1866. "No' bond, covenant, or other security, hereafter to be made or en- tered into by any person to Her Majesty, her heirs or successors, or to any person on behalf of or in trust for Her Majesty, her heirs or successors, shall bind the real or personal property of such person 80 making or entering into such bond, covenant or other security, to any further, other or greater extent than if such bond, covenant or I other security had been made and entered into between subject and of Her Majesty." " The* real or personal property of any debtor to Her Majesty, I her heirs or successors, or to any person in trust for or on behalf 1 Cov. Con. Ev 284 ; Lee on Abs. 894. 2Con.SUt. U. C. c6,8. ]. 3 2»&80Vic. 0.48, a. 1. l»*«0Vlc.c.48, •. 2. ^ 1196 PROCEEDINGS IN THE MASTER'S OFFICE. of Her Majesty, her heirs or successors, for any debt hereafter con- tracted, shall be bound only to the same extent, and in the same manner as the real or personal property of any debtor where a debt is due from a subject of Her Majesty." id J ) .'>,. As the act applies only to bonds or covenants executed since its | passing, it is unsafe to deal with any person who before that be- came liable on a Grown bond, until he has procured and prodaced his quietus, discharging him from all liability to the Crown,^ or re- leasing the particular lands in question from the operation of the bond. v<; M,' The statute^ provides, that ** The Governor in Cooncil may order that all or any lands bound by such deed, bond, contract or other I instrument, shall be released from the charge created thereby, and upon the production of such order certified by the President or Clerk of the Executive Council the Clerk of the Court of Queen's Bench shall enter and register the same in the said book as a re- lease of the lands mentioned in the order, whereupon the lands shall be released accordingly." • By an act of the Legislature of Ontario, passed during the session of 1873, it is provided that " From and after the first day of I January next, any lands bound by the registration in the office of the clerk of the Court of Queen's Bench in Toronto, of any deed, bond, contract or other instrument whereby any debt, obligation or duty is incurred or created to Her Majesty, in respect of any matter \ within the jurisdiction of the Government of Ontario, shall be re- leased from the charge created by such registration, so far as the same is within the authority of the Government of Ontario." This, however, is not to aflfect obligations, or release any charge, which may, previous to the first of January, have been obtained against any such lands by virtue of any writ or other proceeding. The search for Crown bonds should be made at the office of the Clerk of the Court of Queen's Bench at Toronto ; but the Inspector under the Act for Quieting Titles^ has also an alphabetical list of | all registered Crown bonds. ^■^'' '^ ^'■ X Cov. Con. Ev. 2S6. 2 Con. Stat. U. C. a. 5, a. 3. 8 29 Vic. c. 25. Sf2>{ ^;,=. EXECUTIONS. ,M ;-r.,;v 1197 • - Executions. Search must in every case be made in the office of the Sheriff of I the County to ascertain whether there are in his hands any writs of execution against the lands of the vendor, and a certificate ob- Itained that there are none. To cover the contingency of writs returned by the Sheriff for re- Inewal, the certificate should state no*, only that there is no execution in his hands at its date, but that there has been none for thirty I isys previous. The certificate should also state that there has been no sale of the land under execution during the preceding six months. This is a sufficiently long period to carry back the search, because the statute^ provides, that *' all deeds of lands sold under process issued from any of the Courts of Law or Equity in Ontario, shall be re- jjistered within six months after the sale of such lands, otherwise le parties respectively claiming under any of such sales, shall not le deemed to have preserved their priority as against a purchaser in good faith who may have registered his deed prior to the regis- tration of such deed from the Sheriff or other officer." Before the passing of this act, no time was limited within which I Sheriff's deed required to be registered ; and such a deed, though unregistered, could not be defeated by any subsequent conveyance by the party whose lands had had been sold by the Sheriff."^ Now, however, purchasers are protected against the possibility i{ any unregistered deeds from Sheriffs being outstanding, as the Inme statute provides,^ that all deeds for lands sold *' under process Nlaw, before the passing of this act, shall be registered within lime year after the passing of this act, otherwise the parties re- Wctively claiming under any such sales shall not be deemed to % preserved their priority as against a purchaser in good faith Bmay have acquired priority of registration." 1 it \nc. c 24, s. 66 ; Got. Stat. 81 Vic. c. 20, a. 68. t BvmtomT. Daly, 11 Q. B. U. C. 211. StVVic. c. 24, B. 67 ; Ont. SUt 81 Vic. c. 20, 8. 6». P 1198 PROCEEDINGS IN THE MASTER'S OFFICE. Taxes. < , . A certificate from the treasurer of the county as to arrears i taxes, or that there are none, should always be procured. Tlij certificate should show un its face, that the statement of taxes arrear for the preceding year has been returned to the count! treasurer by the township treasurer.* If it does not show thif then a certificate must be procured from the township treasurJ also, in which it should be stated that the collector's roll has 1 returned by that officer to the treasurer.* If the roll has not beej returned, the collector's receipt for the taxes of the past year be sufficient : but the county treasurer's certificate is required i every case, to show that there are no previous arrears. A search must also be made to ascertain whether there hq been any sale of the land for taxes during the preceding eighte^ months. This period, over which the search must extend, is fixeJ because the Registry Act' provides that every deed made by Sheriflf or other officer, for arrears of taxes, must be registere within eighteen months after the sale, otherwise the parties r| spectively claiming under any such sale, shall not be deemed I have preserved their priority as against a purchaser in good faii^ who may have registered his deed prior to the registration of tl| deed from such Sheriff or other officer, j n. v The Registry Act of 1865 contained* an exactly similar provisioij but until the passing of that act, there was no limit to the tin within which such a deed required to be registered. Purchasers are now, however, protected against the risk of ail unregistered deeds on sales for taxes, executed before the 18th Sej tember, 1865, as the statute^ contains the following provision, "a deeds for lands sold for taxes, or under process of law, before tl passing of this act, shall be registered within one year after t| passing of this act, otherwise the parties respectively daimii under any such sales shall not be deemed to have preserved thd '7WT T<.»- J ' 1 28 & 30 Vic. c. 63, a. 116. 2 29 & 30 Vic. 0. 53, 8. 104. 3 Ont. Stat. 81 Vic. c. 20, s. 68. 4 29 Vic. c. 24 a. 66. 5 29 Vic! c! 24,' 8.' 67*; Ont. Stat. 31 Vic. c. 20, 8. 69. ■■ .'I .V .tfr'"' SPECIAL IMPROVEMENTS. 1190 riority as against a purchaser in good faith who may have acquired riority of registration." , , ., ,_^, ^ ,_, ^ , , ...ii Special Improvements. Enquiry must also be made whether the property is liable to any lecial rate for local improvements, such a rate being made by fttute, a charge upon the property benefited. /;■' '.'.1.1 , ■ :" By the Consolidated Statute^ of Upper Canada relating to Muni- al Institutions, the Council of every city could pass by-laws^ for easing and levying upon the real property to be immediately lenefited by the making, enlarging or prolonging of any sewer, or Die opening, widening, prolonging or altering, macadamizing, ading, levelling, paving or planking of any street, lane or alley, way or place, or of any side-walk therein, a special rate Scient to include a sinking fund, for the repayment of deben- m, which such councils were thereby authorized to issue in Bch cases respectively to provide funds for such improvements. To the validity of such a by-law it was not essential, that it liould be in accordance with the restrictions and provisions con- tined in the 223rd section of the act, which regulated the forma- ties necessary in by-laws for contracting debts by borrowing oney or otherwise, or for levying rates for payment of such debts |iittthe rateable property of the municipality. To the validity of such a by-law it was, however, necessary, ' y it should name a day within the financial year in which it ^a8 passed when it was to take effect ; the whole of the debt and lie obligations to be issued therefor, were to be made payable in lenty years at furthest from the day on which the by-law took feet ; also, that it should settle an equal special rate per annum 1 addition to all other rates to be levied in each year on the real operty described therein, and rateable thereunder, for paying debt and interest ; and it was necessary that the special rate bnld be sufficient to discharge the debt and interest when pay- We, irrespective of any future increase in the value of the real .(, .. .. !lC.6i |C.54,8. 299, sub 800,2. J IC.64,8.801. ■ , , , 1;^ *i ;■ "■ i« kiisiiiiL' 1200 PROCEEDINGS IN THE MASTER'S OFFICE. t • i property, and also irrespective of any income from the temporal investment of the sinking fund or of any part thereof. The by-law was also required to recite the amount of the dej created, and, in general terms, the object for which it was create the total amount required to be raised annually by special ra for paying the debt and interest ; the value of the whole of t| real property rateable under the by-law as ascertained a| Anally determined ; the annual special rate in the dollar, or foot frontage, or otherwise, for paying the interest and creati^ the sinking fund ; and that the debt was created on the securij of the special rate settled by the by-law, and on that security on The Municipal Act of 1866^ contains exactly similar provisio^ to those above mentioned ; and by the act of the Legislature Ontario amending the Municipal Institutions Act,^ the above pij visions are extended to towns also. The rent which the Councils of cities, towns and incorporal^ villages are entitled to charge in respect of property drained in a common sewer, or which by any by-law is required to be drain into any such sewer,' does not form a tax upon the land, buj personal charge upon the owner ; the authority given by statute being "for charging all persons who own or occupy pij perty which is drained," &c. In townships,* on a petition of the majority in number of resident owners of the property in any part of the township, the draining of the property being presented, the municipal coU cil could, under the Consolidated Statute, if of opinion that draining of the locality described would greatly benefit the to? ship, pa^ a by-law,^ providing for the draining of the localili for assessing and collecting from the proprietors of the sevei lands immediately benefited by the draining, so much of the c| thereof, and of procuring the examination, plans and estimatesj be made, and of all other expenses incident to the works, as 1 20 & 30 Vic. c. 61, 88. 301, 302, 303. 2 Ont. Stat. 31 Vic. c 30, ». 36. 3 Con. Stat. U. C. c. 54, s. 297, sub sec. 20 ; 29 & 30 Vic. c. 61, s. 206, sub sec. 66. 4 Moore v. Hynet, 22 Q. B. U. C. 107. 6 Con Stat. U. C. c 64, s. 278. 4 SPECIAL IMPROVEMENTS. 1201 t exceed the benefit which the lands lespectively derive from ich draining, and in proportion, as nearly as may be, to the iQefit of each of the proprietors therefrom. The amount so to be assessed or collected would appear to form leliarge upon the land, because the council are further empow- d' to provide by the by-law " for ascertaining and determining, ough the engineer, what real property will be immediately nefited by the draining, and the proportions in which the assess- ot should be made on the various portions of the lands so bene- By the Municipal Act of 1866,' the powers of tcwnship councils extended to passing by-laws, for, among other things, " the Unineg of any stream, creek or water course, or for draining of I property." There is no doubt that under the provisions of the latter statute, |ke assessment for any of the above purposes will form a charge on the property ; the council being given the power* to provide [the by-law, " for assessing and levying upon the real property ^be immediately benefited by the deepening or draining, a special sufficient to include a sinking fund, for the repayment of libentures which such councils are hereby authorized to issue in jieh cases respectively, to provide funds for such improvements, jDJ for so assessing and levying the same, by an annual rate in the ar on the real property so benefited, in proportion, as nearly as uy be, to the benefit derived by such portion." I The rate so assessed is to be levied "in the same manner as ;e8 are levied."* . . [The councils of cities, towns and incorporated villages may also I by-laws^ for sweeping, watering, or lighting any street, square, ley or lane, by means of a special rate upon the rateable property irem. . > |l Con. Stat. U. C. oh. 64, sec. 279, sub sec. 4. .. ■ list 30 Vic. ch. 61, sees. 281, 282. II9430Vic. ch. 51, sec. 282. '' : hhl SUt. 31 Vic. ch. 30, sec. 30. 1 1 It 1 30 Vic. ch. 61, sec. 840, sub. sec. 2. mM ill P 1202 PROCEEDINGS IN THE MASTER'S OFFICE. The assessment undsr any by-law of the council of a town incorporated village, for making or repairing any pavement in ar public way or place near to any property, would appear, under th decision of the Court of Queen's Bench in Moore v. Hynes,^ not form a charge upon the property ; the power given to the counc in such a matter being, for assessing or collecting from the prJ prietors, &c., such sums as may be necessary. County councils^ may pass by-laws for levying by assessment all the rateable property within any particular part of two tov ships, to be described by metes and bounds in the by-law, in dition to all other rates, a sum sufficient to defray the expenses i making, repairing or improving any road, bridge or other publj work, lying between such parts of such two townships, and by whiij the inhabitants of such parts will be more especially benefited. Mutual Insurance Companies. It is important to ascertain, whether the vendor or any fori owner has ever insured the buildings on the property, with aj Mutual Insurance Company, because the property will, iu sucl case, be liable to the amount of the premium note given by assured, and of the assessment thereon, for a proportionate parti any losses or expenses accruing to the company during the contj uance of the policy. The statute' relating to Mutual Insurance Companies providj that, "all the right and estate of the assured, at the time[ insurance, to the buildings insured by the company, to the laij on which the same stand, and to all other lands thereto adjacel mentioned and declared liable in tlie policy >f assurance, shall sta pledged to the company, and the company may sell, demise mortgage the same or any part thereof, to meet the liability of i assured, for his proportion of any losses or expenses accruino the company during the "ontiuuance of his policy, which sale, dei or mortgage, shall be made in the manner specified in the pojj of the assured." 1 22 Q. B. U. C. 107. 2 Con. Stal. XT. C. c. 54, 8. 342, sub sec. 6 ; 29 & 30 Vic. c SI. s. 344, .sub sec. 6. 3 Con. SUt. U. C. 0. 62, a. 67. MUTUAL INSURANfJE COMPANIES. 1203 The inquiry a8 to such liens is an exceedingly important one, Ld should never be overlooked, because it is not necessary in order (preserve the lien of the company, that any instrument should {registered charging the lands mentioned in the policy. In Montgomery v. The Gore District Mutual Insurance Company, ^ IfanKoughnet, C, said, " I regret, contrary to my first impression, jhave to come to the conclusion that such a policy of assurance, rsnch an assurance as is made the subject of consideration here, b.3 not fall within the operation of the registry laws. In the first ice, the legislature, m the act creating the lien, do not appear ) contemplate that it should. They subject the right Jand estate itlie assured in the land at the time of insurance to the claims of le company. Now, the insurance may be effected without the isning of a policy. The policy is but evidence of the insurance. * * * felt however this may be, suppose the policy made o^ t, how are le company to register it ? It is not pretended that they are to Agister anything else. The moment the policy is prepared, subject I the delivery of the note, and perhaps to the payment of the istalment by him, as provided for in the 22nd section of the act, ibecomes the property of the assured. What right have the com- Uny to register it, and how can they register it ? It is not a deed I them ; it is a deed by them. It J the property of the assured lom the moment it is ripe for delivery. But the chief difiiculty pes in the machinery by which registration is to be effected. The y laws require that the instrumelit of which the memorial is (be put on registry shall, for the purpose of procuring such regis- stion, be produced to the Registrar, and that he ahall thereon, Qediately after the registration, indorse a certificate thereof. I mot see how the company, after the policy has become complete, 1 the property of the assured, can insist upon retaining it for le purpose of registration, and if they cannot do so, they are not flimeable because it is not registered; and they cannot, therefore, i deprived of the lien which the law, without insisting upon regis- *tion, has given to^them." i no Grant, 604. 1204 PROCEEDINGS IN THE MASTER'S OFFICE. - Dower. If there is any deed in which the grantor's wife has not joined bar her dower, or if the title is derived under a will or by inhe^ tance, a claim for dower may exist. In such a case, evidence that the grantor or testator was unma ried, should be called for, or if married, then proof of the widov death, or that under the will she was put to an election bekej her dower and some other benefit, and that she has exercised election by taking the substituted devise.^ To consummate the right to dower, three things are requisitj viz. : marriage, seisin, and the death of the husband.^ It is not necessary, in order to establish a widow's right to dow^ to prove the marriage by persons who were present at the cer mony;' evidence of cohabitation and reputation of marriage is sij ficient.* It is necessary that the husband of the woman claiming dov must have had seisin of the lands and tenements out of whij dower is claimed during the overture.^ Possession and receipt ofrents has been held prima /acie evidei of seisin ; but in another case it was held that the demandme could not be allowed to recover on mere evidence of possession i her husband, without proving his title.* By the Consolidated Statutes of Upper Canada^ relating to dowj *' When a husband has been entitled to a right of entry or actij in any land, and his widow would be entitled to dower out of i same, if he had recovered possession thereof, she shall be entitl to dower out of the same although her husband did not rocoi] possession thereof ; but such dower shall be sued for or obtair 1 As to election by a widow, see Wegtaoott v. Coekerline, 13 Grant, 79 ; Colem-an v. Olanv Grant, 42 ; Fairweatfier v. Archibald, 15 Grant, 2B5, 2 Co. on Litt. 31. 3 Phipps V. Moore, 5 Q. B. U. C. 10. 4 Qraham v. Law, « C. P. U. C. 310. C Parke on Dower, 9A. 6 Draper on Uower, 28. 7 Ch. 84, B. 2. DOWKR. 1205 Jiinthe period during which such right of entry or action might [enforced." J » ISince 6th March, 1834, a widow is also entitled to dower out of liitable estates, the statute* providing, that, " When a husband beneficially entitled to any land for an interest which does not I his widow to dower out of the same at law, and such interest ither wholly equitable or partly legal and partly equitable, is an lite of inheritance in possession, or equal to an estate of in- ice in possession, (other than an estate in joint tenancy), ihi8 widow shall be entitled in equity to dower out of the same." |itwillbe observed that while all that is necessary to entitle a nan to dower at law, out of lands where the husband had the 1 estate, is that the husband should have been seised during J covert lire, it is necessary to give her dower in an equitable in- I, that the husband should die entitled thereto. IP-.tci' n:ay be barred, since the 11th day of May, 1839, by the ii 1 ':• in a deed or conveyance of the land containing a re- lof dower,*^ but before that d^te it was necessary to render a t of dower efifectual, that the wife should be examintid apart from rkusband as to her consent to be barred of her dower, and that [certificate of such examination should be endorsed upon the Colevutn v. Olanv tis still necessary where a woman bars her dower by a deed to p her husband is not a party, that she should be examined, itiie fact of the examination certified on the deed.^ an act passed in 1861,^ it is enacted that no action of dower I be brought, in case the claimant joined in a deed to convey the lor release dower therein to a purchaser, though the acknow- Qent required by law at the time, may not have been had, or liigb any informality may have occurred in respect thereof. A d on the law of dower* has expressed the opinion that by this Mm. IV. ch. l.sec. 13 ; Con. Stat. U. C. ch. 84, sec. 1. |C«. Stat. U. C ch. 84, 8. 4 ; and see Ueward v. Scott, 2 Chan. Cbam. R. 274 ; HiU v. Greenwood, i? I Q B ^■ C. 404. But see MUler v. Wyllie, 17 U. C. C. P. 368. |tU Ul, ch. 7 ; 48 Geo. Ill, ch. 7 ; 50 Geo lU, ch. 10. m Sut U. C. ch. 84, sees. C, 7, 8, 9. In Vic. ch. 40, aoc. 19 ; Ont. Stat, at Vic. ch. 7, »ec. 28. I%r on Dower, 44. ,0 m' 1206 PROCEEDINGS IN THE MASTER'S OFFICE. statute acknowledgments of bar of dower, as formerly require^ appear to be abolished ; but this view has not generally been ad opted by the profession. A sale of the land by the Sheriff under an execution agcainst tlJ husband, does not defeat the wife's right to dower ;^ but a sale u conveyance by the Sheriff for taxes does. ^ Dower will be barred if not sued for within twenty years aftq the husband' s'^death.* And it cannot be recovered out of ar separate and distinct lot, tract or parcel of land which at the tii of the alienation by the husband, or at the time of his death, if] died seised, was in a state of nature, and unimproved by clearing fencing or otherwise for the purposes of cultivation, or occupation.] This statute is retrospective.^ Curtesy. Tenancy by the curtesy is like dower an estate for life, but diffeij from dower in being for the whole estate of the wife, not a merely. It is also necessary to entitle the husband to be tenaJ by the curtesy, that there should be issue of the marriage, capabj of inheriting, born alive during the lifetime of the mother.^ When the title depends on inheritance from a married woma who died before the 2nd of March, 1872, her husband may entitled to an estate for life in the lands, and evidence of his deaij should be called for, or a release of his interest procured. Tenancy by the ciu'tesy has now been abolished by the On Stat. 35 Vic, c. 16, s. 1. This act has been held by the Court Common Pleas^ (C. J. Hagarty dissenting) to be retrospective, an to apply to women married before the passing of the act. 'i f Legacies. i on Legacies charged upon lauds form a lien upon the property f^ twenty years from the time at which they become payable. Wher 1 Draper o.i Uower, 45. 2 Tonuimon v. Hill, 5 Grant, 231. 3 24 Vic. c. 40, s. 18 ; Ont. Stat. 32 Vic. ch. 7, sec. 22. 4 Ont. Stat. 32 Vic ch. 7, sec. 3. 6 Re Tate, 5 U. C. L. J. N. S. 200 ; Ont. Stat. 32 Vic. ch. 7. see. 23. 6 Co. on Litt. 29 b. ; Bmct^on EstateB. 40. 7 Merriek\. Sherwood, 22 C P. U. C, 467 LEGACIES. i2or d, 22 C P. U. C 4(ir ierefore, the title is derived under a will charging legacies upon te land devised, pvooi of payment, or that they have been released liQst be called for. The lapse of even twenty years is not sufficient to raise a pre- option of payment, but after forty years, if possession has gone ^ththe devise, pajrment may be presumed.^ If the land is charged with the payment of an annuity, its dis- rge must be proved in the same way as the release of a legacy.^ Theperioi within which an annuity may be j.^'esumed satisfied ^ist depend on the life for which it is granted. If it is fair to mime, in the natural course of things, that the annuitant is 1, the want of a certificate of burial cannot be considered as 1 insuperable objection to the title, but no case has occurred in iiicli such a presumption has been made in less than thirty years.' He should also observe particularly that the wills, if any, havebeen ily signed and attested, that the deeds have been executed by the ■oper parties, that the execution by them has been duly attested, I that the receipt for the consideration money has been pro- lerly endorsed and signed. * The case just cited is an important one on the subject of suspi- laoas circumstances amounting to notice, and there it was held that, [whatever is notice enough to excite attention, and put the party 1 his guard, and call for enquiry, is also notice of everything to it is afterwards found that such enquiry might have led, l^tliough all was unknown for want of the investigation." hi that case the Lord Chancellor said: — "The contents of the rument itself were perhaps calculated to rouse suspicion, and Mpt enquiry. But the back of the deed was checkered all over ^th suspicious appearances. The title of the deed, not in the sigrossing hand, but written in a somewhat slovenly way, and to the words of the title of different sizes, beget a suspicion of ICw. Coa Bv. 267 ; and see Re CaverhUl, 8 U. C. L. .1. N. S. 60. !''»i'. Con. Rv. 264. ""on. Con, Ev. 264. t i'ntudy V. Green, 3 Myl. & \. 69». .0 1208 PROCEEDINGS TN THE MASTER'S OFFICE. A- hurry and imperfection in the preparation of the instrumenl When does a statioiler ever send such a blank indenture out of M office, unless when pressed for singular despatch. Then the J ceipt written across one fold into a second square sideways, ani the signature in the like manner running into the secdnd squarJ But, above all, the receipt removed far from the top, and leavir such a space as might by the holder of the deed, supposing tha space to have been left in blank, have been filled up in any manne he chose. This was at once a circumstance to excite the greatesl] the most jealous suspicion, * * * every unusual circumstanc is a ground of suspicion, a .a prescribes enquiry ; and I hold ih receipt written here in a way to enable any person to commit i gross fraud — a way for that reason never adopted — was abundan grounds for suspicion, and demanded inquiry and explanatioij When to this we add the further unusual circumstance of thl party's name being written on the square below, and with a foU between it and the receipt, so that it was most probably writtej when the receipt was folded down, assuredly no one can hesitaC in pronouncing that whoever, especially a man of business, iookej at the deed, must have conceived such suspicions as to call foj inquiry." His attention should also be particularly directec' to the parcel^ The observations previously made on the proper parts of ti instruments to be abstracted, will be a guide to the purchaser] solicitor in this part of his duty. He must also see that tbe deeds or wills have been duly registere and memorialized, where required. In some instances, where the value of the property is small, where the title has been recently investigated, the solicitor undeij takes himself to advise on the abstract, without submitting it counsel. But, as m case of any invalidity in the title, the solicito would probably be held re*sponsible to his client, this course cai never be recommended, except with the precaution before mentionea Where this is reason to suspect that there is some information ij the knowledge of the vendor, respecting the state of the title, whicl he has not disclosed in the abstract, as the purchaser is entitled LEGACIES. 1201) [discovery from the vendor of all the information which he can imunicate, this may be enforced by a bill in equity, or under 1 usual order of reference, that the parties shall be examined on errogatories, and produce all deeds in their custody or power ; the purchaser's solicitor should enforce such right accord- gly.^ An afiidavit before a Master in Chancery is sometimes Ifectual in cases of this nature, and elicits the requisite information. Where any incumbrances are discovered, it will be proper to onsider what indemnities should be taken against them, or whether twill be proper to avoid the contract altogether. If the title turn out to be defective, the expenses of investigating ||ie title, such as charges for searching for judgments, and for com- the abstract with the title deeds, must be borne by the rador;- but in order to recover them, there must be proof of a ritten contract binding on the vendor,' and the expense of pre- Qg the conveyance can hardly in any case be recovered, for it lould not be prepared before the title is accepted. * I The purchaser's solicitor should call for and inspect the counter- of all leases and agreements for leases mentioned in the jstract ; and a similar precaution must be taken if the purchaser gg notice of a tenancy in any other way ; for notice either of a ise or of a tenancy will be held to be notice of the interest which tenant has in the lands ; and the purchaser will therefore be loimd by the covenants and provisions contained in the lease. ^ So, wherever there is an occupier, a purchaser will be bound to ijuire into the nature of the occupier's title ; and if he neglect to I so, he will have implied notice of the nature and extent of that ie. * But where the possession is vacant, a purchaser is not bound [constructive notice of the title of the late occupier. Thus, where Wer an agreement for an exchange between A. and B., each occu- illPreif. Abs. 258. Uiekardsv. Barton, 1 Esp. N. P. C. 267 ; Flureau v. Thornhill, 2 W. Bla. 1078 : BraCt v, Ellis, tai Jones v. Dyks, Sug. Vend. & P. App. vii. & viii. ; Walker v. Moore, 10 B. & C. 416 ; Jarinain V Egektom, 5 C. & P. 172 ; Hodges v. Jjitchfield, 1 Biiig. N. S. 492. VlUidl V. Archer, J Ad. k E. f>UO ; 4 Nev. k M 4S5. motgcx V. Litchfield, 1 Bing. N. C. 492 ; 2 Sug. Vend. A P. 52. Iliiic/iardijoft v. Sydenham, t Vern, 447 ; Taylor v. Stibbert, 2 Ves. Jun- 437 ; Eyre v. Dolphin, 1 I Biilii B, 301 ; DaaielH v. Davuion, 17 Ves. 433 : Allen v. Anthony, 1 Mer. ^82. VJtfitorwSUbbcrt, 2 Ves Jun. 437 ; //all v. Smith, 14 Ves. 426; Daniels v. Davison, 16 Ves. 249, S. C. 17 Ves 433; AlUn v Anthony, 1 Mer 282; Taplnr v. Baker, 5 Pri. 306 S. C. Dan 71, ind the rtporter's note. ■ ,;.(:i|| ff* p 1210 PROCEEDINGS IN THE MASTERS OFFICE. pied part of the other's estate, A.'s being freehold and B.'s leasehold B. became bankrupt, and the particulars of sale of his estate described it as " late of the residence of B." as leasehold, and containing thJ number of acres mentioned in the lease. The quantity of acres wa made up by the freehold taken in exchange ; but the purchaser diii not know that it was freehold : and it was held, that this was nol implied notice to the purchaser of the agreement for exchange, and that he might therefore recover in ejectment that portion of B.'i estate which was in A.'s possession.^ It frequently happens that a purchaser is willing to complet the contract for purchase before the proper investigation of the tit is complete ; and he may urge his solicitor to accept it before ; the requisitions of counsel are complied with. When, however, ii is remembered, that on a future sale or mortgage the expense of al these uninvestigated inquiries, and the satisfaction of all encumi brances, will fall on the purchaser himself, it will be prudent for thj solicitor to resist the completion of the purchase until every difi culty has been removed. And if, in spite of his opinion "to thj contrary, the purchaser insist on the acceptance of the title, thj solicitor should take a written authority from his client so to dc as that will exonerate him from all responsibility. Where the title is approved, it will be then proper to instruc counsel to prepare the purchase deed. In all important transaction it will be most prudent for the solicitor not to undertake this dutj himself ; for wherever a professional man gives his services to client, whether to prepare a deed or will, the law requires that hj shall prepare it with a perfect knowledge of its legal operation, and will render him responsible accordingly.^ The Duty of Counsel. It is the duty of the counsel before whom the abstract is laid, decide upon the validity of the title. He must see that it coii mences at the proper time, and that, it is properly deduced; must consider whether the instruments abstracted will effect th end proposed in preparing them ; and whether the persons executin * . . 1 Milei V. LangleVj l Buss. & Myl. 39. • 2 See Segrave v. Etrxean, 1 Beatt. 166. yi'\, THE DUTY OF COUNSEL. 1211 m had the power effectually so to do : he must see that the facts 1 which the validity of the abstract depends are supported by the Iproper evidence, and he must point out what that evidence should and he must demand every document not produced, which may ^Dcidate in any manner the state of the title. He should point flt any defects in the title, and, if they admit of a remedy, should liropose it ; but if he be satisfied of its validity, he may state the liost advisable mode of effecting the sale, mortgage, or charge in- liended by the parties. The counsel for the purchaser, mortgagee, &c., should see that [iere is a clear deduction, as well of the legal as the equitable (State, and that all the particular estates are determined, or can be Itonveyed to him or for his benefit ;^ and that there are no incum- Wices on the estate, such as mortgages, annuities, rents, crown 1, judgments, statutes, legacies, portions, rights, or titles of Jower or curtesy, or outstanding terms. He is not to judge of the prudence of accepting the title, but imply state all the objections to it. He must point out the facts, liad show the real state of the title. And he should always remem- Ikr, that he ought to insist on such a title for the purchaser as py not only be quietly enjoyed, but which he may compel a sub- quent purchaser or mortgagee to accept. On the examination of an abstract, counsel should, in the first itance at least, very rarely call to his assistance the doctrines of lumption, to explain or relieve the difficulties which occur in its He must insist on direct evidence of a good title ; but if it cannot be given, he may then take into consideration how far lurts of justice will presume that the difficulties which he feels do i exist. , T , , When other deeds or instruments are referred to in the abstract, I the recitals or elsewhere, they must be called for and examined. All outstanding terms must be assigned to attend the inheritance. rmerged. The legal title to them must be regularly deduced, and signment taken from the person in whom the legal estate is Mted. •','/ 18w Jerftiey t. Dauk, 16 Vei. 380. } • y 1212 PIKK'KKDINOS IN THE MASTERS OFFICB. ,0 Inquiry should be made for the wills of such persons as have died! seised in fee. And where a person seised in fee or in tail has! married, inquiry should be made for his marriage settlement, as it is unusual to marry without a settlement of the property of the parties ; and an affidavit before a Master in Chancery is sometimeti demanded, that no settlement, or agreement for a settlement, in fact exists. Inquiry should also be made when there is any doubti on the point whether any agreement or covenants as to dowep exists.* •■ • I-,.' It frequently happens that it is essential that the consideration money shall be paid in some particular manner, or to particuiaij persons ; and where this is the case, it will be the duty of counseM to see that it has been properly paid, and that the proper receipts have been taken for it. It will of course be seen, in such caae^ whether the deed or will under which the money is paid cent the usual clause for making the trustees' receipts sufficient dis-j charges. The parcels demand the strictest attention from the conveyJ ancing counsel. He must trace them with the greatest care through the different deeds, wills, and documents contained in the abstract If the identity of the lands to be sold or charged with those in the abstract is doubtful, the fact must be authenicated by extraneous! evidence, as by the production of the assessments to the land-tax! poor-rates, &c., for the last twenty or thirty years ; and where thesa have not varied, except in the name of the owner, it will be reason-j able to presume the identity of the parcels. * Counsel should never rely on the expressions, " fine levied an^ recovery suffered accordingly." It should be seen, by the produc tion of the proper evidence, that these assurances actually exist. If counsel discover any defect, it will of course be his duty point it out, however small the property may be, or whatever si may be advanced upon it. He will more readily accept a til which has recently passed through the hands of several purchaser! than one which is quite fresh in the market. 1 See » & i Wm. 4, ch. 106, Rec, 11. d 3 Prett, Abf . S3. THE DUTY OF COUNSEL. 1213 A common report that a title is bad, will also provoke a moro Itban usually careful examination. Where a defect occurs in an street, it should be seen whether it has not been cured by adverse JMSsession, non-claim on a fine, or by the release or confirmation of persons capable of releasing or confirming ; or whether from Ly other cause, it has not become immaterial.^ Where a valuable consideration is necessary to the validity of the leed, as in a bargain and sale, attention must be paid to this circum- litance ; but where the fact of payment is not mentioned in the deed, In may, nevertheless, be averred, and proved to have been paid.^ It should always be seen that there are grantors to the deed, who lire properly qualified, both as to their estates and their personal abili- that there are grantees capable of receiving a grant ; that there Improper words of grant ; that there is a subject matter to be granted IfMch is sufiiciently described ; that the estate is well limited, in point loflaw, and by proper and technical words, and that it is not too re- Inote. In examining an abstract, no portion of legal learning is so lloroughly essential as that of uses and trusts. It will always be icularly necessary to consider the operation of a deed, and its litations, first, as to its effect at common law, and next, under the [Statute of Uses, and, in particular, in what person or persons the estate is vested. The rules as to the merger of estates will come into constant operation in examining an abstract of title, ere the legal estates is found to be vested in one person, and the [uitable estate in another, the histories of the legal and equitable illes should be traced distinctly throughout the abstract. So the itory of the outstanding terms should be traced distinctly from at of the fee, as this plan will be found greatly to facilitate the irfect comprehension of the exact state of the title. Counsel must also pay particular attention to the recent alter- tlions in the law, and their bearings on the particular title under bnsideration. liPrett. Abs. 26. 1 1 1 PrtH. Aba. 300 ; see Uex v. Inhabitants of North Wingfleld, \ B, St Ad. 916. ^ ^f^^-. IMAGE EVALUATION TEST TARGET (MT-S) k " // ^/ ^ .«^ /. ^0 Z ^ 1.0 1.1 11.25 ■iilZi 12.5 £f 1)4 lU lU u 140 Photographic Sciences Corporation 23 WeST MAIN STRUT WIBSTIR.N.Y. 14SM (716) 172^303 \ J^ ^ -^ <^ v\ '4^ ' <^0 (6\^^^ P ■it M: 1214 PROCEEDINGS IN THE MASTERS OFFICE. Where also there have been several mortgages of the lands whio have been respectively transferred to different owners, it will found better to keep the several mortgages distinct, and ab,o t]| title of the equity of redemption. The fact that a mortgage previously existing appears to have I discharged by a certificate under the statute, does not relieve t| puichaser 8 solicitor from the responsibility of examining the certii cate of discharge. ° . ? *' I'll I.. • Mjt)'. , •'.» . •, .' : The statute^ giving such certificate the efiect of a re-con veyanj rendered it imperative, that it should be in the form prescribed the act, and duly proved by the oath of a subsci'ibing witness. Tl form given in the act showed that two witnesses were necessary its due execution, and the Registry Act of 1865,^ expressly requij two witnesses, but the subsequent Act of 1867,' declai-es that o| witness shall be sufiicient. ,,'».,. Since the 18th September, 1865, it is not imperative that the a tificate shall follow exactly the form prescribed, the words "or to I like effect," being used.* She statute* further provided that upon such a certificate h\ presented to the Registrar of the county, he may write the w( " discharged " and affix his name in the margin of the regialj wherein the mortgage has been registered, and the same shall deemed a discharge thereof ; and such certificate shall be filed numbered, and entered in the margin of the register, uuder i word discharged. By the Registry Acts of 1865,® and 1867,^ the Registrar is to ister the certificate at full length in its proper order, and numbeij like other instruments, and he is tp make, in a prescribed form, sign an entry in the margin of the register, wherein the mortga registered. 1 9 Vic. oh. 84, sec. 28 ; Con. SUt. U. C. oh. 8ft, mc 67. i 20 Vic. ch. 24, sec. 58. 5 Ont SUt. 81 Vic. ch. 20, sec. 60. 4 29 Vic. ch. 24, sec. 68 ; Ont. SUt. 31 Vic. ch. 20, sec. 60. 6 Con. SUt. U. C. fch. 89, sec. 68. 6 29 Viu. ch. 24, sec. 63. 7 Ont. SUt. 31 Vlo. ch. 90, sec. 60. JUM*>^'AV ■f i THE DUTY OF OoUNSEL. 1215 I To make the certificate effectual as a ^ocvtnveyance. it would ap- that all these requirements must be strictly complied with, for words of the statute are, " such certificate so registered shall be • valid and effectual in law as a release of such mortgage, and as a Dveyance to the mortgagor, his heirs, executors, administrators or giorns, or any person lawfully claiming by, through or under him t^em, of the original estate of the mortgagor."* , I ■ ' Although the executor c* administrator of a deceased mortgagee »y discharge a mortgage under the statute, which will have the ct of a reconveyance, he could not sell or assign the legal estate I the land prior to 19th of December, 1869.^ But by a recent Wute, the powers of executors and administrators as to dealing mortgages have been extended, and they can now execute as- lents " which shall be as effectual as if the same had been made rthe person having the legal estate."' I A discharge executed by one of several executors is not a valid charge, all should join. * A foreign administrator cannot give an dual discharge ; to do so he must first take out letters of ad- listration in this Province ^ fhen a deed is to have a peculiar operation, as that of a feoff- it, it should be first seen that the proper ceremonies have been plied with ; and if a deed cannot operate in the mode in which ig intended to operate, it should be seen whether it may not take feet in some other way. Thus a deed, which will be inoperative a grant, may take efiect as a bargain and sale, or a covenant to id seised, or vice versa. And a foeffment which is defective for, it of livery of seisin, may take effect as a grant of the reversion ^the premises ; and as in most titles there are outstanding terms years or occupation leases, most instruments, if they fail to take as the intended assurance, will operate by way of grant. I Any extraordinary occurrence in the abstract should always excite upicion as to the title. Where anything appears for which there [no apparent reason, every possible inquiry as to the title should jlCon. Stot. U. C. ch. 80, sec. 69 : 29 Vic. oh. 24, aec. 68 ; Ont. Stet. 81 Vlo. ch. 20, sec. 00. lltoMMon V. fiver*, 9 Grant, 572. I Ont. Stot. 32 Vic. ch. 10. This act repeals Con. Stat. U. C. ch. 87, sec. 6. ^ |ire/>Ao(Menv. fiaeon, 13 Grant, 691. But see Ont. Stat. 81 Vie. ch. 20, ncc. «2. ^ .>' -^ Vit Thnrpe, 16 Grant 76. ■ " * ' ' 1216 PR yff against the defendant's costs, and tl| surplus (if any) paid to him, was retused, with costs.^ In an actid to recover the deposit, no new objection can be taken to the titi which, if previously taken, might have been removed." Of the General Nature of the Title ivhich must be Produced. It will now be proper to consider the nature of the title whid must be produced ; and I shall first make some observations appi cable to its general nature ; shall next inquire into the time at whij it should commence ; and then give the particular rules applical to every ordinary species of title. A party who agrees to sell, mortgage, or charge his property, tually stipulates in law to make a good title ;^ and he geneit enters into an express agreement so to do. • ■- 1 ButUr'g Prac. 0b8. MSS. 2 BtUUr'a Prao. Obs. MSS. 3 DevereU v. Lord Bolton, 18 Yes. 616 ; 4 Lewis T. Lechuiere, 10 Mod. 506. 6 WUliaim v. Edwards, 2 Sim. 78. 6 Todd V. Hoggart, 1 Moo. & Mai. 128. 7 2 Sug. V. & P. 106, lOtb ed. 2 Sug. Vend & P. 17, lOtli ed. OENKHAI. NATURK (»F TITLK. J 210 ,u8t he Produced. I It is said that on a mortgage it in .sufKcient to produce a good Jding title, but that on a sale it will be necessary to show a mar- able title, but the distinction rests on very slight grounds, as the ne objection raay be nmde to a title in the one case as in the er, and in practice th«' former is examined- with e(iual strictness I the latter. A purchaser will not be compelled to take a doubtful title,^ nor I equitable title.^ The title should, in fact, be free from suspicion, * Iwill not be forced on a purchaser, either at law or in equity, if {canoaly acquire it by litigation and judicial decision;* and a I will not be directed to the judges as to the title, unless the baser be willing that it should be so directed.^ i. [A court of equity will not now, as formerly, decide whether a 1 is good or bad. It will merely pronounce whether it is such a He as the purchaser should accept, or a marketable title.® The dem rule, although it has frequently met with disapprobation, is r firmly estaV)lished.'^ It seems to have been first introduced by : Joseph Jekyll, M.R.,^ although Lord Eldon has said it com- iced in the ease of Shaplarul v. Smith.^ "■ |The distinction between an unmarketable title and a bad title i not, however, prevail at law ; for there every title which is not loved to be bad is considered marketable.^* |By a " marketable title " is meant such a title as the Court of ncery would force ujjon an unwilling purchaser." The settled of the Court of Chancery is not to compel a purchaser to Kpt a doubtful title. Upon the question what is a dcuuiful title bin the rule, each case must, of course, depend on its own cir- Uon V. Seott, 16 Ves. 272 ; JervoUe v. Diike of Northumberland, 1 3m. & W. 550 ; Sloper v. h, 2 Vea. & B. 145 : Marlow v. Smith, 2 P. W. 198 ; Price v. Strange, 6 Mad. 159 ; Pott v. , Turner, 4 M. & P. 661 : 2 Sug, V. & P. 166. fVfer T. Denne, 4 B. 0. C. 80 ; Trent v. Manning, 10 Ves. 500 ; ShefileM v. Lord MtUgrave, 2 Ves. 1 Jon. 626. IMxv. Strange, 6 Madd. 159; see also Elliott v. Pott, 3 Bli. 146 : Hartley v. Pehall, 1 Peske's I N.P.C 178. milt T. Kidd,& Ves. 647 ; 2 Svg. V. & P. 166. IjMwwrer v. Blim, 11 Ves. 268-466. \mSUniyUon v. Seott, 16 Ves. ?.72 ; Sloper v. Fish, 2 Ves..* B. 149 ; Briscoe v. Perkint, 1 Ves. k B. 4»3 ; JervoiM' v. Dit*« of tiorthumherland, 1 Jac. & Walk. 569-676 ; Priee v. Strange, 6 . Ihdd. 169. Ilwlow V. Smith. 2 P. W. 198 ; and see Sloper v. Fith, 2 V. & B. 149. I'>C.C.76; 1 J. &W.668. iMfUunt, 274 : see Boyman v. Outeh, 7 Bingr. 379. ym V. Waddingham, 10 Hare 8 ; Moulton v. Edi.tnndH, 1 D., F. & J. 246 ; Franein v. St. Oer- M«n, 6 Gnnt. 680. M / * '; I ^1 ?' '^ 1220 PROCEEDINGS IN THE MASTERS OFFICE. cumstances. The doubt, howev^', must be a grave and reaaoual doubt,^ moral, not mathematical, certainty, being required in ters of title, and remote possibilities, and mere matter of siispjciJ being disregarded.^ In a case at nisi jpriua? Lord Kenyon said, that it had solemnly adjudged, that if a party sells an estate without havij title, but, before he is called upon to make a conveyance, by a vate act of Parliament gets such an estate as will enable him| make a title, that that is sufficient ; and that when a plaintiiT able to make a title, and was never applied to by the defendant it, that he should not be allowed to set up against the plaintil] want of title, though the power of making that title was obtain after the action brought. But where a man contracted to grant I fUiother a lease to hold from a cei-tain day, and the intended les could show no title on that day, the purchaser was at law allo^ to rescind his contract, although no time for gi-anting the lease expressly fixed in the agreement.* A different rule, however, clearly prevails in a court of equiti for although the inclination of a court of equity is in favour o| vendee, and it insists upon the vendor furnishing an unexceptiona title,^ it is not necessary that he should have a perfect title at time of entering into the agreement ; for if he can perfect it befl the Master's report,® or even on the hearing of fui-ther directions,'] will be sufficient, although the doctrine will hardly be car further. ^ But where the title is not clear on the abstract at time of filing the bill, costs will not be given, although it has established before the Master,^ and the court, will not suspend contract with a view to future proceedings to perfect the title.'" the costs will be thrown upon the purchaser, though the Ma reports that a good title was not shown till after the filing of bill, if that finding proceeded on the ground that certain evide 1 Lincoln v. Arehdeekne, 1 Coll. 102. , S salary v. Waller, 12 Ves. 268 ; McQueen v. Farquhar, 11 Yes. 467 ; Warde v. Dixon, 28 L.J. Ch. 821 ; Cattell v. Cnrall, 5 Y. * C. Ex. 237. 8 Thomp$on v. Miles, 1 Esp. 184. 4 Roper v. Comnbea, 6 B. A; C. 584 ; » D. & R. .582 ; Bartlett v. Ttushin, 6 Taunt. 259, 8. C. 1 1 688. 5 Burroughs t Oakley, 3 Swanst. 169. e MorOock V. Builer, 10 Ves. 815 ; B ,iery v Orowcock, Madd. U ; Langford v. Pitt, 2 P. Wm 7 Paton V. Rogers, 6 Madd. 266. 8 I/ecAm«r«v. Brflwwr, 2 Jac. & W. 289. Reynolds v. Blake, 2 Sim. ft Stu. 117 ; Paton v. Rogers, uhi ttup. ; laxoin v. Ouest, 1 Buk. V. CoUiwie, 3 Ves. ft B. 148, n. 10 Bsdaile v. Stephenson, 6 Madd. & Oeld. 360. OKNKHAL NATURE OF TITLK. 1221 I not been previously fuiTiishel which the vendor had ottered to duce, but which had not been iictuaily produced before the insti- iioD of the suit, in consequence of the purchaser insisting upon «r and unsubstantial objections.* ■ i.> • JAn abstract, we have seen, will be complete in equity whenever jippears that, on certain acts done, the legal and the equitable lites will be in the purchaser.^ JThis rule, however, is properly confined to cases where the vendor, [persons who are trustees for Mm, can make a title; for if the currence of a stranger is necessary, and he is not bound to join, abstract cannot be deemed pciect until it shows that he has Iren perfection to the title. Thus, where it was necessary, in order Iperfecta title, that a recovery should be suffered for the purpose [barring an old estate tail, vestttd in a person who was not a Btee for the vendor, the deed making the tenant to the prcBcipe I the warrant for suffering the recovery were executed before the ; of the bill for specific performance, but the recovery was not npleted till a few days afterwards ; it was held that a good title inot shown before the commencement of the suit.* ^ |i distinction has been taken between questions of title, and I which are mere questions of conveyance ; the latter class will t be of a fatal nature, and cannot properly be entertained by the Thus judgments and annuities are not considered objections [the title, but to the conveyance ; * and although annuities and Br charges on the property are, in fact, of a much greater amount the value of the estate, this will not be an objection to the b, but a mere question of conveyance. * So, also, mortgages are lidered in the same light, as mere questions of conveyance.® od where an exception was taken to a Master's report in favor |i title, and it was urged that a good title could not be made in c[uence of a term attendant on the inheritance being outstand- which was vested in a lunatic, and that as no commission of li««y V. CoHiV*-, 4 RU88. 289. Ihy6roo*« v. Inskip, 8 Yes. 436; 10 Veis. 381 ; IJ. & W. 421 llwm T. Guent, 1 Ruas. 826. And see Esdaile v. Stephetumn, (i MHild. & Geld, 360. IfMy V. Walker, 1 Hadd. 199. See Lodge v. Ijyaely, 4 Sim. 70. lfMt0, 17 Ves. 478. LyddaX v. Wettun, i Atk.l lives. 467. •» » If. I 7 Dyke V. SylvetUr, 12 Ves. 126. Brueoe v. PerkiM, 1 Ves. & B. 498. Witwun v. Fm 8 Ves. 467 ; 2 Sxig. V. & P. 183. OKNKIIAI. .VATURK OK TITLE. 1223 ifeuants, it wjia held U> be an objeccioii, giving a right of compen- Kiou, as the purchaser did not insist further.* So, also, an act of iptcy will be an objection to a title, without shovnng a debt ion which a commission or fiat could issue.^ But the mere fact iitasuit has been suKsequently instituted, 'and is depending, in jiich pai t of the lands are claimed adversely to the vendor, is not a ficient reason lor reporting that a good title cannot be made.* The strict rule seems to be, that the vendor must procure the fee [k vested either in himself or a trustee for him, and that a pur- er is not comjiellable to bear the expense of a long conveyance, I account of the legal estate having been outstanding for a length |(time, or of the estate being subject to incumbrances which are to I paid off.* It is not, however, very usual to insist upon this^ iless the title can be perfected without a private act of parliament ; ^ which case the expense of obtaining it is always borne by the ndor.* I If a purchaser takes possession of an estate according to his cov- i, he does not thereby waive his right to a good title ; and a for specific performance, without a good title, will not be fonounced against him, although the property may have btsome «tly deteriorated in his hands,® The general rule, howevei-, is, I the circumstance of a purchaser taking possession, implies an proval of the title and a consequent waiver of the right to urge ctions to it.^ But if the vendor, subsequently to the entry of [purchaser, treat with him for a compromise of objections raised fhim to the title, he will not be bound by his entry into posses- [So, where an agreement for the purchase of an estate, the pur- er stipulated to pay the residue of the purchase-money on a «ified day, upon the vendor's making a good title ; or otherwise, JNich title should not then be completed ; upon his executing a iSumn V. Vauxirajf, 16 Ves. 880 ; but see Lyddal v. Wetton, 2 Atk. 10. PI««««v. Lush, 14 Ve8. 647. Franklin v. Lord Brovnlow, 14 \e«. ^50 POitaUMton V. Askew, 2 Ju. & W. 639, and 1 Ross. 160 : and Me 2 Sua. V. & P. 186. jheia 814.269. I%.V.&P387, 8thed. \mm V. Quppy, 8 Ruas. 171. ■hm«tt V. Brown, 1 Jac. ft W. 168. WUmm v. Chajhan, 1 Jac. & W. 39. Fleetwood v. Oretn, I U Vm. 694. Margravine o/Anmaeh v. Noel, 1 Madd. 810. Ibiem/t V. Roebuek, 1 Ves. Jim. SZl , and see Bw roughi v. Oakley, 8 Swanst. 169 ; Sabnon ▼. •ration, 4 J. a Moo. 7& Sug. V. & P. 10, 11. Morrie v. JTNeU, 2 Russ. 604. '1.* p k 5 Tl ■I # if- 1224 PllUCKEUINOS IN THE MASTKRS OFFICE. bond t<) complete hucIi title, and to convey the estate as soon aH tl same could be completed ; the vendor is bound to show a g(xxl tit and till a good title be shown, the purchaser, though he had enter into possession, is not bound to pay the purchase-money. > A m chaser who has not been in possession, is bound to pay interest the purchase -money, and take the rents and profits only from time when a good title is shown, and not from the time fixed by agreement for the completion of the purchase.'-^ A person who purchases two lots, is not justified in refusing perform his contract for the purchase of the second lot, because] good title is not shown to the tii-st lot.' Where a title is submitted to the opinion of the court, the pii chaser is bound ^by that opinion, and cannot object to take the til on the ground that the difficulty of the question on which it depei furnishes a sufficient objection to completing the purchase.* Of the commencement of Abstracts of Title. Every abstract of title to real property must, until very recent! have commenced, at the least, sixty years back, and no purcha could be compelled to take a title which commenced later, becau the Statute of Limitations could not in a shorter period confeij title. ^ This period was fixed from analogy to the 32 Hen. VIII. j 2, s. 1, limiting the term for bringing a writ of right. •* But by chap. 88, Con. Stat. U. C, one period of limitation] established for all lands and rents, it being enacted, that no per shall make any entry or distress, or bring an action to recover i land or rent, but within twenty years next after the time at wli the right to make such entry or distress, or to bring such actij shall hav^ first accrued to some person through whom he clain or if such right shall not have accrued to any pei*son through whj he claims then within twenty years next after the time at wh 1 Clarke v. Paxue, 3 Russ. 320. 2 Jone» V. Mudd. i Russ. 118. Motik v. IhukUson, 4 Ruw. 121, n. 3 Leurin v. Gueit, 1 Russ, 825. 4 Buahton v. Craven, 12 Pri. 699. „ 6 Paine v. MelUr, Ves. 361. 82 Hen. 8, c. 2. 21 Jae. 1, c. 16. And see Batiwell v. Utr\ Taunt. 4S0. 2 Svg. V. & P. 132. Fort v. Clarke, 1 Russ. «01. 6 See Thammn v. Miuiken, Grant. 869. (JOMMKNCKMENT OF AllSTIlAri'S uK TITI.K 1 225 fright to make such entry or diHtress, or to bring such action, hav<' first accrued to the person making or bringing the same. ons under the ilisabilities of infancy, hmacy, coverture, or ond seas, or their representatives, are allowed ten years from the kDination of their disability or death, but no entry, action, or shall be brought beyond forty years after the right of action lied. Under this statute which is taken from the Imp. Stat. 3 & |Win. IV,, ch. 27, it would seem that a forty years' title may be spted with safety where there is no circumstance in the abstract [lend to inquiries of an earlier date, or reason to believe that the took its root from a tenant for life, or from a person who aed under one.* Ilf a certificate of title or chancery dc'd has been -obtained under lAct for Quieting Titles,* the investigation hfi i only to be from '/;«ofsuch certificate or deed, the sanit. being made by the |l,' " conclusi ve at law and in equity, and it is declared that I title therein mentioned shall be deemed absolute and indcfeas- from the day of the date of the certificate, a^ legards Her ^esty and all persons whatever, subject only to any charges or ibmnces, exceptions or qualifications mentioned therein, or in schedule thereto." K no certificate or deed has ever been luned under the act, the investigation should go back to the grant. he grant itself, or an exemplification or certified copy, should be and not merely the memorandum thereof in the Registry »V^--; see BarihietU v. Bvt M Patents contained certain conditions which have since been Knsed with by the Public Land Act of 1860.^ which contains [following enactment — " With a view to remove doubts and to tthe titles to certain lands heretofore gi'anted, it is enacted Ithe non-obsLi'vance and non-fulfilment of the condition im- I in and by certain patents issued for public lands, of taking \H V. k p. 187. Cotlerell v. Watkins, 1 Beav. 3C1. ♦ |«e.ch. 26. ■ •' • ' ■' k». MfweedlngH under the Act for (^lietin^ Titles, it lias l>een tlie practice to dixpenne witli the pro- I wico of the original grant, or any certified copy of it, in two cases, viz., where the lot in ques- I ■■wu granted to the University of Toronto, or the Canada Company. In both cases it has IMianud on account of the great expense to accept a certificate from the Crown Land Depart- ■■■I ihowing that the particular lot was granted as all^j^ed. T*K ch. 8 sec 84. .0 122C PROCEEDINOS IN THE MASTER'S OFFICK. the oaths which may have boon lieretofore prescribed, in case ofau jubsequent sale, conveyance, enfeoffment or exchange, by tl patentee, or of recording such oaths, within twelve months afi having taken possession, in the office of the Secretary of d Province, or of performing certain settlement duties, shall not atfej in any way the patent or title of any patentee, or of any subsequej purchaser or proprietor." The title from the grantee of the Crown may depend on dee(j wills, inheritance, &;c. ; and if a perfect title is in this way establishe searches must be made as to crown debts. Sheriff's sales, executioij taxes, t^x sales, and the statutory liens of Mutual Insuran Companies, &c., before the title is accepted. ^ If it be possible, the abstract should commence with a purcha deed, will, or settlement, by which it appears that the person whom the title was derived was seised in fee. In some instances, it will certainly not be sufficient to m simply a title of forty years, but a title prior to that period mustj produced. Thus, if the abstract commence with a recovery deed, on other instrument relating to an estate tail, it will be proper to shd the creation of the estate tail which is barred by it ; although non-production of this evidence will not render the title invalid.' I Thus, a^so, if it commences with an appointment, the deed or creatuig the power must be shown, in order to prove the due exe tion thereof; but if the recital of the deed or will is full and sail factory, this, in default of other evidence, may be deemed ssA factory.^ If the property is derived from the grant of the crown, original grant should be shown, in order that it may be seen tl there is no remainder or reversion reserved by the crown, which! is to be remembered, could not, until very recently, be barred.' the vendor need not show the intermediate deeds, &ic., between i grant and the period at which, by the ordinary rules of practice,] evidence of his title should commence.* 1 Cotutmakwr v. Sewel, Sug. V. ft P. App. ; IfouaiUe v. Oreenumod, Turn. 26. i 1 PreKt. Aba. 7, 249. 8 S & 4 Wm. IV. oh. 64, sees. 15, 18 and 21. 4 1 Prett. AIM. 6, SO, 260. ■'^ COMMENCEMENT OF ABSTRACTS OF TITLE. 1227 Iftlje absti'act commence with a settlement, which is made in suance of articles, it is proper to call for the articles, that it may {Seen whether the settlement is in confonnity with them. ^ere an old deed recites prior deeds, an'm ^Hi 3" i I' ^ I 1228 l»llOCKKDINGS JN THK MASTERS OFFICK. In short, wherever an abstract does not commence with a dee or will, conveying or devising the premises to the original purcha or devisee, from whom the title originates, in fee, but refers to son prior circumstance or document, it will be proper to extend tij usual period of inquiry, because such reference will be notice to tB purchaser or mortgagee of the contents of the documents so refer to. * And in one case, where a will eighty years old was discover after the purchaser had accepted the title, and whereby the titj was supposed to be affected, it was referred to the Master to coi sider what effect this will would have upon the title; * is Sometimes the fir^t deed in the abstract is of a date falling with the required number of years, but the history of the title is tr through a period of that duration, by showing, either from tl recitals, or from a short history of the title in the description f the parcels, or from the assessments to the land tax, or from schedule of title-deeds, that the ownei-ship on which the title depenj commenced earlier than that period. And this, in general, is deepj satisfactory by conveyancers, especially after an inquiry for wilj settlements, &;c., as far as that inquiry can reasonably be pro^ cuted, or where the property is small. ^ . And these recitals may the more readily be depended upon, wh^ the lands were parcel of a large property, and the nature of transaction leads to the conclusion that the deeds remain in hands of the former proprietor, or were delivered to the purcha of a larger estate, or where the deeds themselves have been destroy by fire. * s . : i'.,,.^ -:\' ..l .bnii/vi L'-f/n ;»■.(■, w -, One great objection to the dependence on recitals, is, that external circumstances of execution and attestation seldom or e^ appear, so that these important facts are thus left unproved." 1 Moore v. Bennett, 2 Cha. Ca. 246. Ferrars v. Cherry, 2 Vem. 884. Merlins v. JoUift.Jsahl Taylor v. Stibbert, 2 Yes. Jun. 487. DanieU v. Davism 16 Yes. 249, 17 Yes. 433, S. C. AM Anthony, 1 Mer. 3^2. KnatcItbvMx. Gfrueber, 8 Mer. 187. 2 Const. V. Barr. 2 Mer. 57. .., 3 1 Prest. Abs. 20, 29. 262. Fort v. Clarke, 1 IIuhs. 601. Cottercll v. Watkins, 1 Be«v. 361. 4 1 Prest. Abs. 66. 6 See BryarU v. Btuk. 4 Ruhr. 1. COMMENCEMENT OF ABSTRACTS OF TITLE. 1229 Where title-deeds are produced of a more remote date than required period, and a defect appears in the title antecedent to j, although a good title could apparently be made from that period, [would seem that a purchaser would not be compelled to accept .me} Of Abstracts of Title of Freehold Property. It will now be proper to detail the particular rules relating to tracts of title of all the ordinary kinds of property ; and, first, J shall turn our atteution to abstracts of title of freeholds. And i may be divided into — - , , ' I. ' .' , ■.,.■. I. Titles under tenants in fee. \ ■ ^ . i II. Titles under tenants in tail. '■ - ■ ' : ' ' III. Titles under tenants for life. IV. Titles under tenants pur autre vie. V. Titles under remainder-men and reversioners : and VI. Titles under tenants of cross remainders. 1. Titles under Tenants in Fee. [Estates in fee are either — 1. Estates in fee simple ; or 2. Base, ilified, or conditional fees. ^ Where a qualification is annexed I fee, it is base, or qualified ; where a condition is annexed, it is ditional. |1. A tenant in fee simple may grant any less estate, or charge •estate in any manner he thinks fit, or annex to it any conditions jpleases, so as such conditions be not repugnant to the rules of ,and in particular the law against perpetuities. ^ YsPnmrv. Wattt, fi Mtidd. 69. |'liwL667. V>K. % Tit. EaUte CO. 2.) ; Dm d, Vwighan v. Meyler, 2 M. & S. 276. Co. LItt. 1 b. ( I . ; I P i'W 1230 PROCEEDINGS IN THE MASTERS OFFICE. 2. A tenant of a base, or determinable, or conditional fee, wij have equal powers over his estate, to a tenant of an absolute f© simple, with the exception, that while the estate continues deteJ minable, an estate derived out of this determinable estate will subject to the same determination, according to the maxim, sante statu primitivo, ceasat atque derivaticus. But when estate shall become indetorminable, the derivative estate will come absolute.^ Power is given by the Imperial Statute, 3 &; 4 -Wm. IV. 74, s. 19, where an estate tail has been converted into a base fee, i enlarge such base fee into a fee simple, saving always the rights i all persons in respect of estates prior to the estate tail, which h^ been converted into a base fee, and the rights of all other persoij except those against whom such disposition is authorised to made. And by section 39, base fees, when united with the irain diate reversion, shall be enlarged instead of being mergeu. 2. Titles of Tenants in Tail. AU alienations and all charges by a tenant in tail will be , against himself, to the extent of his estate and interjsst ; and if | afterwards acquire the fee simple, they will be as good as if he w« seised in fee simple.^ It is to be observed, that a material cha has been made as to the power of a tenant in tail, by the act the abolition of fines and recoveries,' and the substitution of a de to be enrolled in Chancery in their place. » • A grant or lease will bind the issue in tail, until avoided by thj entry or action.* Where a discontinuance is effected, the estate of the tenant] tail, and of those who had the reversion or remainder, will turned into a right of action ; and while the discontinuance rema in force, the new estate will subsist, until avoided by the action the issue in tail, or of the persons in remainder or reversion.' 1 1 Prett. AbB. 378. 2 1 Pre$t. Abs. 880. 1 Saund. 260. n. (1) , 3 3 & 4 Wm. IV. c. 74. 4 A«t>itf« V. /itWM, 7 T. R. 27U. 6 1 Preut. Aba. 882. ' , \ ^^ TITLES OF TENANTS IN TAIL. 1231 U feoffment, a line, a release, or a confirmation with warranty by Itenant in tail, will create a discontinuance ; but if a fine were (led with proclamations, it barred the issue.^ This assurance is abolished.^ ., . ' y . |i lease and release, bargain and sale, or covenant to stand seised, not create a discontinuance ; and the estate created by these mces may be avoided by the simple entry of the issue, or ons in remainder or reversion.^ li partial discontinuance may be created by a lease for the life of I grantee, with livery of seisin, which may be enlarged by a grant [the new reversion created by the lease and livery ; but unless it |so enlarged, it will cease on the determination of the estate con- ned by the lease.* |i lease and release and fine, as parts of the same assurance, iked a discontinuance by reason of the fine ; but if a lease and were first executed, and a base fee were thereby created by btful conveyance, a fine with proclamations, levied subsequently [the releasor to the tenant of the base fee for further assurance lid not create a discontinuance of the remainder, because the ^ of the remainder was not divested by the fii-st assurance ; and ne by a tenant in tail, not seised by the force of the entail lid not create a discontinuance.^ recovery operated rather as a conveyance than as a discon- ance, and enlarged the estate tail into a fee-simple. * lis quite clear that a tenant in tail can now, and could before I recent act/ convey, even by bargain and sale, or lease and pe, an estate of inheritance, which will continue as long as the tail shall continue, or till it shall be avoided by those who ! a right to avoid the same. ^ ./Kij.tlt. Est B. 24,26. f|««T. Clarke, 2 Salk. 619 S. C. 2 Ld. Raym. 778 , Vm. Abg. 875. 8 Prett. Aba. 220. p Utt m, b. Doe d. Jones v. Joneg, 1 B. & &. 238. I've*. Ate. 881. |»*Wm.iv, c. 74. ttr-i case, 10 Co. «5. Maehil v. Clarke, 2 M. •i. ««0. LUt. 88. 612, 613, 660. and .see Ooodright v. Mead S Burr. 1703. Raym. 78e. Contra, Took v. Olatteoek, 1 ww^ IP :5 ?' 1232 PROCEEDINQS IN THE MASTER'S OFFICE. An alienation by a tenant in tail, although originally avoidal: may eventually become absolute, either against his issue, or accot ing to the nature of the assurance against those in remainderl reversion. Thus if a tenant in tail granted to another any estil or interest, and afterwards levied a fine with proclamations estate granted became good as against his issue ; and if he suffer a common recovery, it became good against those in remainder reversion.^ The same rule wouM apply to an .'issuranoe under t| recent statute.''^ It must be remembered, however, that a tenant in tail can on acquire an absolute fee-simple, where his estate is derived out fee-simple ; for where it is derived out of a base or determinal fee, he could only, before the recent act,** by means of a fine j recovery, extend his estate tail to the duration of that base! determinable fee,* and that act has not added to his powers in respect. ■■ . ".' '' ■ ■ • ' ' > i ;.■:■ >*-.o .' m ■y*- ■■:>.' .t : '-.•;< U A recoveiy suffered by tenant in tail did not bar any le charges, or encumbrances affecting the estate granted by the teui in tail himself^ But it barred all conditions and collateral limi tions annexed to the estate tail, and aU charges which partool the nature of collateral limitations, and also all charges derived of the reversion or remainder.^ I I I J: .1 *A tenant in tail by gift of the crown for public serv could not bar the entail by fine or recovery, even as against his issue, while a remainder or reveraion subsisted in the crown f has he any greater power in this i'^stj ^r;! by virtue of the recent act.^ ' >'< .i!f. A tenant in tail might, before this ac«, Imve devised his estat charitable purposes, without fine or recovery.* 1 See 1 Saund. 260, n . (I). 2 3 & 4 Wm. IV. c. 74. ^^ 5 3*4Wm. IV. c. 74. - . 4 1 Prest. Abs. 893. , i "- >/ .. 6 B^mmTliils^. i'mJkI. 108. Pagsv. Haywanl, 2 Salk. 570. Driver v. Kfj/ar, Co»^ Quttiver v. A»hby, 4 Burr. 1929. 7 Co. Litt. 872, b. ; 34 & 35 Hen. VHl. c. 20. fl S & 4 Wm. IV. c. 74, 8. 18 9 43 Ellz. c. 4. Prec. Cha. 390. Atty.Gen. v. Rye, 2 Vcni. 463. TITLES UNDER TENANTS FOR LIFE. 1233 My avoidaV Hue, ov accoi I remainder] ler any esti ilamations, I if he suffer n. remainder Etnoc under tl in tail can on derived out or determina ms of a fine! of that base] lis powers in t bar any le ^d by the teni collateral lim^ svrhich pai-tooli arges derived >r public servi .7 as agains the crown irtue of the vised his estate By this act, s. 38, it is enacted, that a voidable estate by a [lant in tail in favour of a purchaser for valuable conaideration, liall be confirmed by a subsequent disposition of such tenant in il, but not against a purchaser without notice. III. Titles Under Tenants for Life. [Tenants for life are either made so by express grant or devise, and |ld either for their own lives or jnur autre vie, or are so by the leration of the law, as tenants by the curtesy, or in dower. A nt in tail, after the possibility of issue extinct, is also, for all (purposes of alienation only a tenant for life.^ |A tenant for life may transfer his estate, or he may create an iJer-lease to be derived out of his estate ; but all the estates lich he gi'ants, unless through the intervention of a power, will lermine when his estate shall have filled the measure of its dura- li ■ - ^her the surrender nor merger of an estate for life, will have [effect to defeat or determine any under-leases granted, or charges by the tenant for life prior to the merger or surrender. Nor la forfeiture by tenant for life by tortious alienation or other- involve or prejudice the interests of his tenants, or those who J charges under him.* ates for life may be encumbered by judgments, in like maimer ates in fee-simple, with the difference only which arises from lextent of the several estates. The same inquiries as to these must therefore be made.* tere there was a devise to A. and her heirs, but if she die, leav- sue, then to such issue and their heirs, the husband is not en- i to be a tenant by the curtesy ; for the children take by pur- 1 and not by descent.^ )riBi' r V. ed!iar,Co* kSi4Wm. IV. c. 74, s. 18. '. Abs. 427. . Abs. 429. • 'ntt. Abs. 446. *»rv. Barker, 2 Sim. 249 ; and see Summer v. Partridge, 2 Atk. 47. 54 % 1234 PROOEEDINOS IN THE MASTER'S OFFICE. Prior to tne 11th of May, 1839, it was nocessary ^ to render a of dower by the grantor's wife effectual, that she should Ik) exa ned touching her consent to bar her dower, and that a certificate I such examination should be endoi-sed upon the deed. Since the 11th May, 1839, a wife joining with her husbajid ii deed or conveyance containing a release of dower is sufficient wij out any examination or acknowledgment.^ But when a woi bars her dower by a deed to which her husband is not a party, is still necessary for her to be examined, anUt in question, and that there was only a contingency or possibility that it might come back let jnntor. It may, however, be menuoned, that many of the opinions of this learned person Ft be regarded aa law at the present day. I* Myht. 1 Fox ft Smith. 1. vkr. Hutehiruon, 7 Bing. 178. 1/ P 123S PUO(!EEDINGH IN TIIK MA8TER*H OFFICE. V. 7%tle under Remainder-men and ReverirUnfU'rH. A rcvcreion is a vested interest, and the pei-son untitled unde] has an immediate fixed right of future enjoyment, which may aliened or changed as an estate in possession.^ If a man conveys land in the possession of himself and anut the deed will operate by way of grant as to the lauds in the session of the other, and will be a good conveyance of tho rover of that part,'^ but evidence of the existence of the reversiou m| be given.' If the reversion or remainder is expectant on a lease which made sixty or even one hundred years ago, the evidence of the should be deduced from the lessor, because the possession of I tenant is the possession of the reversioner, if rent has been receij at any time during that period.* A reversion expectant on an estate for years is present assel a reversion on an estate for life, is quasi assets ;* a reversion exj tant on an estate tail, is also assets, although of course of value.' • 1 : ' •• A reversion expectant on an estate tail is also liable to the jtj ments, statutes, or recognizances of all those who were at any i entitled to it, whenever such reversion comes into possession ;' also liable to the leases made by all those who were at any time titled to it, and to all the covenants contained in the leases, w| ever it comes in possession.® . - * \ ' It seems now settled that a reversion after an estate tail, considered as assets, may be sold for the payment of debts." This peculiarity attends the purchase of reversionary inter that inadequacy of consideration will vitiate the sale.*^ The i 1 See LUt. a. 668. 2 Doe d. Were v. Cole. 7 B. & C. 248. 3 Doe d. Keamav. Sherlock, 2 Fox & Smith, 78. -^ 4 1 Preat. Abs. 264. 6 Smith T. Angel, 8 Salk. 864. S. C. 2 Lord. Raym. 883. Lutw. 608. 6 AnonJyy. 373. b. pi. 14. 7 1 RoU. Abr. 209. Kelloie v. Roieden, 3 Hod. 263. 8 Qiffard v. Barber, cit. 1 Ves. 174. 9 Symonde v. Ctutmore, 4 Mod. 1 ; Shelbume v. BiddtUph, 6 Bro. P. C. 356. 10 Tyndale v. Warre, 1 Jm. 212. 11 Ooicland v. De Paria, 17 Vei. 20 ; Eyle v. Broume, 18 PrL 768. vertnoTwrtf. TITLK UNDER RKMAINDKIl-MKN AND IIKVKRSIONKUS. I 'I'M) will, however, Ihj conHidered a lair criterion of tlu; value. ' kl althou)^h it has been Haid, that iinleHs the ' iidor of the rovor- ry interest is an exjiectant heir, mere inadecjuaey of price will ; vitiate the transaction ;'■* yet the hetter opinion seems to be, the rule that the purchaser of a reversion must prove that he ivethe proper price, has so long been considered as settled that it not now lie altered.^ And altliough the bargain include property iptssession, yet if the bulk of the property is reversionary, the lie ctjntract will be set aside.* It is clear that the sale of a re- sionary interest by public auction will be unimpeachable.^ VI. Titles iiTider Tenwnts of Cross Remainders. I Where cross remainders are created, the title should be considered itely, as applying to the different farms, or the different partg same farm, which are subject to the cross remainders. Thus I form called Blackacre be devised to A. in tail, and a farm called hiteacre be devised to B. in tail, and if either of them die without ne of his body, then both the farms are devised to the other in or in fee, these are cross remainders ; and the title to the farm ckacre should be considered distinctly, as if it stood limited to [in tail, remainder to B. in tail, and the title to the other farm lid be considered as if it stood limited to B. in tail, remainder to I in tail. So if lands be limited to several persons in tail, with remainders between them in tail, the title should be considered I a view to each aliquot part, exactly as if that part stood limi- A. in tail, remainder to B. in tail, remainder to C. in tail, fcc.** |Cro88 remainders cannot be raised by implication in a deed, al- gh it be evident that the probable intention of the parties was t there should be cross remainders ; but cross remainders will be lied in a will.' ^. ,,, ,, , ,.,. I'?!?^J- '*<"'**»■. 1 MoClell. & Yo. 82 ; Scott v. Dunbar, 1 Molloy, 468 ; Pottt v. CurlU I You. IiTL' ^<«"<"* V. HhM, .5 Sim. 511 ; Wardle v. Carter, 7 Sim. 490. 1 Sua. V. & P. 448. IJeSWfey V. Sa$h, 3 Madd. 232 ; Vhalley v. Whalley, 3 Bli. 1. I«i«et»ma» V. Smith, 3 Russ. 433 ; Bawtree v. Watgon, 3 Myl. & K. 339 \m Portmore v. Taylor, 4 Sim. 182. lf*W V. Nanh, 3 Madd. 232 ; see Fox v. Wright, 6 Madd. 111. l-fwit Abs. 109. I eS^^*S?^J ^ ?""• ^^'- !?/«= ^n'" ''• ^.fj^^lfofon, 1 Vent. 224 ; Twitden v. Locke, Ambl. 663 ; ' KT^^ "^J*'"' ^'°- •'»<'■ «56 ; Dof V. Wamwright, 5 T. B. 427 ; Doe v. Dorvell 5 T R 618 • vtW"''^^^' */"*• flf.' *«!/'if*^ ^- Whithaw, 2 B. & A. 810 ; Leven v. Weathiratt', 1 Brod! » B. 401 : Edtrardx v. A IbUon, i Russ. 78. St I:: '«» 5 1240 PROCEEDINGS IN THE MASTER'S OFFICE. Of Abstracts of Title of Leaseholds and Chattels Real. Tersonal |3roperty in a former perit»d of our juriaprudence, wi accounted of very trifling importance, and the laws relating therel were few and ill-defined ; but subsequent events have render^ personal property nearly as important as real property, and it no] almost equally divides the attention of the courts. Personi })roperty consists of chattels real and chattels personal. Chattel real partake of the nature of real property ; and of thir kind are terms for years in land or real property, annuities charged on lanJ statutes merchant, kc} Chattels personal ai-e moveable thin^ such as money, stock in trade, furniture, jewels, &c.^ An interest in land, bounded by a particular event which m happen within a given number of years, is also a chattel rea Thus a devise to trustees or executors, " for payment of the testd tor's debts, and until his debts be paid," confers only a ehntt interest, and will go to the executor of the surviving trustee executor, if the debts are not discharged in his lifetime.^ We shall first consider the rules respecting the titles of chattej real ; and this may be properly divided into — I. Titles leaseholds. II. Titles of terms of years in gross. III. Titles attendant terms. IV. Titles under tenants from year to year, /. — Titles of Leaseholds. Titles to leasehold property should commence with the origiuj lease, and all subsequent assignments should be abstractbu;* thoy should also contain statements of all the circumstances ai facts incident and relative to the property. In considering titles of leaseholds, it will be proper to see that tl lessor has good right to lease, that the lessee is of capacity receive the lease, the deduction of the title under the term, tl 1 Co. Litt 43 b. 2 2 Bla. Com. 385. 3 Co. Litt 42 a. ; Doe v. Simpson, 5 East, 162. 4 1 Pre$t. Abu. 12. TITLES OF LEASEHOLDS. 1241 llesciiptiou of the parcels, and the words of limitation in the All leases, except those of an infant, will be valid at common law, Ijthough no rent is reserved.^ Freehold estates for lives, in lands of the legal estate, must, how- iver created, be transferred by feoffment and livery of seisin, or by «e and release, or some other similar assurance ; but estates in uds under terms for years may be transferred by mere writing, |icept they confer a title to the reversion and services ; and under circumstances there must, it is apprehended, be a grant or nment by deed.^ I When a term of years is in two joint tenants, an assurance by i of them will not pass more than his moiety or share ; but one llseveral executors or administrators may assign the entirety of i lands, or demise them foi* all or any part of the term ; * and an ament purporting to be from several executors, and executed tone only, will be effectual for the entirety.^ |lt must also carefully be seen that there exists under the lease b duration of interest which is professed to be granted, and that p interest is only determinable at the time and in the manner fid upon by the parties, and that only the specified rent id able. |fhere the lease is made in consideration of the surrender of a m lease, the reference made to such lease leads to the necessity [investigating the title of the lessor to such lease, and the mesne jigDments, as any encumbrance upon them would attach on the 'leafjt." And it will be proper to see that the surrender was «rly made ; and if in pursuance of any statute, that its provi- 1 have been complied with. ^ . it must also be seen that the leases have been uniforuily granted |4e persons who had the former interest. If they have not, and |jw(.Abs. 10. .,i . V. ,:;.'-k'> '« ... .,' .M. • M,"^ ■,^""' iMAbg. 19. ■ • , ,., ' ,' . .„ lljKrt. Abs. 20. ■ ■ fW. Shep. Touch. 484, IjrWt Abs. 22. " l< '^" ! 1 Pw«t. Ab8. 16. 3 1 Pre»t. Aba. 16. «3MLe« V. Vernon, C B. P. C. 10 ; Watton v. Master, &c., of Hemntiortk Hotpital, 14 Ves. 324. .^ Tf "•«''"■' 124() PROCKEDrNOS IN THK MASTKHS OKFICK. An executory Intoivst. in leasoholtls is tmnsnussiblo to c'X(!Cuto)> or administrators, an* '" '• ' There is some little confusion in tlie cases as to what will oonstij tute an under-lease, and what an assignment. It is generally laid down, that tlie power pf distn^sa is incident to tlie reversion ;' and it has thoretbro been held, that a lessee for years who assigns his term reserving rent, cannot distrain for the i-ent.'-^ Whore he grants hiJ whole interest, it is generally cal!e% ^.-v^ 2 S«e Hays v. Bailey, 8 Suj;. V. & P. 4. As to the rule tor the asaiipiment of terms, Rce 3 Sug. v. P. 1-18 3 SaeRex v. Aldborough, 1 East, 693 „, , 4 Litt. 8. 240 ; Co. Litt. 67 a. ; Sweeper v. JtandcU, Cro. Elit 156 ; MotsY. Gailimore, Doug. 266,. TITLE OF TENANTS FROM YEAR TO YEAR. 1251 mined, and that in case of a lease, adverse possession, which was to bar the reversioner, did not commence until the expiration of the term, although the rent was received adversely. This rule is, how- ever, altered by Imp. Stat. 3 & 4 Wm. IV. c. 27, by which (s 7) it is enacted, that in the case of a tenant at will the right shall he deemed to have accrued at the end of one year next after the com- mencement of the tenancy, and (s. 8,) that no person, after a tenancy from year to year, shall have any right, but from the end of the first year, or last payment of rent, but (by s. 9) that where rent amounting to twenty shillings, reserved by a lease in writing, shall 1 have been wrongfuUy received, no right shall accrue on the deter- I mination of the lease. Of the evidence by which Abstracts of Title should be supported. Having now discussed the principal rules relating to the prepara- tion and examination of abstracts of title, and mentioned the most 1 usual defects which occur in them, it will be proper to consider the evidence by which they must be supported ; for it is obvious that however valid or complete a title may be in reality, yet, if the proof of this be defective, it will be greatly deteriorated in value, I ud, in fact, unmarketable. It will always be necessary, therefore, to see that an abstract is [supported by the proper evidence of the various documents and facts which it contains or refers to, or which are necessary to its validity. A title must be such as may be successfully defended in a court of Ijustice ; and the rules of evidence there adopted must be strictly |re8orted to, in order that the proper proofs of the title may be at all at the command of the purchaser. And although a purchaser be well satisfied of the truth of the matter to be proved, he Ishould always insist on the proper evidence of them, because a sub- Isequent purchaser may demand that they should he proved ; and Ithis is the more necessaiy, as, after once completing his purchase, he |iui seldom demand further evidence from the vendor. » This principle has been discussed in a case in which the cumstances were as follows ; — The partners in a banking-house iving agreed to take a new partner into the firm, made aiTange- «nts for liquidating their debts, and indemnifying the incoming P 1252 PROCEEDINOS IN THE MASTERS OFFICE. partner; and one of the old partners, Nathaniel Middleton, in pursu- ance of this arrangement, conveye ■ n^* ' • i :' r ; 1 See Bmery v. Orotecock, Madd. 57. • i Doe d. Tijndale v. Heining, 6 B. & C. 28 ; 9 Dow. & Ry. 15 ; Pearce v. Hooper, 3 Taunt. 60 ; Gordon v. Seeretan, 8 East, 549 ; Orr v. Moriee, 6 J. B. Moo. 347 ; 3 Brod. & B. 139 ; but see Jaekson v. Allen, S Stark. 74 ; in which case plaintiff's counsel having called for a deed which was not produced, and having then proved that it «ns in defendant's possession and the usual notice to produce, then offered to prove a true oopj* of it. Defendant s counsel then produced the original deed, and insisted it must be proved by the attesting witness, and objected to the reading of the copy; but Abbot, C. J., held that the defendant, having t-tken the chance that plaintiffs would be unable to prove an examined copy, could not object to che reading of it, and the copy was accordingly read. See also Vaeher v. Cooks, 1 B. & Ad. 145 ; bat see Brady v. WaUt, 17 Grant, 699. .lit^ P 5 1254 PROCEEDINGS IN THE MASTERS OFFICE. A deed thirty years old proves itself, and it is not necessary to call any attesting witnesses to prove it ; and when other documents of equal antiquity are produced from the proper custody, no proof I of handwriting is required.^ But if a deed he dated at a later period than thirty years back, it must be proved before it can be given in j evidence, and for this purpose the subscribing witness must be pro- j duced ; and if there be two or more subscribing witnesses, one will, in ordinary cases, be sufficient to prove the execution. If there be | a subscribing witness, a stranger cannot give or add his attestation. If the witnesses be dead, all their deaths and handwriting must bej proved ; and the authenticity of their signatures proves the circum- stances of the execution which they profess to attest. When the witness is abroad, it is usual, and seems necessary, to prove the handwriting of the grantor as well as the witness; and this is ex- pressly required by the statute 26 Geo. III.^ as to deeds executed inj the East Indies, where the deeds are proved without calhng thej witnesses,^ , :/,- j', :,U'';1. '-■f-' ■!(;■ VUtj^' Where an attesting witness to a deed, on being i :s*-|>(riV'-.;r?,ai:'t-; ■:.:; •■■<;'.«!•[ |, The execution of a power of attorney executed abroad, can onlj be verified in a court of law by the affidavit of the subscribing wit-| ness ; the certificate of a notary public, therefore, and the attestation 1 Wynne v. Tyrwhitt, 6 B. & A. 376. Doe Ma^klem v. Turnbuil 5 Q. B. U. C. 129. Bf ffijl gim, 19 Grant, 303, r nd Moffat v. B. U. C. 6 Grant, 874. 2 Ch. 67, sec. 88. 8 3 Prest. Abs. 73, 74; Peake, Ev. 66. >^a i Pedler v. Paige, 1 Moo. h R. 368. ORDINARY CONTENTS OF AN ABSTRACT. 1255 U. C. 129. * Big] of the Vice-Consul of the place to the notary's handwriting, which was also sworn to, is not sufficient proof of the due execution of the I instrument.^ A lease for a year is useless in the conveyance of freehold pro- Iperty in many of the colonies. Thus, in Jamaica, Antigua, St. Vin- cent, Upper Canada, and New Brunswick, various acts of the local legislatures have enacted that deeds duly registered, whether exe- cuted there or elsewhere, shall have the operation of conveyances, ffithout livery of seisin, a lease for a year, or any other ceremony. [And the same law pievails in Dominica, if the deed be made in the nd ; but in the other colonies, where the English laws are ad- I ministered, a lease for a year seems still to be necessary. In Ireland, the recital of a lease for a year in the deed of release, I is sufficient evidence of the lease, and therefore, no lease for a year is prepared f but the recital must be sufficient. Thus, where the deed of release merely contained the words, " in his (the releasee's) actual possession, being by virtue of a lease made pursuant to the statute," this was held to be an insufficient recital of the lease within lthe9Geo. II. c. 5, s. 16.* ' i WUls and Letters of Administration. — In England, ecclesiastical I courts have exclusive authority in deciding on the validity of wills of personalty, and in granting letters of administration ;* and their sen- tences upon these matters are conclusive evidence of the right tliereby determined ; but they will not strictly be evidence of any collateral matter which may be collected or inferred from the sen- tence.* Therefore, letters of administration which have been granted to a person as administrator of the effects of A. B., deceased, are not proof of A. B.'s death,* although it Reems probates are considered in I practice as evidence of the facts they state.^ K the title is derived under a will, the probate, or a copy |8taror)ed with the seal of the Surrogate Court,* is ordinarily suffi- 1 & poKo Church, 1 Dow. & Ry. 324! but see Oarvey v. Hibbert, 1 Jac. & W. 180. ! Ir. ut 9 Geo. H. ch. 6, aec. 16 ; Ir. act 1 Geo. UI. ch. 3. > Doe d. Saunder$, 1 Fox & Smith, 18. 4 Dike V. Polhm, 1 Lord Raym. 744. Noel v. WeUa. 2 Keb. 887 ; 1 Lev. 28£ ; 1 Lord Raym. 862 ; ST. R. 180. i Kaekhan's case, 1 Balk, 290 ; Thompion v. Dtmaldton, 8 Esp. N. P. C. 68 ; and oaaes in n. (o) i Tkmpion y. DcftaUUon, ubitup. * J 1 Pmt. AbB. 187. ■ * ■' ' • > ' ' • Con. But. U. C. 0. 16, «. 8, 61. p 12oG PROCEEDINGS IN THE MASTERS OFFICE. cieat proof of the will as between vendor and purchaser } and d purchaser's solicitor may, as in the case of a deed, presume dij execution according to the purport of a will, , . , He will observe, whether it purports to have been executed the presence of two witnesses, and whether the attestation clau^ states that they subscribed in the presence of each other.^ If does not, an affidavit by one of the subscribing witnesses or son other person who saw the will signed, testifying the actual fact, m^ be called for.' It must be remembered that a will proves itsd thirty years from its date, and not from the death of the testator.) The Court of Common Pleas has, however, decided^ hat it is n(j necessary that the witnesses should subscribe in the presence of ea other ; their subscribing in the presence of the testator is sufficien though they do not subscribe in the presence of each other. In the case referred to, the Court held that the statute whid says, " It shall be sufficient if such witnesses subscribe their namJ in presence of each other, although their names may not be subscril ed in presence of the testator ;"^ does not repeal the clause in tlj Statute of Frauds relating to wiUs,' but merely extends it, and tha therefore, a will subscribed by the witnesses in accordance with t^ provisions of either Act, is sufficiently attested. In delivering judgment A. Wilson, J., said," The statute of Charles h j not, in express terms, been repealed as to wills ; and, so far as it hi not been repealed by enactments inconsistent with its maintenanj in part or in whole, there is no reason why it may not be conside ed as stiU an active law here. Now, under that statute it was] positive direction that the witnesses should subscribe and attest i will in the presence of the devisor, (Otherwise the will should utterly void and of none effect. " -J n .., I-. V ■ 1 j > ' " There is nothing inconsistent in ouramended law and this provisij subsisting together: on the contrary, it rather seems that tl ICov. Con. Ev. 91,92. 8 Con. Stat. U. C ch. 82, sec. 18 8 Cov. Con. Ev. 9i, 97. 4 Mann v. Rickets, 7 Beav. 98. 6 Crai^ord v. Curraah. 16 C. P. U. C. 66. 6 Con. bw-<^t. U. C. ch. 82, sec. 18. 7 29 Car. 8, ch. 3, sec. B. ■ rv';''\ '^ ORDINARY CONTENTS OF AN AbSTRACT. 1257 islature intended that this part of the old law should yet con- Bue to be the law ; leaving it, however, to the devisor to pursue ither the new law or the old law, according to circumstances or his convenience — that is either to see the witnesses subscribe the ill, or if he did not, that they should see each other subscribe it, d, therefore, we are of opinion that, under the provision, ' It shall [sufficient if such witnesses subscribe their names in presence of ich other, although their names may not he subscribed in the pre- ^we of the testator' the law of this province does not prevent a 1 being still subscribed by the witnesses in the presence of the l^visor, as it might have been before the passing of the late , under the statute of Charles ; and that the new provision has ended the old law by making it suffi/iient if the witnesses see each ier subscribe the will, although the devisor may not have seen Km. "We are of opinion, then, that although the will was not sub- by the witnesses in the presence of each other, it was not, ivertheless, void for that reason, but that a subscription by them ithe presence of the devisor was, if it be established, a sufficient Biiption according to our law," [If the testator was a marksman, the attestation should state that i will was read over and explained to him, and if the attestation [alent as to this, the pm-chaser may require proof from one of the Itaesses, or some other person present, that the will was read over 1 explained.^ ■ IS.-C J i- 'Ii^Ia; ./•. •J.C.I Uj;^...' nl' M.t..;.>.--;.v.: -•4ll..V«'' \y !,-».1 "*!,! [Where the will has not been proved, the vendor must produce the Ipnal, if it happens to be in his possession.^ If the will relates |real estote only, and has been neither proved nor registered, or if bting to personal estate also, it has not been proved, inquiry Bold always be made as to the reason for this omission. The will j»y have been revoked by the testator, and the inquiry may lead [ilie discovery of this. ,.V- -"Vn .v.. .<-:). .!•<< fv.v |Id England, a purchaser from a devisee was, under circumstances, I in one case to be entitled to require the devisee, as a condition Con. Ev. 96. I. V. & P. 414. •« :u'- i,{ > 'W ' W: P 1258 PROCEEDINGS IN THE MASTER'h OFFKJK. of specific performance against the purchaser, to establish the against the heir, though the general rule is otherwise.^ In anolj case of a purchaser of real estate, the vendor was required to pp a codicil in the Ecclesiastical Court. ., ,, i(('j'< Where a will has been executed, it must be produced befoij purchaser can be compelled to accept the title,^ although hav been treated as a nullity by a professional man, it has been inislj and the vendor being heir, has rested upon his title as heir.^ The exact teims of the devise through which the vendor cL and the effect of the words used, must be carefullj'^ considereij difficulties of construction often arise. The general rule as to the admissibility of parol evidence in | construction of wills is, that if there be a latent ^.mbiguity by extrinsic circumstances, it may be explained by the same me but if the ambiguity be patent, that is, arising on the face of| will itself, all reference to matters dehors the instrument is, i general rule, strictly forbidden.* In the case of will executed by persons dying before the first J of January, 1869, the will was construed as speaking from the i of its execution, and property acquired by the testator after! date of the will, did not pass under the will. If, however, in I case of any person dying after the 6th day of March, 1834, the [ contains " a devise^ in any form of words of all such real estalj the testator shall die seised or possessed of, or of any part or portion thereof, such will shall be valid and effectual to pass j land that may have been or may be acquired by the devisor i the making of such will, in the same manner as if the title th^ had been acquired before the making thereof." In the case of Whateley v. Whateley,^ where the words o^ will were, " I give all my real and personal estate to my execj and trustees for the purposes of this my will," Mowat, Y.C, i t**rf » »J "Ji J,V\** '5^*,-l . ;j'ri( f n.^,a.■ • ,«.«''fi!roved against the heir, the gcnei-al of equity is, thpt all the witnesses to it must be examined,* lept where a witness is dcad,-^ insane," not to be found, or abroad/ [perhaps where the will is not wholly but only partially in (pu^s- D,' or where all tlu; witnesses falsely deny their attestation,* or [attestation is admitted by the heir-at-law.'*' But in all these s, however, except the last, the handwriting of the witness must [proved. And where the testator had been dead for twenty-five and two of the attesting witnesses proved the execution of ^will, and the handwriting of the third attesting witness, and witness was described as a servant of A., and upon inquiries made of a nephew of A., who had succeeded to the property lihat gentleman, the answer was, that nothing had been heard of i witness for a great numljer of years, but no inquiry had been |ie of the family of the witness, as it was not known who his itions were ; it was held that the proof was sufficient, and the was declared to be well proved.^^ And in the late case of rni v. Wright}^ where on an issue directed by the Court of ncery, only two witnesses were called, the will was held well Xr^ k.v) •" T.n!,. It T-">*.|'5 Registration. — It has been held in this Province that in ease I registered title, a vendor cannot make out a goo," *itle unless pe deeds are registered.^^ rLord Eldon, Lord Rancliffe v. Lady ParJniu, 6 Dow. 202 ; see Doe d. WildgooH v. Pearee, 2 M. & R. 2W. *l Oldham v. WoUey, 8 B. & C. 22. Oldmll v. Deakin, 2 Man. & Ry. 192. Holtony. Lloyd llMolloy,30. fight V. Wright, 7 Biag. 458 ; Addy v. Grix, 8 Ves. 185, 534. pile V. Blundell, 19 Ves. 505 ; Cooper, 13«, S. C, overruling a dietum of Lord Thurlow in iPoireJ V. Cleaver, 2 B. C. C. 603. "« V. B(un3| Geo. III., c. 5, the same shall be, and is ' '^reby declared to be, good and valid conveyance in law." Subsequently, it was enacted by the 4 Wm. IV., c. 1, sec. 47—" ThJ after the passing of this act a deed of bargain and sale in this Proj ince shall not be held to require enrolment or to require registratia to supply the place of enrolment for the mere purpose of renderin such bargain and sale a valid and eflfectual conveyance for passir the land thereby intended to be bargained and sold, provided alwaj that the necessity of registering any duch deed of bargain and i in the registry of the County in which the land is situate, in ordj to guard against a subsequent purchaser of the same lands, obtaij ing title by prior registry shall continue as before the passing | this act." In 1846, all the then existing statutes as to registration we repealed, and an act passed,^ consolidating and amending tl Registry laws. -l V By that act,' the 2nd section of the 3^5 Geo. III., c. 5, was i enacted in todidem verbis : and it was further provided * that wij 1 37 Geo. III. oh. 8. 2 9 Vic. oh. 34. 3 Sec, 6. 4 Sec. 12. ORDINARY CONTENTS OF AN ABSTRACT. 1269 rthe probate thereof, should be recorded within the space of twelve nonths after the death of the testator, and it was declared that nch registration " shall be as valid and effectual against subsequent nrchasers, as if the same had been recorded immediately after the ath of such respective devisor, testator or testatrix; anything lerein contained to the contrary thereof in anywise notwithstand- ing : provided always, that in case the devisee or person or persons iiterested in the lands, tenements or hereditaments, devised in any nch will as aforesaid, by reason of the contesting such will, or by ny other inevitable difficulty, without his, her or their wilful neglect r default, shall be disabled from the recording the same within the spective times hereinbefore limited, then and in such case the wording the same within the space of twelve months next after his, ler or their attainment of such will or probate thereof, or the Qoval of the impediment aforesaid, shall be a sufficient recording Irithin the meaning of this Act ; anything herein contained to the jjiitrary hereof notwithstanding." A further alteration and amendment of the Registry Law took be in 1850, and in the act,^ then passed, the option given as to stering deeds was taken away, and it was enacted,^ — " That er any grant from the Crown of any lands in Upper Canada, and patent thereof issued, every deed, devise or other conveyance shall be executed at any time after the first day of January, |lal, whereby any lands, tenements or hereditaments in Upper ia may be in any wise affected in Law or Equity, shall be lljudged fraudulent and void, not only against any subsequent liaser or mortgagee for valuable consideration, but also against a kbsequent judgment creditor who shall have registered a certificate jlliis judgment, unless such memorial be registered as by tlie said first fcited act,' is specified before the registering of the memorial of the led, devise or conveyance, or the certificate of the judgment under |ich such subsequent purchaser, mortgagee, or judgment creditor ppectively shall claim, subject, nevertheless, as to devisees, to the lovisions contained in the 12th section thereof; provided always, I nothing herein contained shall be construed to affect the right llUUVicoh. 68. |8«,3. hVlc ch. 84. . ■ ' . -^■P" r- , IS 1270 PROCEEDIN(J[S IN THE MASTERS OFFICE. of equitable moi'tgagees as now recognized by the Court of Chancpn in this Province." ^' ' By the next section/ after reciting that the doctrine of tackiij had been found productive of injustice, and required correction, was enacted, that deeds should take priority according to registratioi and if not registered, according to the time of execution. And the 8th section, it wp/S provided, — " that the registry of any deej conveyance, will or judgment under the first recited act,^ or th act, affecting any lands or tenements, shall in equity constitul notice of such deed, conveyance, will or judgment, to all persoj claiming any interest in such lands or tenements subsequent to sui registry." ■-■ .•■ -'■ ^'' . - ;■,,■■.- ;v.»ij ■ .. ^ ■ The 16th Vic. c. 187, made provision,^ that whenever, after tj passing of the Act, a deed should be executed under a power attorney from the grantor, a memorial of the power might registered in the same manner and upon the same evidence aa tl memorial of a deed. In 1855, statutory provision was made* for the registration decrees of foreclosure, and other decrees in Chancery, affecting an title or interest in land, and ifc was also enacted that the filing ofl bill or taking any proceeding in the Court of Chancery in whij any title or interest in land might be brought in question shou not be deemed notice of such bill or proceeding, to any person a party thereto, " unless ^ and until a certificate shall be given 1 the Registrar of the Court of Chancery, and registered in Registry Oflfice of the County or Union of Counties in which lands are situate, the title or interest in which is questioned in su bill or proceeding." Upon the consolidation of the Statutes taking place in 1859, various enactments above referred to, from the 9th Vic. c. 34, w^ embodied in one act,^ with only a few slight verbal alterations, i the law as to the registration continued in the same shape, exc 1 Sec. 4. ■ :--''': '■■ ?■-' -' ' : ' ■ 2 9Vlc. ch. 34. - ' 3 Soc. 7. ' V 4 18 Vic. ch. 127, sec 4. T -< ,. 5 Ibid. sec. 3. 6 Con. Stat. U. C. ch. 88. ORDINARY CONTENTS OF AN ABSTRACT. 1271 itotlie registration of judgmeuts, which was abolished in 1861/ mtil the year 1865, when the 29 Vic. c. 24 was passed. I In the first Session of the Legislature of Ontario, an act * was sed, "respecting Registrai*s, Registry Offices, and the registration jflnstruments affecting land in the Province of Ontario," by the ond section of which, all Acts inconsistent therewith were repealed. The provisions of these two Acts, as to the mode of registration, I the effect of registering, or omitting to register, are exactly the ae, and are as follows : — After any grant from the Crown of lands in Ontario, and jettera Patent issued therefor, every instrument affecting the lands lany part thereof comprised in such grant, shall be adjudged |iuduleut and void against any subsequent purchaser or mortgagee [valuable consideration, unless such instrument is registered in I manner herein directed before the registering of the instrument [lider which subsequent purchaser or mortgagee may claim."^ "All wills or the probates thereof, registered within the space twelve months next after the death of the devisor, testator, or ,trix, shall be as valid and effectual against subsequent ihasers and mortgagees, as if the same had been registered "diately after such death ; and in case the devisee or person irested in the lands devised in any such will, is disabled from istering the same within the said time by reason of the contesting such will or by any other inevitable difficulty without his or her il neglect, or default, then the registration of the same within space of twelve months next after his or her attainment of such lillor probate thereof, or the removal of the impediment aforesaid, I be a sufficient registration within the meaning of this act."* I'The registry of any instrument, under this Act, or any former |i, shall in equity constitute notice of such instrument, to all persons ng any interest in such lands subsequent to such registry."'' hVlc.ch.41. lOnt. Stat. 31 Vlo. oh. 20. jSVic. oh. 24, sec. 62 ; Ont. Stat. 31 Vic. ch. 20, sec. 64. JSVlc. ch. 24, sec. 63 ; Ont. Stat. 31 Vic. ch. 20, sec. 05. f»Vic. ch. 24, sec. 64 ; Ont. SUt. 81 Vic. ch. 20, sec. 66. J! 1272 I'llOUJiEDlNUS IN THK MASTEIl S OFFICE. " Priority of registration shall in all cases prevail, unless betoi such prior registration there shall have been actual notice of thi prior instrument by the party claiming under the prior registration."'! " No equitable lien, charge, or interest, aftecting land shall y deemed valid in any Court in this Province after this act shall conij into operation, as against a registered instrument executed by thi same party, his heirs or assigns ; and tacking shall not be allowed ij any case to prevail against the provisions of this Act."^ Before patent from the Crown, the only instruments which cau h\ registered in the County Registry Office, are those which create mortgage lien or incumbrance upon the land.^ The registration i uhese instruments is effected under the Consolidated Statutes Upper Canada, eh. 80, s. 24. Since the 18th September, 1865,* grants from the Crown ari registered by producing the original to the Registrar, and fil with him a true copy sworn to by any person who has compared il with the original. All other instruments except wills, are regia[ tered by the deposit of the original instrument, or by the depo of a duplicate. Wills^ are to be registered at full length by the production of th| original will and the deposit of a copy, with an affidavit swom i by one of the witnesses to the will proving the due executiaj thereof by the testator, or by production of probate, or letters ( administration with the will annexed, under the seal of any Cou in this Province, or in Great Britain or Ireland, or in any BritisI Province, Colony or Possession, having jurisdiction therein ; and bj the deposit of a copy of such probate or letters of administratioij with an affidavit verifying such copy. Prior to 184;6, all that was required for registration was that thMi^ ^ memorial should be in writing, and in the case of deeds, under thHiQQfj hand and seal of the grantor, or of one of the grantors if more thaBmg^ one, or of some or one of the grantees, his or their heirs, executoi^^rerf 1 29 V to. ch. 24, sec. 65 ; Otit. Stat. .31 Vic. eh. 70, sec. 67. 2 20 Vic. ch. 21, sec. 66; Out. Stat. 31 Vic. ch. 20, sec. 68. 8 Holtond V. Jfoorc, 12 Grant, 296. t 4 29 Vic. ch. 24, sec. 35 ; Out. Stat. :il Vic. cii 20, sec. 34. ■ • 6 29 vie. ch. 24, sec. 36 ; Ont. Stat. 31 Vic. ch. 20, sec. 85. ' " '■''' ■ '' " ^wr ORDINARY CONTENTS OF AN ABSTRACT. 1273 administrators, guardians or trustees, attested by two witnesses, ne of whom was one of the witnesses to the execution of the deed, nd who was required to prove upon his oath the due execution of Jie deed or conveyance, and of the memorial.^ Wills were regis- iered, upon a production of a memorial, undfer the hand and seal of (ime or one of the devisees, his or their heirs, executors or admiu- itrators, guardians or trustees, attested by two witnesses, by one fwhom the due execution of the memorial was proved upon oath. The statute^ required the memorial to contain the day of the nonth and the year when such deed, conveyance or will bore date, nd the names and additions of all the parties to such deed, con- Ireyance or wiU, or the devisor or testatrix of such will, and of all 'ie witnesses to such deed, will or conveyance, and the places of teir abode, and to express or mention the lands, tenements or |ereditaments contained in such deed, will or conveyance, and the aes of all the Townships or Parishes within the said County or /Dimties, Riding or Ridings, where any such lands, tenements, iitament or hereditaments are lying or being that are given ited, conveyed, devised or any way affected or charged by any ich deed, will or conveyance, in such manner as the same are pressed or mentioned in such deed, will or conveyance, or to the ae effect. • the 9 Vic, c. 34,^ a further requisite was introduced, viz : lat the witness who proved the execution of the deed, conveyance [will, should also depose " to the place where the same was exe- and this is still an essential requisite in the affidauit of the sting witness.* iTo a perfect registration it is essential, that all the requirements jtheact should be complied with. / / ,;,.;. |In Robson v. Waddell,^ the objection being taken, that in the aorial the addition of the witness to the deed was not given, ugh his name and place of abode were stated, Draper, C. J., in tvering the judgment of the Court said, " among the directions of IliOeo. HI. oh. 6, wc. 4. IKQeo. III. ch. 6, sec. h ; Con. Stat. U. C. ch. 89, sec. 19. iCon. Statu C. ch. 89,sec. 23. ^Vic. ch. 24, 8eo. 89; Ont. Stat. 81 Vic oh. 20, sec. 88. Q. a U. 0. 674. -■■■■> fl5 1274 PROCEEDINGS IN THE MASTER'S OFFICE. this act is one, that every meinurial shall contain the names aiiij additions of the witnesses to the deed and the places of their abode It is enough to insert the names and additions of the parties to thJ deed, in the same manner or words as they are set forth therein ; bul with regard to the subscribing witnesses, their names and additionsj and places of abode (though the two latter aie rarely if ever in thij country mentioned in the attestation) must be set forth in thj memorial. The place of abode of a witness, when, as in the presen| case, his identity was established on his own oath at the trial, may'oi deemed unimpoi-tant ; but it is one of the things which the statut requires, and the Coui"ts neither can nor should endeavour to dispensj with it, though in this particular instance, and even generally, thej may think it of little value. f ..J/;; " We may think the objection to be strictly literal and teehnic and may regret an omission such as has been made, which has noj and scarcely could under all the circumstances have operated to th prejudice of the subsequent mortgagee : that in fact it may ha\^ been rather to a search after objections, than for notice or informatioi that the discovery of this defect is owing ; but we cannot see in this a sufficient reason for disregarding the language of the acj Our judgment therefore must be founded upon the statute. We aq bound to hold that this non-compliance with one of its exprei requirements makes the prior deed fraudulent and void as again the subsequent mortgagee." In another case,^ where the objection was, that in the memorij the place of abode of the witness was given as, " of LondoD although the objection was overruled, the description being held I sufficient compliance with the act, Esten, V. C, said, " It is undoub edly essential that the requirements of the Registry Acts should strictly observed, and any material failure in that rospect will vitia the registration." ,, . The description of the parties as, " of the City of London," witk adding "in the Province of Canada," was in the same case, hej sufficient. 1 Reid V. WhUehead, 10 Grant, 448. ORDINARY CONTENTS OF AN ABSTRACT. 1275 To the atiidavit of execution two objections Heem to have been Itakeri, the one, tliat the witness merely stated therein, that' he had [■seeu the due execution of the deed ; " the other, that the place of Lxecution was not mentioned. With reference to these objections |li, C. Esten said, " If the matter had been res Integra I should be ttrongly 'disposed to think that it was not sufficient for the affidavit ) state that the witness had ' seen the due execution of the deed ;' 1 should have thought that it should describe the act performed, as I an ordinary affidavit of execution, so as to enable the Registrar ) judge of its sufficiency. But in this respect the affidavit follows jie form prescribed by the act of Parliament — it is probably a Lnn commonly used — the affidavit is not the act of the party but fa witness, and it is a matter transacted between the witness and te Registrar, not intended lor the information of the public, but Ijr the satisfaction of the Registrar. It would be perhaps not too Buch to hold that all the provisions respecting the proof are direc- Lry. The mention of the place of execution is, I think, intended ) enable the Registrar to judge of the nature of the proof required that particular case, and which is different according as the Btrament is executed in, or out of Upper Canada. The Legislature |ave not thought it of sufficient importance to require it to be ated in the memorial, although it might afford some clue to the covriry of the instrument, or the detection of any fraud connected ^th it. I do not think that any defects in the affidavits in this ise affect the validity of the registration to which they relate." . Where the deed was registered upon a memorial executed by the antee, it was held necessary in order to valid registration, that be of the witnesses to the memorial, should also be one of the pesses to the execution of the deed by the grantor.^ ,. ;.„,^ ^axi^ It is no objection to the affidavit of execution, that it was taken fone of the subscribing witnesses before'the other. "^ Whether an Idavit sworn before one of the parties to the instrument would for to the 18th September, 1865, be objectionable, is undetermined' It since that date it would, the statute ^ saying, " none of the per- i authorized to take affidavits by this act shall take any affida- \iiuki. Bennick v. Amnstrong, 1 Hud. k, Brooke, 727. \m V. Whitehead, 10 Grant, 450. IS Vic. ch. 34, sec. 45 ; Ont. Stot. 31 Vic. eh. 20, aec. 44. ' .'ji'-^': !''■>';■■ :ivO '; ■*'■. Siil fc. 1 27() pr(m;kedin«s in thk master's ofkiok. 4 vit of the execution of any inHtruniont in caae ho is a party to siiei instrument." •■ , , ,, = For the registration of a will, it is now os.sontial, whore the orii'i will is |)ro(lucod.to the Hogistrar, that the witnosH making tlieallj davit should swear to its oxecutiou by the testator ;^ but prior i these statutes, proof of execution by the testator was required onlj in the case of wills executed out of Upper Canada. ,,,, ^ As to the certainty of description of the land intended to be con veyed, in the case of Meid v. Whitehead, already quoted from, wlieij it was objected that the description in the memorial did not suH ciently identify the premises, and the Court held that it did ndt.tlj Chancellor, after quoting the section of the statute which declare what a memorial is to contain, said, " I take these words to mea that the description of the lands, as contained in the instrunieut, i such description as shall identity or make them known jvs fully i that description itself, shall be contained in the memorial." " Now, what are the facts here ? The instrument sought to registered purposes to assign a part of lot 10, in the City of Londo as described in a certain indenture of mortgage thereto attache and which was not on the registry books. The memorial uses prj cisely the same words, but without showing what were the described in the deed referred to. The assignment and the de taken together show the lands, and for this purpose they become i corporated and form one instrument ; but the assignment by itsel or the memorial by itself, would not show what lands were assigne or were affected by the deed assigned ; and the memorial, therefoij has not done its work. It does hot mention the land contained the instrument sought to be registered, for that instrument adop and incorporates, by reference to another deed, where the descrij tion is to be found, and the memorial in order to describe the lanj tnily, should have gone to that instrument to which it referred, an taken from it the description, stating that it had been so taken and the Court on this ground held the registration void. On appeal, however, the decree of the Court of Chancery reversed.^ 1 29 Vic. ch. 24, a«c. M ; Ont Stat. 31 Vic. ch. 80, sec. 36. S a E. ft A. Rep. 682. ORDINARY rONTKNTS OF AN ABSTRACT. 1277 s a party to micI In (leliverinj( tlio jml^iiiont of the Court of Error and Appeal, IfanKoughnot, il, said, " Three qne,stion.s did not Hutticiontly engage [ttention there (i. «., in the Court luilow). Tluj firHt is, whether or ottho aHsigrunent of the mortgage; was in itself a conveyance capa- iof passing the interest wlueh the mort/jagee took* under the uu)i*t- go in the land conveyed by it. 1 cannot say it was not. A refer- icein one deed to a description of lan«l appearing in sonie other leed or i)a])er, may he rendered sufficiently certain on the produc- bn of the latter. If this cannot he produced the grantee may be able to make out his title, but this is a risk more or less common jail documents. A j)arty desiring to deal with any ]K)rtion of the D(l which may be att'ected by a descrijition so given, must, 1 sup- ise, satisfy himself by inquiring what that description does cover, the will run the risk of it ; as on the other hand the owner of the tA may find difficulty in disposing of his property when the de- riptlon which lie gives in a deed relating to a portion of it is not cnt or easily ascertained. The second question is, whether the «d being operative, a registration of it by a memorial following lie language of the deed is sufficient. I think we must say that it is." t of Chancery Care should be taken to see that the affidavit of execution is pn before a person qualiffed to administer the oath. I Before 1818, there seems to have been no provision for proving ! execution of deeds executed out of Upper Canada. The act* lovided only for proof of execution being made, by an oath before ! Registrar, or his Deputy, or by affidavit sworn before one of the es of the (Jourt of King's Bench, or before a Commissioner llliorized to take affidavits in that Court. ., ; , , r- - lAn act 2 passed in 1818, provided for proof of the execution of (18 in Great Britain and Ireland, or in any Colony belonging to Crown of Great Britain, being given by affidavit sworn before yor or Chief Magistrate of any City, Borough, or Town Cer- ate in Great Britain or Ireland, or before the Chief Justice or ge of the Supreme Court of any colony. Another section^ of the pe act, allowed the execution of deeds to be proved before the _5fieo. III. ch. 6, sees. 4-18. |«Ge<). III. ch. 8. 3 See. 3. >>', .'.fi ^ 1278 PBOCKEDINOH IN THE MAHTER's OFFICE. Justices in Quarter SesHions a8HenibIe' j} I . ./ The 9 Vic, c. 34, made further provision for tlie proof of deed executed abroad, by affidavit, sworn in Lower ('anada, before thj Chief Justice or Judge of any Court of Queen's Bench, and befor the Mayor of any ( *ity. Borough or Town Corporate in any foreie countiy, or before any Consul or Vico-Consul of Her Majesty, resij dent therein. 1 >, By the 12 Vic, c 77. the Chief Justice and Judges of the Coiir of Queen's Bench were empowered to appoint Commissioners ii Lower Canada for taking affidavits in any Court of Law of Recorj in Upper Canada, and the act^ made affidavits of the execution ( deed sworn before such Commissioners, sufficient evidence iipn which to register the memorial. In addition to the persons specified above as qualified to take afi davits for registration puqioses, affidavits of execution may now'l sworn, in Great Britain or Ireland, before a Judge of any of th Superior Courts of Law or Equity ; or the Judge of any CountI Court ; or before a Commissioner appointed for taking affidavits if the Canadian Courts f or a Commissioner appointed by the Loi[ Chancellor to administer oaths in Chancery in England ;* or hum a Notary Public, certified under his hand and official seal.^ In Lower Canada, before a Judge or Prothonotary of the Supericj Court, or Clerk of the Circuit Court.** If executed in any British Colony or possession, the affidavit inal now be also sworn, before any Judge of a Court of Record ; or fore any Notary Public ; and in the British possession in India, 1 fore any Magistrate or Collector, certified under the hand of tii Governor to be such ; and in foreign countries before any Judge i a Court of Record. ,\ ^ 1 Sec. 2. 2 29 Vic. ch. 24, sec. 42 ; Ont. Stat 31 Vic. ch. 20, sec. 41. S 26 Vic. ch. 41, sees. 3-5. This act tias been repealed, except as to Commissions already is by Ont. Stat. 34 Vic. ch. 14, sec. 1. The Ont. Stat, re-enacts the original Act, only siibrtituti| «ifi " Lieutenant-Governor " for "Governor,"' and "Ontario "for "Canaila." 4 Ibid. 5 Ibid, e 29 Tic. ch. 34, sec. 42 ; Ont. Stat. 31 Vic. ch. 20, sec. 41. ORDINARY t'ONTENTS OF AN ABSTHACT. 1270 ere the witnessel ,ry of the Superid It would seem to be iit'ce.saary, that the })er.s<)U before whom the Sidavit is sworn, .should add to his signature the addition "Com- Inissioner," or other designation, showing the character in which the liflidavit was taken before him.' Purchasers are now, however, protected from danger in conse- quence of many slips and errors which would, until recently, have [itiated the registration, by the provisions of tlie recent Registry icts,^ that no past registration is to lie void, " by reason of any Clerical error or omission of a formal or technical character." 6. Acfyt of Pdvliament. — Acts of J'arliament are records, and Itlate either to the country at large, when they ai'c called general (tfl, or only to particular classes of men, or to certain individuals, in [irhich cases they are called private acts.*^ In some acts of parliament not relating to the country at large, a ecial clause is inserted, declaring them to be public acts. Such is are considered in every respect as public acts.* Most private acts of !*• '•liament in this Province contain a clause daring that they shall be deemed public acts, and be judicially oticed without being specially pleaded ; and that a copy printed, purporting to be printed by the Queen's Printer shall be received sevideuce. .. .*" ■ , The clause declaring the act to be a public act, does not render a |opy of the act good evidence except as between the parties ; against angers it is inadmissible." Lord Tenterden, in the case cited, leld that the clause only applied to the form of pleading, and did kt vary the general nature and operation of the act. [Where there is a clause declaring a copy of the act printed by the ^een's Printer to be evidence, the production of a copy purporting [be 80 printed is sufficient f but if the act contains no such clause KQ, it must be proved by a copy examined with the original.'^ • 1.. •■'.' .■->>y ■■'■■■■. I '• . ^ • ; Imeockv. Municipal CouncU of Bedford, 8 C. v. v. C. 627. • .>•, |»Vic.ch. 24, sec. 78; Ont Stot. 31 Vic. ch. 20, sec 80. '., v ■, ..■ . -. ^ mb. Bt. 39, 40 . 1 PhM. Ev. 317. t^PhiU. Ev. 383. . ■ , .. Urett V. Beales, 1 Mood. & M. 425. ^ • ;,' «. [fttrton Vendors, 287 : IJJv'A. 169. 'r » [Cm Con. Ev. 81 ; Dart ou Vendors, 287 ; Lee on Abs.321. ,, ,, ili .0 1280 PROrEEDINOS IN THE MASTERS OPFICK. By the interprotration acts I Kith of the Dominion of Canada/ and Province of Ontario,'-' " Every act, shall, unlenn by express provisioiJ it is declared to bo a private act, be dejjmed to be a public act, mi shall be judicially noticed l)y all Judges, Justices of the Pcaco, mi others, without being specially pleaded — and all copies of acts] public or private, |>rinted by the Queen's Printer shall be evidenc^ of such acts and of their contents ; and every copy purporting to printed by the Queen's Printer shall be deemed to be so printed." A public act of Parliament is notict; to all mankind, but a privat<] act, or a private act made public, is not of itself notice to a |)ui-| chaser.' The only object of \he proviso for making it a public ; being, that it may W judicially taken notice of without Ix'iiio specially pleaded, ara to save the expense of proving it by an attesJ ted copy.* Where a sale is made in pui-suance of an act of Parliament, tli^ provision of the act must be followed strictly ; the exercise of powen conferred by an act of Parliament receiving like the exercise n| other powers a strict construction, consequently the evidence neces- sary to show that all the forms have been complied with, becomes « necessary part of the title.*^ But if a Court having jurisdiction improperly decides, in carrying into effect a special act of Parliaj ment, as to debts or claims on the estate, such errors will not affecf a purchaser.® Recitals in private acts require the same authentication as aveij ments in ordinary deeds, the act itself being nothing more thanj private assurance.^ Records and Proceedings in Ch- '>r'.e y. — A record is conclul sive proof that the decision or jud^ of the cou -^^ was as is therj stated, and evidence to contradict ii \ 11 not be adnutted.* Recon are preserved in public repositories, and xamined copies ther are admitted as the best producible evidence ;® but copies of sucj 1 81 Vic. ch. 1 see. 7, subsec, 38. 2 Out. Stat. 81 vie. ch. 1, sea 7, subseo. 88. "'■ " "' " * 8 Sua. v. & P. 758 ; Dart on Vendors, 789 ; and see Barravd v. Archer, 2 Sim. 483 ; 2 Ru». indl 751. 4 Hope V. Stevenatm, 8 Bos. k P. 578. 5 Sua. v. A P, 111 ; Atkinson on Titles, SiW. ' '"' -^ 6 -Stiflr. v. & P. Ill, 112. 7 Coo. Con. Ev. 81. 8 Co. Litt. 852 b. ; 1 PhilL Ev. 817 ; see Rogers v. Wood, 2 B. & Ad. 245. 9 Leightan v. Leighton, 1 Str. 810 ; 1 Phill. Ev. 383. K. ORDINARY CONTENTS OF AN ABSTRACT. 1281 of Canada,^ andl icpresa provisioiJ I, ptiblic act, an« : the Peace, amll copies of actsj hall be evidenc purporting to be so printed.' lid, but a privati notice to a imi ng it a public f without Ix'iii] ig it by an atte8^ f Parliament, th^ Bxercine of power :e tlie exercise oi le evidence necesj id with, becomes ( iving jurisdictiun ial act of Parliaj ors will not affecj jntication as averi ^hing more than opies are inadmiHsible unless the originals bo destroyed,' But it I essential to the admissibility of such copies, that thoy be made the proper officer.^ Decrees. — Where a decree of the Court of Chancery forma a link in he chain of title, it is the duty of the purchaser's solicitor to* look ough the whole of the decrees and other proceedings in Chancery I ascertain that nothing contained in them will affect his title,^ A purchaser will not be protected by a decree obtained in an im- lerfect suit, such a decree not being binding as to person* not ties to the suit, and whose rights are atfected by it.* A party chasing under a decree of the Court is bound to see that the sale I made according to the decree ;" and all the proceedings in the ought to be produced and inspected by the purchaser." The lourt, though it may direct the sale of the property, never under- kes to warrant the title, and it is quite possible for a purchaser to [evicted, although the sale is made by an order of the Court, and hough the title has passed through the Master's Office.^ I The only mode in which a purchaser can obtain a more perfect tie on a sale under a decree, than under an ordinary contract for chase, is by obtaining a deed from the Court under the act for deling Titles.^ I If a purchaser takes a title to an estate sold under a decree, but ; in conformity with the provisions of the decree, he will not be ratected by it,® sales under decrees being entitled to protection ken they are conformable to the decree, not otherwise.^® iMere irregularities in a decree are not, however, sufficient grounds record is coJ^clumj^p^j^y^jj^g ^ ^^j^ ^^^ under it. Ill ' was as is ther^ uitted.* RecordBn Bewn*^ v. Hamill}^ Lord Redesdale said, "The purchaser has a led copies theretBit to presume that the Court has taken the steps necessary to Ibut copies Ot SU Mj^^^ Pnud^, 1 Mod. 117 , Price v. Torrington, Salk. 285. ■ ^" IN. P. 229. I Abe. 317. gk V. Sterum, 3 Bligh, 186 ; Oifard v. Hart, 1 Sch. & Lef 386. , '■ " , 2 Sim. 483 ; 2 RUM. «Mi^i^^jj ^j^ jy^ • on Abe. 176. . ch. 25, sec. 81 gkv. Sterum, 3 B\igh,lSI9. »n on TiUes, 601. .khel. SflT ; and see Campbellv. Royal Canadian Bank, \9Qnnt,3S4. 57 ,0 1282 PROCEEDINGS IN THE MASTER'S OFFICE, investigate the rights of the parties ; and that it has on the investi-j gation properly decreed a sale ; then he is to see that this is decree binding the parties claiming the estate, that is, to see that alj proper parties to be bound are before the Court, and he has furthei to see that taking the conveyance uo takes a title that cannot bj impeached aliunde. He has no right to call upon the court to pro tect him from a title not in issue in the cause, and no way affectea o^ the decree, but if he gets a proper conveydnce of the estate, so tha no person whom the decree affects can invalidate his title althougj the decree may be erroneous, and, therefore, ought to be reversej I think the title of the purchaser ought not to be invalidated, we go beyond this, we shall introduce doubts on sales under th authority of the Court which would be highly mischievous." In Dickey v. Heron^ where a motion was made by the defendan to open biddings or set aside a sale, on the grounds that the repoj of the amount due by the defendant was not filed u\itil after t^ day appointed for payment, and that the sale under the decree h^ not in fact been advertised as directed by the Master althoufl stated in the report on sale to have been sc, it was held that t| first objection had been waived by delay and that the second not affect the purchasers, Spragge, V.C, saying, " I think a strac purchasing is not a.fected by proceedings in the suit further thj this, that he must see that there is a decree or order authorizing t| sale that is made." In another case where a bill was filed to impeach a sale md under a decree. Lord St. Leonards said, " if I found a purchaser bu ing, where fraud appeared clearly on the face of the decree, I shoi hold hira to have notice of it ; but I should have much hesitation visiting a purchaser with the consequences of what might be dee.ij implied notice of a fraud, which \ras noo discovered by the Cour the officers of the Court, or the counsel concerned in the cause, whj duty it is not to permit the Court to make a decree not warrar by the fia«ts of the case." ;.n •);..•/ i^ v ^r • ^ Where the title is derived, not under a decree for sale, but ur a decree and final order of foreclosure, the same rule seems to aj)p 1 1 Chan. Chani. R. 149. 2 Sov«n V. fmm, 1 J. & L. 267. ,'" ORDINARY CONTENTS OF AN ABSTRACT. 1283 In the case of Gunn v. Dohle} where a bill was filed by a Inortgager against a purchaser from the moitgagee after a final lorder of foreclosure, several objections were taken to the regularity jofthe proceedings in the foreclosure suit. It was objected among lother things, that in the bill and all the subsequent proceedings the Iplaintiff was improperly named as " Annie Louisa Rail," her proper liame being " Annie Louisa Rait ;" that a person to whom the de- jfendant conveyed pendente lite should have been made a party ; nd that the report finding the amount due and appointing a day [for payment, though dated on the 18th of March, was not in fact aed until the 18th of April. All the objections raised were over" luled by Spragge, V.C., although the learned ^'^ice-Chancellor ex- med his disapprobation of the ante-dating of -he report, remark- g, " If the question were between the original parties, it would be I least doubtful if the mortgagee could have held her final order of eclosure ; the question is, whether Doble purchasing under the [ircumstances that he did, can be affected by the irregularity." After commenting upon the authorities (all of which have been \y quoted) the learned Vice-Chancellor said, " The observations liH learned Judges, whose language I have quoted, occurred in es of sales under decrees ; but I apprehend that they did not to hold purchasers under decrees not bound to look at the eedings before decree, merely on the ground that to require more Jould have a tendency to damp the sales of the Court ; in other lords, that it would lot be expedient to require more ; but that, ile pointing out th ; injurious effect that the requiring more lould have upon sales, they held af a matter of principle, that tties acquiring rights under decrees, not being themselves parties [the suit, could not be held bound to see whether the proceedings [which the decree was arrived at were correct and regular ; inclu- ; in the word decree any decretal or other order by which the [lits of the parties were disposed of ; and which would compre- Bd a final order of foreclosure, and, as the fonn is in Ireland, of ilosure and sale. If a purchaser at a sale by the Court ' has a Jit to presume that the Court has taken the steps necessary to in- iligate the rights of the I)artie^^ and that it has on that investi- IliOrtnt, 655. >l 1284 PROCEEDINGS IN THE MASTERS OFFICE. gation properly decreed a sale,' it does appear to me, upon princi- ple, that a purchaser from a party in whose favor the Court has decreed final foreclosure has the like right to presume that the! Court has taken the like steps, and has upon investigation properlyj decreed final foreclosure. Again, to refer to the language of Lordl St. Leonards, while there would be no wrong in holding a purchaser! bound by what appears upon the face of a decree or other order which may be said to constitute a link in his chain of title, it would be quite another thing to hold him bound to look into that| which was not discovered by the Court ; which the Court had passe as correct and regular, and upon which the Court had founded it decree or order." ,^...; . . A decree of foreclosure against an infant defendant should givJ the infant a day to show cause after attaining twenty-one;^ andij followed by a final order, the order must also reserve day to show cause. But where the decree was made against th ancestor of the infant in his lifetime, and the suit is afterwards i vived against the infant, no reservation by the final order of a daj to show cause is necessary.^ Until notice of the decree is served upon the infant, after he aj tains twenty-one, the decree is not absolute ; the only cause, hoi^ ever, which the infant can show, is error in the decree. In cases where, on account of the defendant not having served personally with the biU, the decree is not absolute for th years,' it does not become absolute by effluxion of time merely, i order making it absolute must be obtained from the Court. M 1 l( J •!> U'. I'","^'iw) ti t^i l..Ji In suits for partition or sale, the decree of the Court is " as* efftj tual for the apportionment or conveying away of the estate or inter of any married woman infant, or lunatic, party to the proceedin by which the sale or partition is made or declared, as of any pen competent to act for himself," and no day to show cause need be i served. 1 JIfair V. ^Terr, 2 Grant, 823. .,«.-;-> 2 Stttherland v. DiekHon, 2 Chan. Cham. 26. . 3 Chan. Con. Onl 113, 114, 116, 118 ; Taylor's Chan. Orel. 179, ISO, 181. 4 Con. Stat. U. C. ch. 12, see. 47. Or. PCon, I Jus.!. fl*8ea Con. I ORDINARY CONTENTS OF AN ABSTRACT, 1285 5, Upon princi- > the Court has! sume that the I gation properiyl iguage of LordI ling a purcbBBerj e or other order bain of title, iti look into thatj Jourt had pass© had founded it lant should givj ;nty-one;^ andij also reserve made against tl b is afterwards lal orderof adaj ifant, after be aj only cause, hofl jcree. ^, . not having be^ absolute for th |of time merely, I the Court. Jourtis"a8*eff(| Ihe estate or inten Ito the proceediu ^d, as of any pen cause need be \ Vedintj Orders. — In every case in which the Court of Chancery has I authority to order the execution of a dcd, conveyance, transfer or Usignment of any property, real or personal, the Court may, instead 1 of ordering tl.e execution of a conveyance, ".make^ an order vesting such real or personal estate in such person or persons, and in such I manner, and for such estates, as would be done by any such deed, con- iTeyance, 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 or other estate or interest in the property had been actually leonveyed, by deed or otherwise, for the same estate or interest to the person in whom the same is so ordered to be vested, or in the lease of a chose in action as if such chose in action had been actually Itesigned to such last mentioned pei'son. Where a title is derived under a vesting order, the purchaser is lentitled to call for evidence that the persons whose interests were jintended to be assigned or conveyed by the order, were alive when Iwasmade.* It is doubtful whether the Court can, under this act, make a valid [Testing order transferring the estate of a married woman. In Clarh v. McGregor,^ a decree vesting the estate of a married |»oman was made by Mowat, V. C, but in Field v. Moore* the iaster of the Rolls said, " I am not aware of any principle which Irould enable this Court to bind the real estate of a married woman lany manner except by those formalities which are required by iDl' > '! = Under the Imperial Acts 13 & 14 Vic. c. 60, and the 15 & 16 Vic. c. , which are in force in this Province,* in the several cases of a luna- , or person of unsound mind, or infant being seised or possessed of i^ land upon any trust, or by way of mortgage, or entitled to any tttingent right in any lands upon trust or by way of mortgage ; Or, of any person, solely or jointly with any other person or per- I seised or possessed of any lands upon any trust or entitled to a [Con. But. U. C. ah. 12. see. 68. IStotei-r. i?wiwn, IChan. Cham. I. -'-' ■■ '■' I MB. mh April, 1867. llkBtw.196. ICon. Sttt. U. C. oh. 12, sec. 26, Bubseo. 10 ; Me Ltuh, 1 Uhaii. (Jham. 226. iiu ■5 128(5 PROCEEDINGS IN THE MASTERS OFFICE. contingent right in any lands uj>on any trust, being out of the juris diction, or not to be found ; , -, .. Or, of its being uncertain which of several persons jointly seise] or possessed of any lands upon any trust was the survivor ; Or, (where one or more pei-son or persons shall have been se'^e or possessed of any lands upon any trust) of its not being know] whether the trustee last known to have been seised or possessed living or dead ; . , Or, of any peraon seised of any lands upon any trust having die intestate as to such lands, without an heir, or having died and i\ not being known who is his heir or devisee ; .1 Or, of lands being subject to a contingent right iri any unboa person or class of persons, who, upon coming into existence, woulj in respect thereof, become seised or possessed of such lands upon ac trust; Or, of a person jointly or solely seised or possessed of any land or entitled to a contingent right therein upon any tnist being manded by a person entitled to require a conveyance, assignment, | release of the same respectively, or his agent, to convey, release assign the same, biit wilfully refusing or neglecting to convey or 1 sign the said lands for the space of twenty-eight days next such demand ; The Court of Chanceiy is enabled to make an order vesting suj lands in such person or persons in such manner and for such estal or releasing the lands subject to such contingent right therefrom, [ disposing of the same, as the Court shall direct ; and the order J in itself to operate as an assurance. ,^ ,,. And where any mortgagee shall have died without having enter into the possession or into the receipt of the rents and profits of i mortgaged lauds, and the money due in respect of the mortg shall have been paid to a person entitled to receive the same,! such last mentioned person shall consent to an order for the recc] veyance of such lands, the Court may make an order vesting su lands in such person or persons, in such manner, and for such est ORDINARY CONTENTS OF AN ABSTRACT. 1287 the Court shall direct in case an heir or devisee of such mort- gee shall be out of the jurisdiction or cannot be found ; Or, an heir or devisee.of such mortgagee shall, upon a demand by ^person entitled to require a conveyance of such lands, or his agent* lave stated in writing that he will not convey the same, or shall lot convey the same, for the space of twenty-eight days next after J proper deed for conveying such lands shall have been tendered to by a person entitled as aforesaid, or his agent ; Or, it shall be uncertain which of several devisees of such mort- ee was the survivor ; , Or, it shall be uncertain as to the survivor of seveial devisees of |ach mortgagee, or as to the heir of such mortgagee whether he be Ting or dead; Or, such mortgagee shall have died intestate as to such lands, and rithout an heir, or shall have died, and it shall not be known who fthe heir or devisee ; and the order is itself to have the effect of an enrance. ,.,,..,,,.,_.,.. ^ < . , i. . Instead of making a vesting or releasing order, the Court may, in pry case, appoint a person to make a conveyance, assignment, riease or disposition of the lands or contingent interest which, kn duly made, is to have the effect of vesting or releasing order. [Under theae provisions the Court may vest the legal estate, sub- to redemption, in the execator of a deceased mortgagee, or in ^administrator of a mortgagee in fee,whohas died intestate,^ whose ■ is unknown, the debt remained unpaid,'^ though at first the op- iite was held. ■ JX. Exemplifications under the seal of a court of justice are next in llhenticity to thase under the great seal,* if the court be established the common or statute law. But exemplifications under the I of inferior courts of justice will not generally be evidence ;* the t'i \ttBoien,lJ>. M. &0. 67. IbKeyncJt, 9Ha. 110. \mev Beaufort, Say. 297. (iiiiM V. Thornton, 8 T, E. 30 Onu, Ca. temp. Hardw. 108. i ; Doe d. Woodmasi v. Mason, 1 Esp. N. P. C. 68 ; KetnpUm v 15 .0 1288 PROCEEDINCJS IN THE MASTERS OFFICE. rolls of inferior courts, however, will be admitted as evidence of title as to matters peculiar to their jurisdiction.* The judgments and sentences of all competent courts of justice,! well of equity as of law, are conclusive evidence of the facts thejj decide.* So. also, the sentence of any foreign court, of competenj jurisdiction, directly deciding a question which was properly cogj nizable by the law of the country, seems to be conclusive in thia country. Thus the sentence of a foreign court, of competent jurisj diction, directly establishing a marriage in that country, would conclusive in any of our courts on the validity of the marriage.^ The book of the Court of Chancery would appear to be sufficienj evidence of a decree for alimony pronounced in that court, withou such decree being drawn up in form.* It is now decided that a bill in Chancery will only be evidence 1 show that such f bill did exist.^ It will not be admitted as ey dence to prove any facts either alleged or denied by the bill ; ' i a demurrer or plea to a bill in equity does not so admit the facj charged in it, as to be evidence against the defendant, of those fact[ in a future action between the same parties.' But answers in Chancery, being confessions on oath, will be ev dence of the facts sworn to by the party who makes them, him ; ^ and an examined copy of the answer will be a sufficient pro of it ;® but it cannot be regularly given in evidence without pro of the bill, for without the bill there does not appear to bei cause depending, i** Where, in an ejectment, examined office copies of a bill in Cha eery, filed by the defendant for an injunction, and of an affidai^ 1 Bull's. V. 247. , V4 2 See 1 PhU: Ev. 320, 848, S80 ; Clarges v. Sherwin, 12 Mod. 343 ; Marriott v. HompCou, 7 T.J 269 ; Bull N. P. 234 ; Doug. 222, n. 13 ; Bwhanan v. Rueker, 1 Camp. 63 ; Burke v. CnM Ball. &B. 489. 3 See Roach v. Oarvan, 1 Yes. 169 ; 1 PhUL Ev. 860-362. 4 Holiston V. Smith, 2 Car. & Pay. 22. 6 Lord Ferrers v. Shirley, Fit^b. lOfi , Bull. N. P. 236 ; Bowertnan v. Syboum, 7 T. B. 3| Wightw. 325. 6 Banbury Peerage case, 2 Selw. K. P. 686 ; 1 Phill. Ev. 868-9. 7 Tompkinn v. Aghby, 1 Moo. & Mai. 32. 8 1 PhUl. Ev. 369 ; and see Hudson v. Revaet, 6 Btng. 368. 9 16 East, 334. Bwer v. Ambrose, 6 Dov. & Ry. 127. 10 See 1 PhUl. Ev. 393. I'nutl V iCoo, Ste I«,«ec ICon. sut ORDINARY CONTENTS OF AN ABSTRACT. 1289 vidence of title nrporting to have beeu made in the equity suit, by a person of the ae name and description, to support a motion for an injunction, nd alleging title to the premises, in one of the leJ:>;Jors of the plain- % were produced to prove the title, it was heid that the copy of iie affidavit was not admissible without proof of identity, or that thad been used.^ But an examined copy of a deposition in Chan- lery is admissible in evidence, for the purpose of contradicting the atimony of the same person when produced afterwards as a wit- r. Syboum, 7 T. R. 3| A decree in the Cou^t of Chancery may be given in evidence in lie same manner and for the same purposes as the verdict or judg- at of a court of common law.^ It may be proved by an exempli- ation under the seal of the court, or by a sworn copy, or by a retal order in paper, with proof of the bill and answer.* By-LaiV8. — Under the Municipal Act* the Councils of every Town- iip, County, City, Town and Incorporated Village may pass by- kws, " for selling the original road allowance to the parties next ^joining whose lands the same is situated, when a public road has opened in lieu of the original road allowance, and for the site tline of which compensation has been paid, and for selling in like ler to the owners of any adjoining land any road legally stop- . up or altered by the Council ; and in case such parties respec- ively refuse to become the purchasers at such price as the Council reasonable, then for the sale thereof to any other person for ! same or a greater price." [No such by-law is to be passed,* " until written or printed notices [the intended by-law have been posted up one month previously [MX of the most public places in the immediate neighbourhood of 1 original allowance for road; and published weekly for at least successive weeks in some newspaper (if any there be) pub- lied in the municipality ; or if there be no such newspaper, then la newspaper published in some neighbouring municipality ; nor til the Council has heard, in person or by counsel or attorney* \iftt i. Hoteell v. Bowen 1 MCIell. & Yo. 388. \mMld T. Peake, 1 Moo. k Mai. 109. 3 1 Phill. Ev. 858. llmelv. CatOe, 1 Keb. 21. Com. Dig. Ev. (C. 1.) I Phill. Ev. 392. 893. |Con. SUt. U. C. c. 64, s. 331, s. 831, sub. sec. 6 : 29 & 30 Vic. c. 51, i. 833, sub. sec. 6 : 86 Vic. cli. I «,8ec, 426, sub. 8. |Con, Stat. U. C. c. 64, s. 321 ; 29 «( 80 Vic. c. 51, s. 328 ; 80 Vic. ch. 48, sec. 414. ■W '- i 1290 PROCKEDINGS IN THE MASTER'S OFFICE. is IP any one who may be prejudicially affected thereby, and who petl tions to be so heard." , ,. , . , ,, ,,...,,.; , . ■Ci r- County Councils may also make by-lawa^ " for stopping up, ( stopping up and sale, of any original allowance for road or pa thereof within the County, which is subject to the sole jurisdictic and control of the Council, and not being within the limits of an Village, Town or City within or adjoining the County." Township Councils'^ may pass similar by-laws, but in both casi requirements as are pointed out above are necessary to the validifi of the by-law ; and in the case of Township Councils^ it is furthJ necessary that thfe by-law be confirmed by a by-law of the Counq of the County in which the township is situate, at an ordinan session of the County Council, not sooner than three months, nj later than one year next after the passing thereof - 1 ' - ' If the trustees of any police village,'* or fifteen of the inhabitai householders of any unincorporated village or hamlet, consisting not less than twenty dwelling houses, standing within an area I two hundred acres, petition the Council of the ToAvnship in whid it is situate, and in case it is not a police village, if such petition f accompanied by a certificate from the County Registrar that a m of the village has been duly deposited in his office, the Council ma pass a by-law to stop up, sell and convey, or otherwise deal wij any original allowance for road lying within the limits of the vi lage or hamlet, as laid down on the plan, but such by-law is to 1 made subject to the provisions as to sale of road allowances. In case^ any one in possession of a concession road or side lij has laid out and opened a road or street in place thereof withol receiving compensation therefor, or in case a new or travelled puj lie road has been laid out and opened in lieu of an original alloj ance for road, and for which no compensation has been paid to tl owner of the land appropriated as a public road in place of sul original allowance, the owner, if his lands adjoin the conc( ssiT road, side line or original allowance, shall be entitled thereto in Id 1 Con. Stat. U, C. c. 64, s. 342, sub-sec. 1; 20 &30 Vic. c. 51, s. 844, sub-sec. 1 : 36 Vic. cli 4& secj 8Ul)8GC 1 I a Con. Stot ij. C. c. 64, s. 343, sub-sec. 2 ; 29 & 30 Vic c. 61, s. 846, sub-sec. 2 ; 36 Vic. ch. 48, aecj sub. 2. 8 Ibid. 4 Con. Stat. U. C. c. 64. s. 344 ; 29 A 30 Vic. c. 61, s. 346 ; 36 Vic. ch. 48, s«c. 448. 6 Con Stet. U. C. c. 64, 8. 332 ; 29 ft 30 Vic. c. 61, s. 384 ; 36 Vic. ch. 48, sec. 426. ORDINARY CONTENTS OF AN ABSTRACT. 1291 [the road so laid out, and the Council of the Municipality upon ^e report in writing of its Surveyor or of a Deputy Provincial qJ Surveyor that such new or travelled road is sufficient for the poses of a public highway, may convey tlie said original allow- for road in fee simple to the person or' persons upon whose nd the new road runs, and when any such road allowance is, in opinion of the Council, useless to the public, and lies between nds owned by different parties, the Municipal Council may, sub- to the conditions aforesaid, sell and convey a part thereof to lehof such parties as may seem just and reasonable ; and in case Qpensation was not paid for the new road, and the person through [hose land the same passes does not own the land adjoining the [inal road allowance, the amount received from the purchaser of (Corresponding part of the road allowance when sold shall be ud to the person who at the time of the sale owns the land through hich the new road passes. [Under the recent Municipal Act,^ Township Councils may pur- from the Government or any corporation or person all the |it lands at the disposal of the Crown or such corporation or son in any such Township, and the Council may possess and U the land so purchased, and may, whenever they deem it expe- m, sell or otherwise depart with or dispose of the same by public pion in like manner as they may by law sell or dispose of other (operty, and upon such terms and conditions, and with such raort- upon the land so sold, or other security for the purchase bney or any portion thereof, as they may think most advantageous. [To the titles derived under such by-laws the observations made jtitles under acts of Parliament apply ; all the provisions of the I must be complied with and strictly followed. . ^ ?mers of Sale. — On investigating a title depending upon the exercise of a power of sale contained in a mortgage, it is ortant to observe under what terms the power or trust is to in what manner it is to be exercised ; and j)articularly lether any notice is required to be given to the mortgagor prior ISliSO Vic. c. 61, s. 346, BUb. sec. 5 : 30 Vic. cb. 48, sec. 372, 8ub-sec. 16. '•* 1292 PROCKKDINOS IN THK MASTKK'h OKKIOK. ■'■■ to tho sale ; and if so, whether proper notice has been given accuii ing to the terms of the deed.^ A power, in a mortgage deed, to the mortgagee to sell, is in nature of a trust, but it may be exercised without the concurreil of the mortgagor.^ The mortgagee, like every other trustee, bound to use all the means in his power to get the fairest and price for the property.* .( , ,i ■■'.. » Where the power of sale is general, a mortgagee may accepfl fair offer by private contract, without first advertising the est and he is not bound to wait upon speculation for a better bidd or to put up the estate by auction, and although the purchaseij bound to see that the sale is authorized by the power, he is bound to enquire what steps have been antecedently taken for purpose of promoting the sale.* ,/ The mortgagor cannot purchase under the power so as to relia himself from subsequent charges made by him before the sale f perhaps the rule would be the same if the estate was sold stranger and purchaned from him by the mortgagor.* The mortgagee cannot, by a pretended sale, acquire the propej as his own ; relief from such a sale would be afforded even a| considerable distance of time.' ... If the mortgage is silent as to notice being given to the mor prior to the sale, it has been held that notice should be given if | power to sell is vested not in the mortgagee, but in some person as a trustee ; but if the mortgagor has .entrusted the m(\ gagee with the power of selling, no notice is requisite unless Added for by the deed.^ ''.''" j t^'i^i/ nr n^^i^mrr t*t o',wf: Where notice is required to be given, the power in this resp as in all others, must be closely followed. And in every whether notice is required to be given by the power or not, it, i 1 Lee on Abs. 141, 2 Sim V. & P. 65. , 5 Ormt V. Wright. 3 Jur. 19 , Riekmond v. Svans, 8 Grant, 608 ; Lateh v. Forlmg, 12 Orant, I 4 Davey v. Dummt, 1 DeO. & J. 636. 6 OUer\. Lord Vaux, 2 K. & J. 660 ; 6 D. M. & O. 638. 6 Sua. v. & P. 66 ; and see MeDonaUi v. iteynoM*, U Grant, 601. „ .,, 7 RiS>ertgk30Vlc. c.fiS,s 1S6. Out. Rat. 33 Vic. ,• 23. ! ill )««» ,0 1294 PROCEEDTNOR TN THE MASTER'S OFFICE. posseHsion for several years, and made extensive iinprovenients oi the landH, and ]>aid the taxoH charged thereon without any Hteii having been taken by the original owners to <|uestion the validitj of such sales, and alwo in otiua' cases aftisr improvements so ina(i those who have made the same have, after many years' occupation been dispossessed by the original owners or by purchasers t'ron them at a small and inadequate pric(; ; and it is expedient that remedy be provided in those cases wliere purchasers or those clair ing under them have gone into possession and improved, andal^ where the lands having continued vacant, the purchaser or thos claiming under him have paid taxes since the sale ; and it is ala expedient that those claiming lands sold for taxes should assej their own right of action or of entry, or forego such rights rathj than sell the same to a purchaser." i The act then ^es on to ena '* that in all cases where lands liable to be assessed had been soi and conveyed for taxes in arrear under colour of the statutes i that behalf, and the purchaser had entered into and continued occupation of the land sold or part of it, for four years prior to til first of November, 1869, and had made improvenients to the val^ of $200, the sale should be deemed valid." [From the effect ofth section, however, certain exceptions were made. The section do not apply, where the taxei had been paid before the sale, or tl land redeemed within the time limited ; nor in cases of fraud by i purchaser ; nor where the purchaser had been ejected by the origin owner, who had since continued in possession. In cities, towns \ villages, buildings only were to be deemed improvements, and t| purchaser at tax sale could not in any case claim to include in i valuation of improvements, any improvements begun by him ail the institution, and during the pendency, of any suit broughtj dispute the validity of, or set aside, the sale. Where any oft property sold had been subdivided into lots before the sale, occud tion and improvement of any lot or lots had the effect of makiJ the sale valid only as to the lot or lots so occupied and improve Tax sales were also made valid in the case of vacant lands.'if I purchaser had paid eight years' taxes prior to the first of Novemli 1869, and the original owner had not occupied the land for one yj between the sale by the Sheriff and the first of Novemlf 1869. For the tax purchaser to have the >)enefit of this provis ORDTNAHY CONTENTS OF AN ABflTRACT. 1295 I is not necessary for him to prove that the taxes paid by him had en legally charged, production of th(5 treasurers books, shewing at such taxes had been charged and i)aid, is sufficient.* In cases where the land sold had not been included in any return [flands by the Surveyor-General, still, if the patent had issued, and de patentee had occupied for at least two years before the sale, cupation for four years by the tax purchaser, and iraprovenionta ) the amount of $200, made the sale valid. And where the sale a valid one, or made valid by the act, the conveyance by the heriff was not to be invalid by reason of the statute, under the Ijithority of which the sale was mf de, having been repealed, or the heriff who made the sale haviug gojie out of office, before the cou- ieyance was made. ' . . , Where the sale or conveyance is void for uncertainty, and the lirchaser has improved the land, the value of the land and im- ovements is to be assessed in a particular mode, and the claimant ito pay for the improvements, unless the tax purchaser elects to lin the land on paying its value. Where the title of the tax chaser is not valid, or not made valid by the act, or where no nedy is otherwise given by the act, he has a lien on the lands for I purchase money paid at the sale, and for all taxes subsequently lid by him, with ten per cent, interest. ' ' " ' ' ''''^^ iThe act does not apply to any case where the original owner was [the time of the sale, and has since been, in occupation of the It forbids the conveyance of rights of entry adverse to a : purchaser in possession, and for this purpose revives the common ir, and the 2nd, 3rd, and 4th sections of the 32 Hen, VIII. ch. 9. [Since this act, a tax sale which took place before its passing, ttot be objected to on account of uncertainty in the description, f on the ground that the Sheriff did not proceed in the sale, and lit the sale was not made as required by the statutes then in |By this act of the Ontario Legislature, much of what is contained Ithe immediately succeeding pages is rendered obsolete. It is, lltmr V. West, 21 C. P. U. 0. 161. Iftwwv. Van yonnaa, 30|Q. B, U, C. 437. "I*. .5: 1296 PROCEEDINOS IN THE MASTER'S OFFICE. however, retained as an historical record of legislative and jndicia decisions in connection with tax titles. Since 1793, the i 'its relating to tho assessment of property an] levying taxes thereon have been numerous, have followed eacl other in such rapid succession, an 1 have been so varied in thei| provisions, that the law relating to such mattf3rs is in an excee(| ingly unsatisfactory state.^ laje n ei ran lefi Under the earlier acts,'^ the only remedy provided for levying lea taxes upon default in payment, was by distress and sale of tiflciud defaulter's goods and chattels. The 51 Geo. III., ch. 8, passed iBIietli 1811, provided,' that all lands held in fee simple, by Land Boai certificate, Order of Council, or certificate of a Governor of CanadB ^ should be considered rateable property; that the amount levic*'"'** should not in any one year exceed one penny in the pound ; ♦ ai that in default of payment, the amount should be levied by distr and sale of the defaulter's goods and chattels.^ Vic i cedi With the exception of an act** passed in 1798, which permitt the Justices of the Peace of a District in Quarter Sessions assembly to levy a rate for establishing stone monuments at Townsh boundaries, and to sell lar^ds for default in payment, the first i authorizing the sale of lands for arrears of taxes was the 6 Geo, II ch. 7, passed in 1825. Sui'veyor-GeneraVs Return. — The act passed in 1819'^ followl the 51 Geo. III., ch. 8, as to the lands liable to taxation, anclj enable the municipal officers to impose an equal rate, and to infoa them with certainty as to the proper lands chargeable tLerewij the Surveyor-General was required,^ on or before the 1st day] July, 1820, to furnish the Treasurer of each district with a listj schedule of the lots in every town, township, or reputed townslj of the district, as the same were designated by numbers, concessit 3S Geo. m c. 8 : 43 Geo III. c. 12 ; 47 Geo. HI. c. 7 ! 51 Geo. Ill, c. 8 ; 55 Geo. III. u. 6; sH III. c. 7 ; 59 Geo. tn. c. 8 ; Geo. IV. c. 7 : » Geo. IV. c. 3 ; 7 Wm. IV. c. 19 ; 1 Vic. c. 20; 41 Vic. c 10 : 13 & 14 Vic. c. 67 ; 16 Vic. o. 182 ; iO Vic. c. 183 ; 27 Vic. c. 19 ; 29 & 30 Vic. c.Mi 33 Vic. c. 23 : Out. Stat. 34 Vic. c. «. 12 : 47 Geo. III. c. 7 ; 61 Geo. III. c. 8. Stat. 32 Vic. c, 36 ; Ont. Stat. 33 Geo. III. c. 3 ; 43 Geo. III. c. 3 Sec. 4. 4 Sec. 6. 5 Sec. 8. 6 38 Geo. III. 7 69 Gen. III. 8 Sec. 12. t |orh' ited I fro irhe Ifon jilted liched ito € nshi Ichai ior .13. ti. |f«tv. 10«o.I a- E. ORDINARY CONTENTS OF AN ABSTRACT. 1297 ive andjudicia of property anl e followed eacl I varied in the^ a in an exceed id^d for levyin and sale of th , ch. 8, passed i }, l)y Land Boail vernor of Canadj he amount leviej the pound;* ar levied by distre which permits Sessions asserablj ints at Townsh jment, the first i as the 6 Geo. l| in 1819' follow! lo taxation, and Irate, and to intoj irgeable therewij ^ore the 1st day itrict with a list reputed townslj lumbers, eoncessiij ,; 65 Geo. III. c. 6; V.c.l9;lVlc.c.20;* io. 19 ; 29 & 30 »fic. C'i'' (Otherwise, on the original plan, specifying to whom the lot, or nyand what part of it had been described as granted by His lajesty, and whether the same or any and what part thereof was Dgranted, and also what lots were reserved as Crown or Clergy erves, or for other public purposes, and to whom such reserve tany part thereof had been leased ; and he was also, on or before lie first day of July in each and every year thereafter, to transmit [list of all lots or parcels of land, specifying the quantity granted t leased, since the last list furnished by him ; and^ all the lauds iuded in such list as granted or leased were liable to taxation hether occupied or not. ., . , By the 13 & 14 Vic. ch. 67, passed in 1850, the return ^ was to I made by the Commissioner of Crown Lands within thirty day.s er the first day of January in each and every year ; and by the iVic. ch. 182, sec. 48, the return was to include all lands in ect of which a license of occupation had issued during the Kceding year. |By the 27 Vic. ch. 19, passed in 1863,* unpatented lands vested held by Her Majesty, thereafter sold or agreed to be sold, or lated as a free grant, were made subject to taxation from the date grant, and all L formerly granted were made liable to taxa- ifrora the Ist of January, 1863. [The return of the Surveyor-General or Commissioner of Crown nds is the foundation of the whoi > proceeding for taxation of s* as no lands can be assessed which are not included in the «dule f and it forms the basis on which the County Treasurer '.formerly to keep an account for every parish, town, township fcuted township, or place within its district according to the list ichedule furnished by the Surveyor-General, in which account ho i to enumerate particularly every lot or parcel of land in each nship, reputed township, or place, according to the schedule, 1 charge or credit it for the amount of the taxes and rates pay- ! or paid in respect of it for each and every year;" and from lis. i. 39. ■ _ -i 9. mi. Upper V. Jidwards, 6 Q. B. U. C. 698. T«tv. Jfonro, 4 C. P. U. C. 3&. »0«o. III. 0. 7, a. 14 ; Peek v. Monro, 4 C. P. U. C. 363. 58 15 ,0 1298 PROCEEDINGS IN THE MASTER'S OFFICE. * which he is now to furnish to the clerk of each local municipali the information necessary for the guidance of the assessors as what lands are liable to be assessed.* Before the statute lequired the return to be made in JanuajyJ was held that land returned in June for assessment, was liable I the taxes for the whole of the current year.^ . Lancl held by a Crown Land Agent's receipt and not by pat lease, or license of occupation, and not occupied, was not, befJ the 1st of January, 1863, liable to assessment, though returned j the Commissioner of Crown Lands under 16 Vic. un. 182, s. 48J land to be assessed.^ , . . , ,,, »ijf' ;> ■ ^ - • Assessment. — A question has been raised, what is the assessing and by whom and when is it made ? In X( .ughtenhorough v. McLean* the Court of Common ?\ decided, that " the assessment is the rating which * u)ad3 upor. assessment roll by the assessor, and that it is conij.ic (»d whenl roll is finally passed. If this be so, then it follows that the en as made upon that roll is the assessment which is to govern, that all the other copies and entries ought to correspond with! primary roll and are only copies of and entries from it." The 59 Geo*. III. ch. 7, required-^ the Treasurer to keep an accq with eacli lot or parcel of land, and charge or credit it for the amo of the taxes and rates payable or paid in respect of it for each every year. . Where^ the rates and assessments upon any lot of land rerasjj in arrear and unpaid for the space of three years, tliey were i increased in the proportion of one-third ; if in arrear five yj then they were to be increased one-half; and if suffered to reij in arrear for eight years, the amount of the arrears was doubled, and the I'ates were thenceforth to be charged agaiiistj 1 13 At 14 Vic. c. 67 8. 39 ; 16 Vic. c, 182. s. 48 ; Con. Stat. U. C. c. 66. s. 100 ; 29 & 80 Vic. c St. i Out. Stat. 32 Vic. c)i. 36, sec. 100. 2 Doe d. Statu V. Sinilh. 9 Q. B. U. C. 068. 3 Stri'ci V. Kent, 11 0. P. U. C. 255 ; Street v. Sim^ue, Vi 0. P. V. C. 284 ; Street v. L«»»ti/(«,| P. U. C. 204. 4 14 C. P. U. C. 175. 6 Sec. 14. / 6 Sec. 16. i;Co ch. » 30 Vic. Mt»t. 3 >P.'J. ORDINARY CONTENTS OF AN ABSTRACT. 1299 /vr>.i( (.t ■ \'\ui ,t is the nssessmd tds by the Treasurer, and levied in double the amount that would nw due accordin^r to the existing rate or assessment. J ti,-. -.I-. |ln 1828, it was enacted/ that no greater accumulation than fifty r cent, should be charged upon any lands "on which the taxes iDuid be paid before the 1st of July, 1829 ; and thereafter fifty per fj, and no more was to be charged in all cases in which the taxes ained in arrear longer than five years, the 13 & 14 Vic. ch. 67, taxes accrued on anj'^ land were ^ a special lien on the land, having a preference over any II, lien or incumbrance of any party except the Crown, and one |ich does not require registration to preserve it, and which bears |jrest from the time the taxes become due, which interest is to be [led part of the taxes. he 16 Vic. ch. 182, required^ the Treasurer, on the 1st of May ch year, to complete and balance his books by entering against I parcel of land, the arrears, if any, due at the last settlement, I the taxes of the preceding year which may remain unpaid. If making of such balance it appeared that any arrear of taxes I due upon any parcel of land, the Treasurer was to add to the tie amount then due, ten per cent, thereon.* This was reduced ght per cent.^ in 1866, and again raised to ten per cent, in 1868.*^ lie ten per cent, on arrears of taxes was calculated on the whole at in arrear and due upon the land, and not merely on the at of each year's assessment. [(rUespie v. The City of Hainiltor/' the questic'U was raised her the ten per cent, authorized to be charged upon arrears of ^, should be added to the amounts in arrear in each year, inclua- he previous additions of ten per cent., or simply on the amount m then in arrear, and it was held that \t should be added to »hol« amount. Draper, C J., in delivering judgment said, " I ; the Legislature have used language very clearly indicating an I IV. ch. 3 sec. 4 in. U;Con. Stot. U. C. ch. 66, sec. 116. pic, ch. 182, gee. 53 ; Con. SUt. U C. ch. 56, sec. 1'21. fSOViaoh 6a, !*ec. 126. [8t»t.32Vic. ch. 3fl, HOC. 125. ^^P.ll.t. 486. PKOCEEDINQS IN THE MASTERS OFFICE. %> %.^ ,0 i: intention that ten per cent, should bo added eveiy year, calcub on the whole amount winch is in arrear and due upon the land the time the charge is made. In , the present case the lands v liable to satisfy a given sum on the 1st of May, 1862, which \ included taxes for preceding years, and ten per cent, added the at the preceding 1st of May. To that sum which constituted whole amount due on the lands, the statute, as I read it, dir that ten per cent should be added." By the earlier acis the amount of taxes which could he chai in one year was limited. The 51 Geo. III., ch. 8, sec. 6, provided that the sum levied shij not exceed, in any one year, one penny in the pound. By the 59 Geo. III., ch. 7, the Justices of the Peace in Qua Sessions were* not to raise more money than was required forj fraying the public expenses of the District, and this was apportioned among those " who were named in the rate roll ;" did not include the non-residents. Where the Quarter Sessions did not assess certain lands, bu^ Treasurer left blank columns in his books for certain years,! charged of his own authority, at indefinite times, the maxiq charge of one penny in the pound, under tho idea that the sti had imposed that sum, which was generally known as the wild I tax, on all lands, a sale for the aii'ears of such taxes was void.^ The 59 Geo. III., ch. 8, enacted,^ that all unoccupied lots should be rated one-eighth of a penny per acre annually toi« defraying the expense of making and maintaining roatls, andi case just cited, the sale although made to satisfy such rate held void, because illegal rates were included in the amount fon the land was sold. By the -i & 5 Vic, ch. 10, sec. 41, the amount which coulj msed by assessment was made two pence in the pound, disti'ict purposes one penny half-penny in the pound. 1 Sec. 7. 8 Cotter V. S%Uh«rland, Itt C. P. U. C. 402. 3 Sec. S. OFFICE. very year, ealcul lue u\)on the land! , case the lands Lay, 1»62, which ler cent, added thej which constituted' as I read it, dir rhich could be chaJ it the sum levied sh(| to pound. : the Peace in Qui( m was required for j Lct, and this was d in the rate roll ;" iss certain lands, buj s for certain years, te times, the maxii| ihe idea that the sb known as the wild] of such taxes was unoccupied lota ofl acre annually to^ |itainingroads,andii latisfy such rate alsoj [din the amount for T* amount which couj in the pound, m the pound. 3 Sec. 3. ORDINAflY CONTKNTH OF AN ABSTRACT. 1301 cessment under this act of so much per acre, instead of on [issessed value, has been held illegal.* here the Surveyor-General returncMl a tiact ol laml as a single |it has been held that it niust be assessed as one lot, though half [may be in one concession and half of it in another,^ and where iral lots are included in one grant, but dt!Hcril)ed by separate hbers, a portion of each lot must be sold to j)ay the taxes due 1 such lot, and not a portion of the whole block, beginning at |t)Oundary from which the lots a:"^ numbered, for the taxes due I the whole." isurer'a Meturn of Landn in Ar 'ear. — By the 6 Ueo. IV., in 182.5, provision was made " for levying under certain kictions, the assessments which may remain in arrear, by the |ofa portion of the lands on which the same may be charged." at act provided* that the Treasurer of each District should at liiext Quarter Sessions after the 1st of July, 1828, present to the Ices ill Quarter Sessions, an accurate account of all lands in the pet upon which the assessment or any part thereof was in for the space of eight years, s[)ecifying the lot or parcel of Iby number, concession and township, or otherwise, as the same ed in the schedule furnished to the Treasurer, and also^ the nt due for assessment thereon ; and should also at the Quarter jbns next after the 1st of July in each year thereafter furnish a laccount. i Treasurer Was also," within one mont'i after rendering his at, to insert in the Upper Canada Gazette, and in some public aper in the district, a list of all the lots returned by him in count, as liable to sale, and if no newspaper was published in trict, he was, within the same time, to affix a list in some ficuous place in each township. the 13 & 14 Vic, c. 67, passed in 1850, the Collector, if any 1 remained unpaid, was required,^ when returning his roll, to »' |4 MtQm V. Langton, 9 Q. B. U. C. 91 ; WiUiamn v. Taylor, 13 0. P. U. C. 219. T" (-^ppe V. EdwardH, 5 Q. B. U. C. 594. F'v. tfrj,,, 12 a B. U. < •. 6i7 ; McDmmld v. Robilard. 23 Q. B. U. C. 105 , Ridout v. Ketckum f'f- 1". C. 60 ; Black V. Harrington, 12 Grant, 176 ; Christie v. Johnnton, 12 Grant, 534. 5 Sec. 6. Sec. 9. 7 Sec. 42. n ■ i 1302 PUUCEKDINGS IN THK MASTERS OFFICE. deliver an account of all the taxes remaining due, showing opposj each sei)arate assessment the reason why he did not collect same, by inserting " non-resident," or, " no property to distrain,'] make oath that the sums mentioned in the account remained paid, and that he had not by diligent enquiry been able to disco^ any goods or chattels upon which he could levy ; and such accoij was made suflScient authority for the Treasurer to proceed to i the lands. M.. <». The Trchsurer was thereupon^ to enter in a book kept for purpose, a copy of the roll so far as it related to the lands of nl residents, together with the taxes charged upon such lands ; andj was within one month after receipt of the roll to address a circij letter through the post to the owners of the several lots stating amount due, and calling for payment, and if he was unablej satisfy himself as to the owner of any lot or where he resided was to put in the Official Gazette a list of the lands, setting the total amount due on each lot, and calling for payment ; ing to the land the expense of publication. *'.\!-' i(t-,i.rti,i-,, The act also required^ the Treasurers of Counties, on or the 1st of January, 1851, to make out and submit to the Municj Council of the County a list of the lands in their respective cou on which any taxes remained unpaid, stating the number of i in each lot or part lot, the number of years for which it arrear tor taxes and the amount of taxes due, together withj names of the owners so fai" as such Treasurer had been abl| ascertain them, and the amount of such arrears were to be i to the assessment roll for 1K51. A sale under this of occupied! as non-resident has been he d illegal.^ The 16 Vic, c. 182, s. -tT, required a similar return of lan(i| which the Collector had been unable to collect the taxes, made to the Township Treasurer, and it was made* the duty ( latter oSficer to return a correct copy of the roll to the Cq Treasurer. , ,/ ■ .;"•—"•■ I fact frit fbefo ».66; IM. 1 Sees. 43, 44 2 Sec. 4,6. 3 Street v. FogxU, 32 Q. B. U. C. 119. 4 Sec. 49. |l3Gr» mro 1 ORDINARY CONTENTS OF AN ABSTRACT. 1303 By this act' the necessity for a return to the County Council of in arrear for taxes, as a preliminary to their sale, seems to kve been done away with, and the Treasurer was empowered henever a portion <^f the taxes had been due on any lot for five 8, to issue a warrant for sale by the Sheriff, but the Council lid direct that no warrant should issue until some portion of the irs were due for a period longer than five years. [This course continued to be pursued until 1866, when the 29 & Vic, c. 53, which substituted the County Treasurer for the briff as the officer to sell lands for arrears of taxes was passed. Jiis act requires^ the Treasurer to submit to the Warden a list in plicate of all lands liable to be sold for taxes, with the amount of ars against each lot set opposite the same. To each of these I it is made the duty of the Warden to affix the seal of the Cor- ation and his signature, and one of them is to be deposited with i Clerk of the County, and the other returned to the Treasurer, a warrant annexed under the hand of the Warden and seal of ! County, commanding him to levy the arrears. |1q an ejectment suit by a purchaser of land sold for taxes under eo. IV., 0. 7, it has been held^ necessary lo prove that a return made of the land having been the proper time in arrear for ^ee, and that the writ to sell was grounded on this return. be books of the Treasurer showing the land :o be in arrear, are cient proof of the fact of arrear, but it has been doubted whe- the warrant to sell would be so ;* and that the taxes were in tin arrear for the proper time.^ An extract from the Treasurer's kks showing the taxes to be unpaid, is not sufficient evidence of Ifact.« Mt to Sell. — By the 6 Geo. IV., c. 7, upon the Treasurer' lay- fbefore the Quarter Sessions the list of lands in arrear for taxes, (fas made^ the duty of the Clerk of the Peace in each district to 1. 66 ; Con. Stat. U. C. ch. 65, aa. 123, 124. ilM. Id. Bell V. Reaumore, 3 Q. B. O. S. 243. I«8v, mi 22 Q. B. U. C -578 ; 2 Er. & Ap. 569. »«d. Upper \.EdH>ar Q. B. U. 594; Doe d. Sherwood v. Mathnson, !t q. B. U. 0. 321 ; Ihrbouriie v. Bounhey, 7 C. P. U. C. 464; Errinnton v. Dumble, 8 C. P. U. 0. 65 ; Allan v. fUher, 13 C. P. U. C 63 ; Myers v. Drown, 17 C. P. U. C. 307 ; Jonen v, Bank o/ Upper Canada, 1 13 Grant, 74. )V. 6r«j/, 12Q. B. U. C, 647. 7 See. 6. 8Se«. 7. ,0 5 1304 PROCEEDINGS IN THE MASTER'S OFFICE. make out a wanaut lor levying the asHessment due, specifying [i the writ the particular lot or parcel of land, and the amount doj thereon, which warrant was to be signed and sealed by the Cler of the Peace, directing the Sheriff of the district to levy the amouni therein stated to be due, together with certain fees imposed by thl act, by sale of such portion of the lands and tenements upon whici the assessments were chargeable, as should be sufficient for thai purpose, provided there was no distress upon the lands from whicfl the same could be made, and if there was such distress,, then to levi the same by sale of the distress. This^ writ was to be made returiij able at the third Quarter Sessions after issuing the same, and thj Sheriff was directed to have the moneys levied under the writ the said Court. , ^ ,, ; :^^..,-.i :,, >. ,,:, ;i,, ■■„:>:, ,p ^.*/ .,:> '^.ps, j.:-^ The writ to sell continued to be issued by the Clerk of the PeacJ until 1850, when the 13 & 14 Vic, c. 67, enacted,^ that the Countj] Treasurer should, within thirty days after the Collector made hi/ return, issue a warrant under his hand and seal directed to th^ Sheriff of the County, commanding him to levy on the lands non-residents for the amount of taxes remaining due thereon anij his costs. The 16 Vic, c 182, s. 55, empowered the Treasurer to issue m warrant whenever a portion of the taxes on any land had been dw for five years.3 Since 1869 the sale may be whenever a portion o| the taxes 1 een in arrear for three years.* ^, ., . -.n' In the warrant, the Treasurer was required^ to distinguish sum lands as had been patented, from those which were under a leasj or license of occupation and of which the fee remained in thj Crown, and this continued to be the case until 1866.^ The 29 &< Vic, c. 53, s. 129, contains no similar provision. ,^ ,..., •,,, ,^^..- , j^„ The writ to sell must be founded upon the Treasurer's retumi and it must be under tl. e seal as well as the signature of the propel officer, and if not sealed, all sales under it are void.^ .6«f\ 1 Sec. 8. 2 Sec. 48, 3 ;Con. Stat. U. C. ch. 6P, aec. 124 ; 29 & 30 Vic. ch. 63, ace. 129. i 4 Ont. Stat. 32 Vic. cb 86, sec. 128. 6 16 Vic. c. 182, sec f J , Con. Stat. U. 0. ch 65. sec. 126. 6 Doe d. Bell v. Rea anore, 3 Q. B. O. 8. 243 ; Ernngton v Dumble, 8 C. P. U. G. 66. 7 Morgan v. Queb,U, 26 Q. B. U. C. 639. T ( . ORDINARY CONTENTS OF AN ABSTRACT. 1305 A mistake in representing the taxes as due from the 1st of July, ||820, to the Ist of July, 1828, in place of from the 1st of January I the 1st of January of these years, has been held not important, he taxes being in fact due for the full period of eight years.* A writ issued in 1837, and postponed by 1 Vic. c. 20, was held [iroperly acted upon in 1839.^ The omission, since 1853, to distinguish, in the writ, whether the [ids were patented or under lease or license of occupation, has been leld fatal to it f and to a sale under it ;* but describing the lands " all patented," ^ or, as " all deeded," ® is sufficient. Describing lands to be sold, in a schedule which is incorporated with the arrant, so as to be a part of it, is sufficient. The writ should show particular land that is to be sold ; there being confusion and bttbt in this respect will avoid the sale ;^ but if the identity can be iblished it is sufficient.^ I The writ can issue only after the full period is past for which the nd can be sold.® Thus were the first year's taxes were imposed by |by-law passed in July, 1852, but the collector's roll was not de- mod until after August, 1852, a sale under a Treasurer's warrant kted 10th July, 1857, was held invalid." Where a new county is created, and taxes become due to it, and xes are also and were due before the separation, the writ to sell to the Sheriff (treasurer) of the new county to sell fur the ar- due both counties. *^ I Diitresa. — In the case of sales under the earlier tax acts it is ssary to show that there was no sufficient distress on the pre- ,12 '^ ^' \ Under the 6 Geo. IV., c. 7, s. 7, the warrant to be issued by the lerk of the Peace directed the Sheriflf to levy the amount due, by md.Statav.SmUh,9q.B.V.C.e6S. [Toid V. Werry, 16 Q. B. U. C. 614 ; Hamilton v. McDonald, 22 Q. B. U. C. 236. f tfatt V. HUl, 22 Q. B. U. C. 678 ; S. C. 2 Er. .^ Ap. 669 ; McAdie v. Corby, 30 Q B. U. C. 349. \ Brooke v. Campbell, 12 Grant, 526. fCooir V. Jones, 17 Qrant, 490. \Mlv.HlL22 Q. B. U. C. 678. I Tovmend v. Elliott, 12 C. P. U. 0. 217. mDonnell v. McDonald, 24 Q. B. U. C. 74. \My V. Macklem, 14 Grant, 29. Imtwr V. MoPheraon, 18 Grant, 607, and see Ford v. Proud/oot, 9 Grant, 478 ; Bell v. McLean, 18 \ C. P. U. C. 416. [md. Mountcashel v. Qrover, 4 Q. B. U. C. 23. f i)w d. Bell V. Eeauinore, S. Q. B. O. S. MS ; Doe d. Upper v Bdtoardg, 5 Q. a U. C. 694. !:■!'.' "9. 15 ,0 I :J0(> PROCKKIUNdS IN THK MASTER'S OFFICE. Hale of such portion of the land as should be sufficient for thai jxu- pose, provided there was no distress thereon from whieli the saine I could be made, and if there was such distress, then by sale of the | distress, •••i . : ■ . n - - .- ^c -..>,-.|-, » ,.,- w.-,- ■...-.^ .». », w.-^Av^m The Sheriff was not obliged to look for a distress on the land be- tween the time he first offered it for sale, and the time when an adjourned sale was had, and a distress in fact being upon the land between these two periods did not invalidate the sale.* The old law as to the omission to distrain invalidating a sale seems to have been ( altered by the 13 & 14 Vic. c. 67." " - '• ' I.' .!'( ii:n> ■i'_;'.''ll,'i ' The 16 Vic. c. 182, enacted* that it should be lawful for the Trea- surer, whenever he should be satisfied that there was a distress upon I the lands of non-residents in arrear for taxes, to issue a warrant | under his hand and seal to the Sheriff, who should thereby be autho- rized to levy the amount due upon any goods and chattels found j upon the land, in the same manner, and subject to the same restric- tions, as referred to distress made by a Collector.* The 58th section required the Sheriff, if at any time after thel receipt of the warrant to sell, he had good reason to believe that! there was a distress upon any parcel of land included therein, tol levy the arrears of taxes and the costs by distress and sale of anyl goods and chattels found on the land. To this section a proviso was! added that no subsequent sale of any such parcel of land by thej sheriff should be held illegal or invalid by reason of there havir been any goods and chattels thereon before or at the time of thd sale, and the Sheriff having neglected to levy the tax by the distre and sale of the same. * * .-•,.. .^v- ^. • J/.! ^H^J-\|%. The 27 Vic. c. 19, passed in 1863, provided** that the TreasureJ and Sheriff should not be required to inquire before sale of land foj taxes whether there was any distress upon the lands, but the mon recent statutes^ contained a provision as to the Treasurer similar I that contained in the 16 Vic. c. 182, s. 54, except that the warrani 1 UamUton v. McDonald, 22 Q. B. U. C. 186. 2 Hamilton v. McDonald, 22 Q. B. U. C. 136 ; McDonnell v MeDmutld, 24 Q. B. U. C. 74. 3 Sec. 64 ; see also Con. Stat. U. C. ch. 56, sec, 122. '. ''' . ' 4 Sees. 42, 43 and 44. 6 See. 4. '"■ - ■ ' 6 29 & 30 Vic. ch. 63, see. 127 ; Ont. St&t. 32 Vic. c. 36, sec. 126. See Snyder v. SMbUy, 21 C. P. Ul C. 618. ORDINARY CONTENTS OK AN AUSTRACT. ia()7 issued by the Treasurer is to be directed to the Collector of the loeal municipality instead of to the Sheriff, u w^; ^ -, i * | Section 4 of this act covers all errors as regards the purchaser at a tax sale, if any taxes, in respect of the land sold, had been in arrear for five years; and this applies where an occupied lot has been assessed as unoccupied.^ It was not made the duty of the Treasurer to search for a distress on landi ; but if satisfied that there was^adistress.it would bo necessary to allege and prove that he liad notice of the distress.^ Even the neglect of a collector whose duty it was to search for distress, has been held not to invalidate a sale subsequently made of the land for arrears which might in whole or in part have been satisfied by such distress.^ The old law was otherwise, especially if it could be shown that there was a sufficient distress upon the land at the time of the sale. ^ ,<, -. IMAGE EVALUATION TEST TARGET (MT-S) 1.0 1^1^ ta m lU 122 ly ■ !.l £ Hi 12.0 !■■ I'-* 11^ FhotogFapiiic Sciences Corporation 23 WIST MAIN STMIT WnSTII.N.Y. )4StO (71*)t72-4S03 ^^'^U ^v^ ^ ^ ) A%<^ ^ IS .0 1308 PROCEEDINGS IN THK MASTERS OFFICE. known to the Sheriff, with the total amount of taxes asse88c■,! .Ml. I Under the recent acts^ the advertisement issued by the County Treasurer, who is now the officer entrusted with the sale of lands for taxes, is to contain similar information as to the amount of arrears, a notification that the lands will be sold on a given day unless these are sooner paid, and to distinguish the lands as patented or unpatented. In addition the advertisement is to state in a sepa- rate column the proportion of costs chargeable upon each lot for advertising, and for the commissions allowed to the Treasurer. The advertisement is by these acts* to be published four weeks in the Official Oazette, and once a week for thirteen weeks in some newspaper published in the county, or in an adjoining county, as the case may be. It is also expressly enacted^ that the day of aale shall be more than ninety-one days after the first publication of the list J2S«-W- „. . 8 860.66. 8Seo.67. S S^?^,5? VS: "*'• "• •*"• *"' *3* ; Ont Stat. St VIo. eh. 86, mm. ISt. 1S8. V tNXM. Isz, 188. 7 SMi. 184, 186. 4 Cms. 57. ORDINARY CONTEXTS OF ABSTRACT. 1309 tlJE X5>« V' -»' This section was probably introduced on account of the doubt raised in the case of Connoi' v. Douglas.^ In that cane it was held by the Chancellor (and afterwards approved by the Court of Error and Appeal) that publication in the Canada Gazette for thirteen weeks, from and including the 1st of August, to and including the 24th October, 1857, though not an advertisement for three months, which would have required the advertisement to be continued till and to include the 31st of October, did not render the sale* invalid. In Jarvia v. Brooke,^ it was held that the omission to advertize the sale in the county local paper, the advertisement being regularly published in the Official Gazette, did not invalidate the 'sale. This decision was arrived at because such an omission would not, on common law principles, avoid a sale under execution. ^' ' ■ ..: ■ '*,..' ■ ' '•■' ' ■■' ■ ■• The Court of Common Pleas, however, in WUliariM v. Taylor* held that the omission to advertise in a local paper under the special provisions of 16 Vic. c. 183, ss. 7 and 8, avoided the sale, saying, "The omission of either of these advertisements interposes an insuperable obstacle to the application of the remedial portion of the act in favor of purchasers at such sales." In the later case of Hall v. HUl,* the Court of Queen's Bench, speaking of WUlicmia v. Tayloi', said, " That decision though under a different statute was upon a case very analogous in principle, and if it were necessary for the decision of this case, we should as at present advised, arrive at the same conclusion. s Sale. — By the 6 Geo. IV., c. 7, no* sale was to take place in less than six months from the delivery of the writ to the Sheriff, nor was any sale to be made out of the township in which the land was situate, unless the township was so thinly inhabited as to have no meeting held within it for the election of parish officers, in which caae the sale might take place in the township to which the same ntight be annexed for the purpose of holding its annual town meeting. 1 IS Qruit, 4fi6 : and Me MeLaugMin v. Pyper, 29 Q. B. U. C. 6M. J u o. a b. c. a». iwo.p. u. c. n9. 4aQ.B, U.C.SV8. I -je^ 6 8«J. 11. i»* 1310 PROrEEDINOR IN THE MASTER'S OFFICE. The^ mode of selling was to he by public auction, and the aasess- ment in arrear and the expense attending the writ were to be declared, and the pers^m who offered to pay the assessment and expense for the least portion of the lands was to be considered the purchaser. , i ' ■ • -.11 #,■. . J .... . . ■.,!,. . . ■ I !i . II f» ' .1 .S'r ' r . ., In selling, the Sheriff was to expose the lands for sale in the following manner :^ " He shall begin at the fi'onl angle on that side from whence the lots are numbered, and measure backward, taking a proportion of the width con-esponding in quantity with the pro- portion of such particular lot, in regard to its length and breadth, according to the quantity required to make the sum demanded; and at every subsequent sale of a portion of the same lot or parcel of land, under this act, shall proceed to take a tract of equal width as the former measuring backward from the limits of the tract last sold." Where the Sheriff could not, from the position or descrip- tion of the land, pursue the mode pointed out above, he was to sell such portion of the lot as appeared to him most for the interest of | the proprietor.'^ He had also* power to adjourn the sale frofti day to day, giving public notice thereof, and if any person did not pay the amount of his purchase on the day of sale, the Sheriff could re-sell on any other day to which the sale was adjourned. -''^* ' Several alterations were made in 1837, by the 7 Wm. IV., c 19. The sale*^ of lands for arrears of taxes was to take place in the To\ni in which the General Quarter Sessions for the District were held, < on the second day of the sitting of the Court, at or near the Court { House. J-'m'' >(fi\0o8r -v/I -ji' •. su .I'i . , • ct ..(4 \\.i\ •((.') Hop t/iij ('•(> hi The land was to be put up for sale at an upset price of two shil- 1 lings and sixpence an acre, and if there was no bidder at that rate, then the Sheriff was to proceed according to the foimer aot,^ a^ the next Court of Quarter Sessions after the expiratioi:^^ f|f ^ t^e six months' notice required by law. ,. , , , /^ ,, ^ „ The fifth section made it lawful for the SheriH' to put uj) ^ adjudge to the purchaser such part of the lot as he might in hisj discretion think best for the interest of the proprietor. ';'"^^'^"^^j*-;^,, 1 Seals. 5 S«m:. M. 6 Sac. 1. 8 Bee. U. 4 Sec. 10. 6 0«>. IV.. cb. 7. . K..' ,-.. ,1.0 ,».'/ .iV i.V.t ORDINARY CONTENTS OF AN ABSTRACT. 1311 The 13 & 14 Vic, c. G7, required the» Sheriff' to sell by public auction so much of the lands as should be sufficient to diHchargu the taxes, with the interest thereon, and all lawful charges incurred in and about such sale and the collection of the taxes, selling in preference such part of the land as he might consider it most for the advantage of the owner to sell first. The 16 Vic, c. 1S2, con- tuned' a similar provision. iJ Ji i^i;;»J i.i'.iV.' u . Where the Sheriff sold land of which the fee was iu the Crown, I he was to sell only the interest therein of the lessee or locatee.^ The recent acts^ which substitute the Treasurer for the Sheriff' as I the officer who is to sell lands for taxes, contain provisions exactly the same as to selling such part as the Treasurer may consider best for the owner to sell first. These acts further declare that, "In offering such lands for sale, it shall not be necessary to describe particularly the portion of the lot which shall be sold, but it shall be sufficient to say that he would sell so much of the lot as shall be necessary to secure the payment of the taxes due." This clause I was probably inserted because V. C. Mowat had held^ it necessary I that the Sheriff should state to intending purchasers what portion lofthe lot wai> being offered for sale. ^,.^i '■I.. I ;Ut lltl .!lt OiJMi a UJ:»' Where the warrant to sell contained two entries of taxes due on ie same lot, and the Sheriff on one day sold the land for the taxes leniered as due for 1858, and a month after, at an adjournment of [the sale, sold the same lot to another person, for the taxes entered |is due for 1859, the Court set aside the first sale because at it the Sheriff did not sell for all the taxes due on the lot, but for a portion loDly. The second sale was also declared void because the Sheriff llftTing previously, at the same sale and under the same warrant, liold the land, he could not sell it again to another person.^ The JCourt distinguished the case just i-eferred to from Mills v McKay, ^ rhere a sale having taken place in 1865 for arrears of taxes extend- frpm 1S59 to I865,another sale took place in 1866 for the taxes llStcSS. ' ^'^^J^' ^■'-- "'^ ' ■ ^■»''V . ^■ S Sac. 69 : and M* Ooa. Btak U. 0. eh. 6Cr aM. 117. > M Vic. oh. 182. see 66 ; Ck>n. SUt U. 0. ch. 56, sec. 138. t a * 80 Vio. ch. 68, Mtt. 130 : Ont. SUt 82 Via oh. 36. sac. 138. i Knaggt v. Ledvard, 12 Grant, 820, and SM Grant v. GUmore, 21 0. P. U. C. 18. < >/ t^ y- i Stlmti/fr T. Lundy, 20 C. P. U. 0. 448. -^ ' iV 1» JUOv».t,l92. "«■' ■ w (5 1312 PROCEEDINOR IN THE MASTER H OFFICE. of 1868 which had been overlooked at the time of the first salej V. C. Mowat held that the first sale must prevail, on the ground that the Legislature did not intend to allow Municipal Corporation^ to make successive sales for parts of the taxes in arrear at one tiinej The sale of a whole lot which lay in two concessions, for arrear of taxes alleged to be due upon one half, has been held illegal, because there was no such distinct half to be assessed.^ The assessment should ha-ve been on the whole lot. "*'' ^"^*'"' A sale for a total charge of £5 lis. 8d., of which only f\ Ss. ha been legally imposed was held to be wholly void ;* but the rate being separable from the bad, held not to defeat a distress in toto.* In Allen \. Fisher *'hovrever, Draper, C. J., though he consider he was bound by the auth itie& on the point, said, " I have felti difliculty in holding a sale entirely void, on the ground that th^ amount directed to be levied was larger than was properly due." The statutory provision requiring certain rates to be kept sej rate on the Collector's roll is directory only, and where the directioJ had not been observed, a sale for non-payment of taxes was hel^ valid notwithstanding.'^ ...,•...«< A purchaser procuring the whole lot to be knocked down to bin by requesting the bystanders not to bid against him as he want to confirm his title by purohasing'*it in, acted improperly, and th sale so conducted is void.* In Henry v. Bumesa,'' where the conduct of the SheriflT in sellin the whole of a valuable lot of land for a trifling amount of tax^ was impeached, counsel ' contended that the Sheriff could not taken to know the value of a whole lot necessarily so greatly eii 1 S«e Doe d. Upper v. Bdwardt, 6 Q. B. U. C. 604 ; Mmm r. Ony. 18 McDonald y. RobiOard, »Q. B. U. C. 106 ; LauaMimhonmah f. MeL RUUmt T. Eetehum, 5 C. P. IT. C. 65 ; Blaek v. Oarringtoti 18 Orant. 1 , O. a U. C. M7 ; _ McLean, U C. P. C C \% »nt. 176 ; Chriatie v. JoIm IS Gnnt, Mc. 634. 8 8m Dm d. JfoOfll V. Langton,9Q.B.V.C.n;Irwinv. Harrington, ltQn.nt,Vn,tMiy»tTili r. Matt, 1ft Onuit, 886 ; JMin»unA Li/e Amunuue Oo. ▼. Feratmn, 38 Q. & U. 0. m. S Corbet ▼. Johniton, 11 0. P. U. C. S17. 4 U 0. P. U. 0. 71 ft Coo* V. Jonee, 17 Oraut, 488. • IWtfT. ir«rrv. 16Q. &U. C. 614. — , -.^ 7 8arMit. 846. -'S»i ORDTXARY CONTENTS OF AN ABSTRACT. 1313 rear at one iiineJ »»t -Uf' !»«».;':'*' jeeuded the arrears of taxes that a Hale of the whole was improper. JBat V. C. Spragge said* " This implies that the Sheriff is not bound Ito acquaint himself with what he is selling ; that he may remain Iproperly ignorant of the improvements, the -quality of the soil, and lof every particular beyond the number of the lot and the assumed Luantity. I by no means concede that he can properly be ignorant lof these particulars ; he has peculiar facilities for becoming ac- Iqnainted with them, and if he had not, still if it be his duty to sell (for the best price, as I take it to be, he cannot discharge that duty fso utterly ignorant of what he is selling as not to know whether ; is worth £2 10s. or £500. Besides, the statute, in making it the aty of the Sheriff to sell not only as little as possible, but that art which is the least injurious to the land-owmer, seems to con- template his making himself acquainted with the land he is selling." In that case, combination among the purchasers was also relied I as a ground for setting aside the sale. On that head the learned iTice-Chancello' said, " I do not mean to say that actual combina- m is necessary to invalidi^te such a sale. The prevention of com- ition by a^y undue means, I apprehend, would be sufficient HUSO against public policy, and a fraud upon the sale."^ .^^ ^,, I Where the w rit to sell was delivered to the Sheriff when in office, fit he did not sell till he was out of office, the sale was held invalid, ^it was not shown that he had while in office, begun to act upon I It has been doubted whether land, improperly assessed as non- udent land, when it was in fact occupied, can be legally sold for are.' -•■),>• I t.« ,•:!»(»»« ■jui [Where taxes are due to an old county, and taxes become due to w county after separation, the sale for both airears should be le by the Sheriff of the new county where the land lies.'' tnn |Paj/m«nte. — None of the acts in express terms authorize tho to receive pa3rment of the taxes in arrear after receipt, of the Unryv. fiumcM, SOrsnt, 867. I«e »lio Davii v. Clark, 8 Gnuit. 858. IMaion V. MeDmiatd, 26 Q. B. U. C 464. " ^ yjlM V. Finher, 18 C. P. U. C. 68. -* \'>^i.MouiUeaihelv.Grm>er,4q.h.V.C.2S. 59 1314 PROCEKDINGR IN THE MASTERS OFFICE. warrant to sell. The 53rd section ot the 13 & 14 Vic, c. 67, directs the Sheriff to sell, " if no person shall appear to pay the taxes atl the time and place appointed for the sale." And in the subsequent! acts,^ the words used are, " If the taxes shall not have been pre- viously collected, or if no person shall appear to pay the taxes atl the time and place appointed for the sale." These expressionsl imply that the Sheriff may receive payment, and accordingly it hasl been held that a payment of taxes to the Sherifi', while he had tlie| warrant to sell, is good.^ After the sale takes place, the owner has still a period allowed for redeeming. This was at first twelve months,' then it was ex-j tended to three years,* and again reduced^ to " one year from tha day of sale, exclusive of that day," at which it has since remained.'' After the sale of a whole lot for taxes, the Treasurer may receivej payment of the taxes in redemption of a part of it, if the lot ha been in fact subdivided, and the Treasurer determines in good fait that such part was a distinct division.^ « ^., If the Treasurer can take notice of land granted, though not turned as i^uch, he must take notice of the particular part of the lots granted, and he must apply the payments made to him on the pa so granted.^ «♦-'«) -ii (1. Hi .."»,. .-i ; 1 J V- m DescHption of lands. — The 6 Geo. IV. c. 7, having fixed thj manner in which tha Sheriff was to ascertain the exact portion sow by beginning to measure it from a given point and taking a prii portionate width of the lot, a description of thirty acres of Lot 13 &c., to he Tneaaured according to tJie statute, has been held a sufficien description.' . j.f 1 1 \,ii tf ;w! f.i.. II., A .tti i . .'rt The subsequent act 13 & 14 Vic. c. 67, which required the Shed to sell the part most advantageous for the owner, provided that |For 1 16 Vio. ch. 182, aec. 69 ; Con. Stot. U. C. ch. 56, aec. 187 : 20 & 30 Vic. ch. 63, 8ec 1<^ ; Ont i 38 Via. ch. 30, aec. 18& 2 Doe d. Sherwood v. Mattheam, Q. B. U. C. 821 ; Jaroi» v. Caytey, 11 Q. B. U. C. 289; Jamil Brooke. 11 Q. B. U. C. 299. -^ i 3 Geo. IV. ch. 7, 8ec. 18. 4 IS & 14 Vic. ch. 07, aeo. 64. 6 Iff Vic. ch. 182, sec. 04 ; Con. SUt U. C. ch. 66, sea 148. 6 29 A 80 Vic. ch. 63, sen. 149 ; Ont SUt. 32 Vie. ch. 30, sec. 148. 7 Payne v. Goodyear, 26 O. B. U. C. 448 ; Brooke v. Cam^U, 12 Grant, 626. 8 Peek V. Monro, 4 C. P. U. 0. 308. 9 Frauer v. Mattiee, 10 Q. B. U C. 160 : Mclntyre v. 0. W. Railteay Co., 17 Q. B. U. C. 118. |8ec hk VtD, r, \Stiu prya :*; ORDFVARV CONTENTS OF AN ABSTRACT. 1315 jiuuld state distinctly in the certificate to be delivered to the iirchaser, what part oi" the lot wt« sold, or that the whole lot was jold, as the case might be ; and the deed given to the purchaser was^ ) deBcribe the land by its situatio i, boundaiies and quantity. -> > i''viitwWOf,if«' »ro-» Iff /)rt "ti 'f*. li'.t'-tnMfif) r'iif'-<< I In the 16 Vic. c. 182, ss. 59 & 65, ihe words used as to the certificate i deed are the same as those in vhe 13 &; 14 Vic. c. 67, ss. 54 &> 57. The more recent acts" require tha Treasurer to "give a description the part sold with sufficient certiinty, and if less than a whole i, then by such a general desoript .on as m^y enable a surveyor to ky off the land sold on the ground. ' ii m -«>' -».i'r -jmiu'i i i I A description of the land sold fcy the Sheriff as "eighty-nine es of the south part of Lot twenty-five, &c." would be insufficient, want of the proper boundaries defining the precise locality.' a sale of land for taxes, the only description of which in the surer's warrant and Gazette, was " Pt of S. pi 111, Ist Con. Tay., acres," could not be supported.* The designation " N. or W. i f,"has been held sufficient.* And since the Ont. Stat. 32 Vic. ch. , sec. 138, a sale of 89 acres of a particular lot has been held suf- tieiit.« ■ ■ :'. :'■"'' ' ' " -' '■ " ■ ■■'■ " '■'■ me Deed, — Where lands were sold under the 6 Geo. IV. c. 7, but ^deed was made of them while that act was in force, it was held tt no deed could be made after the repeal of the act in 1851, as no pvision was made for such a case,^ and the same thing was aded as lo sales made under 13 & 14 Vic. c. 67.* A deed may be made by the successor of the Siieriff who sold.® Vi Formerly no time was limited within which it was necessary to required the SheriBister a deed of land sold for taxes, but it is now necessary to , provided that ster it within eighteen months after the sale. '^ The same acts l«ec&7. ch. 53, sec 139 : Ont '"■jj^jQ-yi^. ^^ ^^ ^^ ^^^ . ^^^ g^^^ 32 Vic. ch: 36, sec. 14«. !i.-. I , /^ 11 n n 9Hf JamMhDmnell v. McDonald, 24 Q. B. U . C. 74 ; see aUo Taylor v. Foster, 26 Q. B. U. U 400 ; Knaffitx 1 Q. B. u ^-- «. . H J i^ji^^ 12 Q^nt 320 ; Fnuer v. Mattiee, 19 Q. B. U. C. 150. ,,' ^ ,. ^.. ,, ,. ■SmiX V. OUinour, 21 0. P. U. 0. 18. ..j' ^ I, vf " , ■Sfeirart V. Ta^gert, 22 C. l». U. C. 284. , . ^. .,a,^' „" V- V, * - Vtficart V. TMoert, 22 C. P. U. C. 284. |«T«nt V. urn 23 O B. U. C. 96. IcDonaldv. McDoneU, 24 Q. a U. C. 424. '428 Vic. ch. 2, sec. 43. »Vic. ch 24, sec. 57 ; Ont. SUt. 81 Vic.lch. 20, nee. 68. kiU lis: VI '» t4, '% ft .0 1310 PROCEEDINGS IN THE MAHTER's OFFICE. require all deeds on tax sales, before the passing of the acts, to registered within one year after the passing of the acts. In the case of Cotter v, Sutlierland} an objection was taken whicl^ the Court said struck at the root of every tax sale resting upon I'ate imposed before the General Assessment Act of 1850, and inJ validated every one of them. This objection was that no Court oi Quarter Sessions ever imposed a rate of any kind upon wild lands but that the Treasurer of his own motion charged every wild lotonJ penny in the pound of its statutable value under the idea that th^ statute directly imposed that tax upon the land. In the same case many points of importance were decided foj more particular notice of which reference must be made to th{ very able and exhaustive judgment delivered by Mr. Justice Adaij Wilson: ^' '^ "^ , ii; itr-, I uri, n i / '-.«;• f(ti!T ,,{ Sheriff Deeds. — Where a title is derived tlirough a sale by | Sheriff under an execution, the purchaser's solicitor must see tlid there is a judgment duly entered up of record f that the writ \mM which the Sheriff sold was valid on the face of it ;^ and that it wa| acted upon while current."* A purchaser under a writ valid on its face will be protected m though the judgment under which the land was sold should al'tej wards be reversed for error appearing on the record.'* The conveyance from the Sheriff is pinma facie evidence the writ was delivered to him, that he took the lands in executio and sold them.^ A purchaser is not bound to enquire whether! writ against goods properly returned " nulla bona " before tf writ against knds was issued. Neither need he enquire whethj the lands were duly advertised or not, as errors and defects in I advertisements, either in the Gazette or local papers, will n| 1 18 C. p. U. C. 367. • - . !. 2 Doe d. BmUton v. Ferguson, 6 Q. B. U. C. 516 ; McDoneU v. MeDoneU, Q. B. U. C. 260 ; ball Dmiglas v. Bradford, 3 C. P. U. C. 469. 3 Doe d. Ilagerinan v.Strong, 4 Q, B. U. C. 610. 4 Doe d. Oreeruhieldn v. Garrow. 5 Q. B. U. C. 237 ; MoDonell v. MeDo}»eU, Q. B. U. C i Gardiner v. Juson, 2 Er. & App. 188. 5 Doe d. Hagennan v; Strong, 4 6. B U. C. 610. 6 Doe d. Spafford v. Eroum, 3 O. S. 90 ; Mitchell v. Greenvmod, 3 0. P. U. C. MS. purchaser Is not estopped by improper recitals in a stieriiTs deed. Roe v. McNeil, 1 U. C. :i. S. 111. ORDINARY CONTENTS OF AN AHSTUACrT. 1317 Igffeot the purchaser's title, even if ho be one of the execution lereditors.* A sale was duly advertised in a local paper for three Imonths before the 27th August, 1864, and an advertisement in JBome particulars incorrect was inserted in the Gazette, of the 11th jof June, 1864, and four next issues, the errors being corrected in Ithe sixth insertion, all these advertisements were of a sale on the l27th of August, 1864. On the Ist of October following and in Ithe five next uumbers of the Gazette, the sale was advertised Ifor the 12th of November, not as a postponement of the pre- Irioas sale, but this advertisement was not published in a local aper, and although a notice was put up on the door of the ICourt House, it was not shown that it was continued there for ree months. Under these circumstances the Court of Queen's [Bench held^ that these advertisements were not a compliance with be statute,^ but that the defects would not affect the purchaser's title. In that case 0. J. Draper said, " There is no decision that I Sheriff's sale under execution of land is invalid by reason of roneous or defective advertisements in the Gazette or the local Newspaper ; and the language of the late Chief Justice in Jarvis v. hooke* shews that there have been decisions (though unreported) |lbe other way, where lands have been sold in execution, and hough we might think the purchaser could have little reason to omplain where he was one of the execution creditors, and also the ittoraey on record, if the proceedings where held nugatory by ison of any irregularity or omission in advertising, we think this I reason for incurring the risk of shaking other titles where the ^here the purchaser has had no such necessity or opportunity for itching the proceedings. We think we ought not, by a decision (iven for the first time after so many years, to deter purchasers at lieriff's sales by holding it to be their duty to examine into wry step of the Sheriff's proceedings under a valid writ supported ' a valid judgment. / «.i. J'Ji* Hi h'Hr\.lVj/hM Vtllfi M-fv/J fetiirMJ ^.,. The purchaser should satisfy himself that the writ was acted on while current, as nothing can be done under an execution \f ti .li^^.i'i-yjt Jj >,1^«\'>V' |1 Cm d. Myers v. Myera, Q. B. U. C. 465. |J Potorwrn V. Todd, 24 Q. B. U. C. 296. |! Con. Stat. U. C, ch. 22, sec. 267. It 11 Q. B. U. 0. 2»9 : and see JarvU v. CayUy, 11 Q. B. V. 0.28a; Doe d. Disset v. MoLeod, 8 <^ B U. C. 297. , .•**■-,. '?* 15 1318 PKOCEEDINaS IN THK .MASTER H OFKICE. which has ceafied to be current : unless for tho purpose of perfccij ing what has been commenced while it was in force.* Insolvency. — lu England on investigating titles to estates whicl have been subject to the bankruptcy laws, it is always usual ani requisite shortly to abstract the proceedings und'jr the commiBsiol or fiat.^ So in this Province the preliminary proceedings und{ which the insolvent's estate became vested in the asfignee shoull be examined. Some practitioners require proof of the act of ban( ruptcy, but except in very particular cases this is not usual.'' Under the provisions of the Insolvent Act * the Assignee ma sell the real estate of the iuHolvent, but only after advertisii for a period of two months in the same manner as is requir^ for the actual advertisements of sales of real estate by tlj sheriflf in the district where such real estate is situate.' Tli period of advertising may be shortened to not less than od month by the creditors, with the approbation of the judge. Wliej the price offered for hny real estate at public sale* duly advviitisej is in the opinion of the assignee too small, he may withdraw! from the sale, and sell subsequently under such directions ae may receive from th6 creditors. ' The purchaser's solicitor must enquire whether the sale wj duly advertised, and where the time has been shortened, or tl land has been withdrawn from public sale and sold afterwarj under the directions of the creditors, whether the order and resolj tion directing the assignee how to proceed was duly parsed bjj majority of the creditors present at the meeting. Where the tij is shortened it is also necessary to show the approval of judge. ■)i.t-!r..-r irf.t '!,-. *rMr(ti •> f.-.-ttrrf(. ' n : The 48th section of the act gives a sale of real estate by assignee the same effect as if the sale had been made by] sheriff under a writ of execution. As the title given by a sherif sale is the title that was in the execution debtor at the time 1 Doe d. GreefuMelds v. Gorrow, 5 Q. B. U. C. 237 ; MeDonell v. MoDonell, 9 Q. B, U. C.| Gardener v. Juson, 2 Er. & Ap. 188. 2 Lee on Abstnwte, 163. -, 3 L«e on Abatracts, 188. ...v '^rh tR.V» '■< '\ • -'. f In the case of old marriages, where the parties have been long [dead, and the place of the marriage is unknown, resort must often be had to the presumptive evidence of general reputation.^ The chief danger attending presumptive evidence of marriage is, that such evidence may be rebutted by either of the parties ; but after [the death of both parties, such evidence may be safely relied on.^ The mere entry of a christening, unaccompanied by any evidence showing that the person was young at the time of the christening, not prove the fact of the birth in a particular parish.^ 1 82 & 83 Vic. ch. 16, sec. 29. i Con. Stat. U. 0. ch. 72, spc. 4. 8 Ibid. sec. 7. 4 JU Harrii, 2nd Dec. 5 1 Byth. 168 ; Cov. Con. Ev. 286. 6 1 Byth. 168 ; Cov. Con. Et. 283. 7 Rex V. North Fetherton, 2 B. & 0. 608 ; and see Rex v. Inhabitant* of Trow&ridge, 7 B. & C. 262. Hex V. Inhabitant* of IjubbeTihawe, 6 B. k Ad. 968. Dunn v. Dtmovan, 3 Hattg- 801. Rex V. Claphavt, 4 C & P. 33. 15 1320 PROCEEDINGS IN THE MASTER'S OFFICE. An entry of a marriage in a book of Fleet marriages cannot read as a register, not having been compiled under public autho rity;* and copies ofregisters of baptism kept in the Island of Guernseyl or in a foreign chapel, .^re not admissable in our courts of law a( evidence." An entry in the books of the Navy Office is evidence of the deatlj of a sailor in the kirg's service.' - » t k r-ir . A certificate under seal of a minister abroad, as to the fact oi a marriage having been solemnized before him, has been ai mitted but it would not now be allowed.^ The production of the letters of administration to a person'! effects is not even prima facie evidence of his death ;^ nor is ih\ registry of baptism pHimi fade evidence of the age of the person.' Reputation is, as a general rule, sufficient evidence of marriage I and where it appears on a trial that the mother was received inti society as a respectable woman, under such circumstances io proper conduct will not be presumed.'^ So also, if the repute husband and wife eloped together for the purpose of being married and returned as having been married ;^ or if they have joined a deed, &c., for the purpose of barring the wife's right of dower j'oj evidence of other circumstance taking place which can only explained by the relationship of husband and wife subsisting I tween them, will all, after the deaths of- the parties, be admissiblj to prove the fact of the marriage.^*^ . ^ ,,,- . .,.. „if ^,. -^.w ,-,1^1 When a vendor claims as remainder-man after a life estai direct evidence of the death of the tenant for life will not be nece^ 1 Reed v Paimr, Peakr. N. P. C. 231. Lloyd v. Passingham, Coop. 0. C. 156. 2 Uuet V. Le Memtrier, 1 Cox, C. C. 276 ; Whitehead v. Wytme, 1 J. A W. 488 ; Leader v. Aim Evp. N. P. C. 832 ; Rex v. Inhabitanta of Bathvnek ; 2 B. & Ad. 680 ; Beatley v. Beazley,ir 639. Doe d. WoUaiUm v. BameH, 1 M. & R. 386. 8 J»u«. N. P. 249. .. u,., 4 See AUop v. Bowtrell, Cro. Jac. 641 ; WUles, 649. ^- \v 6 Moons V. Bemales, 1 Rubs. 301. 6 See Huet v. Memrier^X Cox, 276 ; Wiken v. Law, 8 Stark. 08. ■ 7 Doe d. Flemming v. Flemming, 4 Bing. 266 ; 12 J. B. Moo. 600 ; and see Maeneil v. MaeOregori Dow. N, S. 808. Morret v. MUhr, 1 Bl. 632, 8. 0. 4 Burr 2067. Rsad v. Pa$ter, 1 Esp. N. f C. 318, 368 ; Dow. 174 ; Cowp. 694. Gordon v. Gordon, 8 Swans. 400. 8 Cook V. Lloyd, Peake Ev. 28. 9 Cooke \ Lloyd, Peake Et. 28, Harvey v. Harvey, 2 Bla 890. 10 Harvey v. Harvey, 2 Bla. 899. Lord Braybrooke v. I7iskip. 8 Ves. 417. Rex v. /fiAa«aii»'>| Brampton, 10 East, 282. Goodright v. Mom, Cowp. 591. Rex v. itthabitants of Bramle^, it R. 380. Maif V. May, Bull. N. P. 112 • 2 Str. 1087. Uaydon v. GouJd, 1 8a)k. 119. Ifitttur* Payne. 4 iC R. 468. FACTS REFERRED TO IN ABSTRACTS. 1.^21 dence of the deatU t 4«« A1. 1 ••r tl.i ry ; the evidence of strangers residmg in the neighbourhood as ithe fact will be sufficient.^ ■•"•■* '^ =' > • " * • *' '* " "•» ''.^f An entry in the registry book by the minister of the parish of be baptism of a child, which had taken place before he became linister, dr had any connection with the parish, and of which he ceived information from the parish clerk, is not admissible in idence ; nor is the private memorandum of the fact made by the |lerk who was present at the baptism.^ . The registers of baptisms and burials kept by dissenters in ngland are not strictly evidence, although they will afford a rea- dable presumption of the facts which they attest.^ Where the person whose age or legitimacy is to be proved is a er of the realm, and has taken his seat in the House of Lord3, i these facts must have been proved at that time, it is not usual icall for fresh proof of them. . ., . \Inte8tacy. — Intestacy must be proved by the letters of ad- istration which have been granted of the intestate's effects, or |it be stated that no letters have been granted, searches should I made in the proper offices, according to the circumstances, to eertain the fact : or a partial intestacy may be proved by the iuction of the will, by which it appears that the property in flstion was undevised or unaffected. ,,,fjf.,tfu .. m > vo N'^mw^ \Legitimacy. — Legitimacy must be proved by a certificate of ! marriage of the parents, and proof of their being respectively at the time of the marriage, or that they married with the sent of their parents or guai'dians, and that they complied with provisions of the Marriage Act in force at the date of the riage. The registry of the christening of the child is generally led sufficient evidence of its legitimacy, as it is usual to notice i illegitimacy in the registry,* and illegitimacy will not be pre- ned on slight grounds.^ siH !: '*r<» |i)M V. Deakin, 4 B Ar A. 438. As to where equity will act upon the presumed death of persons lonr unheard of, see Bailey v. Ha mond, 7 Ves. 600 ; Dixon v. Dixon, SB. 0. C. 610 ; Lee v. WiUock, 6 Ves. 605 ; Mainwaring v. Baxter, 5 Ves. 468. md. Warren \. Bray, 8 B. & C. 818 ; S. C. 8 M. & R 428. lljtM; Kx parte Taylor. ^ Jac & IV. 483; Whittuekv. Waters, 4 C. & P. 375. I«y V. May, i Stra. 1073 ; and see Rex v. Head, cit. Pealc. Ev. 86. IIh Don d. Flemnting v. Fkmming, 4 Bing. 206 ; Braybrook v Inakip, 8 Voh. 417 ; Cope v. Cope. ■ 1 M. 4 B. 269; Con. Sta. U. C. oil. 82 * 1322 PROCEEDINGS IN THE MASTERS OFFICE. Death vnthotU iamie. — In one cade, Sir W. Grant decree payment of a legacy, to the persons entitled in remainder, on ei dence that a female to whose issue it was first given was of th age of fifty-five, and unmarried, she consenting thereto.^ The fa| of death without issue is usually proved by an affidavit, made some near relative of the party ; but the death of a party witboj issue will be presumed after a hundred years.^ The best proof thj a person never was married or had issue, is, that none ol family ever heard of it.^ But where the lessor of the plaint] claimed by descent, and proved the death of his elder brothers, was held to be necessary to prove also that they died without m^ as no presumption will be admitted against the person in poss sion.* Executorship and Administratorship. — Where it is necessal to prove that a person is executor or administrator, the probai the will, or the letters of administration, must be produced ;* the probate act book of the Court, containing an entry of a ^ being proved, and of probate being granted to the executors na therein, will be admitted as evidence of those persons being executors, without accounting for the non-production of the bate. :^5d 8iion oil? 10 '.^.^^:.nK .,: : '■\m^t>rih ,■( a' Where the question was whether letters of administration been duly granted to a plaintiff, and letters of administralj granted by the Bishop of C. to the plaintiff were produced, bij was proved that the intestate, at the timo of his decease, had notahilia in another diocese in a different province ; and no dence was given as to the residence of the defendant at the d^ of the intestate ; it was held that the letters of administration wen void, inasmuch as the other diocese in which the intestate | bona notihUia was in a different province.^ , ^ Title. — Payment of a small unvaried rent for a long of years to the lord of the manor, is evidence only of a title I rent, but not to the land.^ . .^<„.. . Vv'« 1 Frcuer v. Frtuer, 1 Jac 686 n. 2 Rotoe V. Hoiland. 1 W. Bla. 404 ; Doe d. Oldham v. WotUy, 8 R & C. 22 ; Doe d, fm Grifin, 16 But. SOS. 5 Doed. Banning v. GrtJIn, 16 Ewt, 2»3 ; Doe d. OUUmm v. WoUey, 8 B & C. 23. 4 Richardt v. itteAani«,l6 East, 294 n. 6 S«e Smartle v. WUliaim, 8 Lev. 387 : Garrett v LitUr, 1 Lev. 26 ; Btdon v. KeddtU, 8 Davte V. WUliams, 13 Eut, 232 ; Finney v. Pinney.S B. & C. 336. 9 Coxv. Alliitgham, Jac. 514. 7 Stoket v. Bate. 5 B. kO. 491. 8 Doe d Whittooke v. JohnMon. Oow. 178 ; aee Woolway v. flotoe, 1 A. ft E. 114; DaviMV. 1 Bing. N. C. 606; Came v. MeoU, 1 Bing. N. 0. 480. A IIA 1)4 FACTS RKFKKRED TO IN ABSTRACTK. 1323 LoasGH are jirima facie oviclence of a person's seisin, but are I not direct or conclusive evidence thereof, without proof of the actual seisin of the lessees, unless the estates created by the leases [appear to have expired before the time of living memory.* t Trespasses on a common have been received as proofs of a I right to the freehold.* , ., ... .. Possession. — The mere possession of land, if unexplained, is [prima facie evidence of an estate in fee-simple ; and the party so {in possession may maintain trespass against unlawful invaders.^ It is not necessary that there should always be deeds or wills [produced affecting the property in question during the period for [which a title is required to be shown. Possession of itself is a linfficient title, and could it always be clearly shown to have been pdisturbed, would, no doubt, be the best of titles.* But as it is Idifficult to show that possession has never been disturbed, a title [There no deeds exist, should be rigidly enquired into and strictly proved.* "'' ^'i '■■' '' '" ' "' ' '' ^ '^- '^"' .'Tf'i ^'^ , In Cottrell v. Watkins,^ the Master of the Rolls said, " I am erfectly satisfied that there are good titles in which the origin lot be shown by any deed or will ; but then you must show lething that is satisfactory to the mind of the C5ourt, — that bere has been such a long uninterrupted possession, enjoyment lid dealing with the property, as to afiford a reasonable presump- that there is an absolute title in fee simple." In another case^ it was said, '* a party seeking to establish a ile by possession agoinst a paper titie, and thus to usu^p the klace of the rightful owner, and supplant him, must do so by clear ddence admitting of no reasonable doubt." i^^ 'ii*^*»l-t'^,'Mii. i' ; t A title by possession, though less satisfactory than one which be traced to the patentee from the Crown, is a title which, |ICIor*«on V. Woodhouse, 5 T.R. 412 n. ' *»•*■* 'u nmnA ; It Barry y. Bebbington, 4 T. R. 514 ; and see Stead v. Heaton, ib. 669. "" "^'^ ^ •"'"^ " IJ* Taunt. 17; Ib. 547 ; 6 Taunt. 321 ; Harper v. Charlegumrth, 4 B. A C. 674. «1V'wW>. :< » |(£eeon Aim. ae ; i)art on Vendors, 275. vis-n? •».ir f ■ 1 5 tM on Aba. 27. 6 1 Bear. 865. . . j h ./wir'.V \1 Im\. Morrison, U Qnnt, 196. *' v f. , »fiAw»v;v.. *•«'*, y i: P 1324 PROCEEDINGS IN THE MASTER'S OFFICE. under an ordinary contract of purchase, a purchaser is bound t] accept if duly verified.^ ; » Lord St. Leonards, in Scott v. Nixon,'^ said, "Can this Con compel a purchaser to take a title depending upon parol evidenc of adverse possession, under the new statute ? Under the ol| statute it was long undecided whether a purchaser could be force to take such a title, but ultimately it was so determined, and] apprehend that it was quite settled, that a clear title, and just good as any other title, might be acquired by adverse possessioij and that a purchaser would be bound to take such a title." In the subsequent case of Tuthill v. Rogers,^ his Lordship saij " Upon a former occasion I was called on to decide whether tli Court would enforce, as against a purchaser, a title depending non-claim, between subject and subject ; and I was of opinion tli it did not matter how the title was acquired, if it were a good on * * * I held that the Court was bound to force the title on purchaser, and that decision has been acquiesced in." ^ '"''^ To force such a title on a purchaser, it is not sufficient merely show possession by the vendor for twenty years. If the vendl relies on a possession of twenty years as giving him a good titl he must show who the person is, that but for this posssesion woi^ be the owner in fee simple in possession ; and that twenty yea possession barred his right.* This it would not do, for example, if, when the twenty ye\ began to run, such owner was an infant, under coverture, an lunatic, or of unsound mind. In that case,* " such person, or I person claiming through him, may, notwithstanding the perio twenty years hereinbefore limited sball have expired, make an i try or distress, or bring an action to recover such land or rentj any time within ten years next after the time at which the per to whom such right shall have first accrued, as aforesaid, sij ii 1 Dart on Vendors, S09 ; '^'v-'«-"i tu H'ni «jwi ijitu. The first section of the statute,^ provides, that no person sba make an entry or distress, to bring an action to recover any lando^ rent, but within twenty years after th time at which the right make such entry or distress accrued ; and the second section, sub] section four, says, that in case of future estates, " such right i entry shall Jbe deemed to have first accrued at the time at whiclj such estate or interest became an estate or interest in possession.' The effect of the statute must, therefore, always be determine with reference to the actual state of the title when the time begaij to run, so that if the fee dhould then have ■ been parceled out i particular estates and remainders, the title acquired by means i the statute would, for the most part, be commensurate only witj| the estates of those persons whose righti^ may have from time i time have accrued.* The state of the title when the time bdp' >i'.v |tWm. IV. ch. 1, sec. 17 : Con. Stat. U. C. ch. 88, sec. 3. • . . , mtng V. Elliott, 25 Q. B. U. C. 338 ; Re Bell, 3 Chan. Oham. R. 864. > ; 15 1328 PROCEEDINOS IN THE MASTERS OFFICE. good a right to the possession as if he had himself occupied for tk^ whole period.^ But if a series of trespassers, adverse to one another, and to thi rightful owner, take and keep possession of an estate in succesBioij for various periods, each less than twenty years, but exceeding i the whole twenty years, in whose favour is the right to be declared] The right view seems to be, that the first of such trespassers, at the end of twenty years from his entry a right to the possessionl Possession heing prima facie evidence of seisin in fee,^ the morj fact of priority of possession is sufficient proof of title on which i man can maintain ejectment against any person who was let mi possession by him, or who came in as a wrong-doer, while, there fore, the trespasser who is in possession at the time when the twent; years expires, can maintain his possession against the rightfq| owner, because his title is extinguished, yet he is liable to be ejecte by any one who had possession of the property prior to himseli but within twenty years, though without any better title.' | In this country the question of title by possession, as against { paper title, often presents peculiar features, and is not always on of easy solution.^ Thus the question has sometimes arisen whethj the occupation of part of a lot of land will give title by possessiol to the whole. The present current of authority seems to be, m such a possession will confer title only to the part actually occij pied. . This was the decision of the Court of Queen's Bench in Hunti V. Farr,'^ when C. J. Draper, in delivering judgment, said, " III man has title to a lot of land, though he has never entered intoti^ actual possession of it, the law deems him to be in possession unlj some one else enters adversely to him, not recognizing his titi and so a fortiori if he enters and occupies part. If without title! enters on a lot which is in a state of nature, clearing and fencii a few acres only, leaving the rest open and unimproved, the acta 1 Ather V. WhUloek, L. R. 1 Q. B. 1 : Kee/e v. Kirby, 6 Ir. C. L. R. 291. 2 Dairby on Lunitations, 390. 5 Doe d. Willia v. Birehmore, 9 A. & E. 662 ; Whitlock v. Axher, L. R. 1 Q. B. 1 ; Oroome v. £!«' 8 Ir. C. L. R. 432. 4 Dundas v. Johnston, 24 Q. B. U. C. 547. 6 23Q. B. U. C. 327 ; and seo Doe d McDonell v. Rattray, 7 Q. B. U. C. 321. lUOi FACTS REFERRED TO IN ABSTRACTS. 1329 [occupied for tkSpoggession of the part will not alone, in my opinion, draw to it tho possession of the other part." In McMaster v. Afo/rwon;* V. C. Mowat, • before T/hom the case lias heard, followed the decisions at law, and the plaintiff having Ifeiled to prove that the testator exercised any acts of ownership on ay portion of the lot except what he cleared, or thut ne was more khan a mere trespasser in respect of even that portion, the learned jVice-Chancellor said, "under these circumstances, he cannot, ccording to the authorities, be held to have been constructively in oBsession of any part of the lot of which he was not in actual pos- «88ion." ^ ,, The same point was afterwards decided in the same way by the thancellor in Low v. Morrison,'^ and also by Vice-Chancellor pragge in Wishart v. Cook.^ ' - " ■--^- "■' Although in McMaster v. Morrison, V. C. Mowat seems to have jounded his judgment upon the fact that no proof was given that lie party in possession was more than a mere trespasser, yet it is irobable, that following as he did the decisions at law, the learned fice-Chanoellor would have come to the same conclusion, even had I been shown that the party was in possession under an apparent tie, or had some show of right. ^ - '-■• \ -^ ^;- »• Vi > >■/ ( ; In Dundas v. Johnston* it is true the language used refers solely occupation without any title; Draper, C. J., saying, "When, [lerefore, a person without any title, or without any real or bona ie claim of title, (though erroneous) entered upon any such lot, ig and fencing only a portion thereof, I do not understand m what principle this wrong doer can be deemed to have taken, to be in possession of the whole of such lot : — for example, of I acres, if the lot was originally surveyed to contain that quan- j, or of the half or quarter lot, if such had been the division of the lal survey ; or that his cultivation and fencing of a small part him into possession of as much (be it the whole or a fractional of a lot) as the proprietor of the pait trespassed upon owns. [cases of what is well understood in the country by the term ^uatters,' I have always thought that as against the real owner 1 Q. B. 1 ; Oroome v. B!a |lHpect of which the true ownej could not maintain ejectment againnt the trespaRHer as the porsoi ni poBseBBion. I « • if // In the subsequent case of Youmj v. Elliott,^ the Court camo the same conclusion as in Ihmdas v. Johnston. As the law now stands, it would, thcrefere, seem that a party i possession without a paper title, accjuircH title only to that part i the lot actually occupied by him. PerhapH fuller and furtliei argument may lead to a difl.irent conclusion being arrived at. In the case of a person taking possession of land already clearej and cultivated, when he confines his occupation to a part only the lot, cultivating that and that only, and allowing the remaindd to lie waste, it may be reasonable to assume that such an occij pation will confer title only to the part actually occupied. But i the case of wild lands, where, unless a man goes to great expen^ in the way of fencing to enclose the whole lot, his visible posessio and exercise of acts of ownership must be confined to the portid he may clear up and bring under cultivation, it would seem mo| reasonable to treat such occupation as possession of the whole Indeed, in Dundas v. Johnston,'^ the Court of Queen's Beni said, " It must depend upon the circumstances of each cai whether the jury may not, as against the person having the le; title, properly infer the posession of the whole lot covered by sui a title, in favour of an actual occupant, though his occupation acts of ownership, such as clearing, fencing and cultivating, been limited to a portion less than the whole." ^^ -• -•-> f- In a recent casie,* C. J. Hagarfcy, in delivering judgment, saij " We are not prepared to hold that unenclosed wood land in tij country can never be the subject of a twenty years' possession. 1 8S a B. U. 0. 334. ■"«? 2 24 Q. B. U. C. 650 ; nnd see Davig v. Henderson, 20 Q. B. U. C. 844. ■^ee S Ueyland v. Seott, 19 C. P. U. C. 172 ; aiid see also MulhoUand v. Conklin, 22 C. P. U. C. S71H! Pt FACrs UKFEURBD TO IN AHHTIUCTH. 1331 10 Court camo ^Qcing und uultivutiuu can uluiiu cotiHtitute a poHHoHuion, thun titli) I open wood land can novor Ix; acquired againut tlio true owner." Sworn copioH of aHHOssraontH to tho land tax will not bo conclu- ve evidenco of possoHHion.' fleimhip. — Whoro a titlft is derived throuph an lioir-at-law, |will not only be necesHary to prove that the heir was tho legiti- ate son, but alHo tho elde.'t Hon of liiR father ; or if tho heir-at- \ii he a daughter, it will bo riv-ccssary to prove that there was no her child. ThcHo factH will bo best proved by affidavitH of per- |inB who are intimately acquainted with tho family. I Bachehrhnod. — Whore, if the vendor or mortgagor were parried, his wife would be entitled to dower, ovidonco is usually ([uircd of luH being a bachelor, and may, it would seem, be in- tod on :^ und wherever in an abstract, the right to dower would ach, a similar enquiry should bo made as to the fact of the riage ; and it should bo shown, if possible, that the person was married ; or if married, left no widow. If no direct proof can I given of this, the will of the person will be collateral evidence, if Imako no mention of a wife, or if he died intestate, it should be Jown to whom letters of administration were granted. ,^^ j^.^ udentity. — It will frequently be necessary not only to produce [gisters of tho births, marriages, or deaths of tho persons men- pned in the abstract, but also to prove tho identity with the per- ns mentioned in those registers. In such cases, an affidavit of be identity of the party must be made by some competent person. {Payment of Money into Court.— 'When money is to be paid fto court, and it is incumbent that it should be seen that it has en BO applied, and there is no subsequent order of the court re- lizing the payment, the fact of the payment should be stated fim an office copy of the Accountant-General's certificate.^ _^ 14. Payment of Legacies. — The production of a release of a Racy is evidence of the payment of debts, unless a special pro- [OngUy V. Chambers, 1 Binjf. 483 ; Doe d. Stambury v.Arkwright, 2 A. & E. 182 ; 6 C. & P. G7r,, S. (' {SeePower V. SWef, IBreat. 48. ^ .„ „ , , . '-*k 15 I g; ' 1882 PR0CEEDIN08 IN THE MAHTBR's OFFICE. viBo be inserted in the release for abatement, in ease any futt demand be substrntiated. M'l Of the MUcellaneovs Evidences of Ahstracta of Title. Public Booki. — Where a book is of a public nature, and miseible in evidence, an examined cop^ will be equally admiBsibli Thus, examined copies of entries in the Bank books, &o., will admitted as evidence.* Parliamentary Surveys. — Parliamentary surveys are deservii of great consideration, particularly if they are executed with uccj racy.* In ascertaining the meaning and effect of a charter, contempoj aneous documents, proceedings in causes relating to it, and pan testimony, may be resorted to in order to explain its constructioj but not to contradict it." :. ii\ iKf.»:''^v»" -i'.w».vi>' n,'.5jj\'i.' '^. - Pedigrees. — Pedigrees made at a former period in the ,\hm of other evidence, will prove the facts mentioned in them.* PeJ grees are, however, generally proved by the proper certificates! the births, marriages, and burials of the persons mentioned them ; but in default of these, there are other modes of provij them. Thus, the ancient books of the Herald's Office, and tlij visitation books of counties, will be admitted as evidence of| pedigree.*.,. ..,, ,,. ,, ,„.„ ,. „.^,.. ,^_,.,,,_ , . Descents in pedigrees are also frequently proved by certificaj of marriage, entries in family bibles, engravings on tomb-stonj or other similar evidence, or by the affidavits of persons longi quainted with the family.^ So also a verdict, or a statement i^ bill in Chancery will be admissible to prove a pedigree.' 1 Marsh r. Colnet, 2 Esp. N. P. C. 666 ; BretM v. Coape, Paake, N. P. C. 80 ; AurM v. i Vea. 19a 804: 8 Doug. 672, ii(S):Rex v. Kinget. al. 2T. R. 234; Tuekey v. FloiMr,t 137 ; H»x V. Hainet, Comb. 337 ; Doe d. Churehtoardena of Croydon v. Cook, 5 E p. N. P. C| 2 Attomtsy-Oen»r i'. li :Kt ^ 'i ■ i • ' iiwj,;. . [SordonT. GlonloniiSwBnBt. 466. ' l<'oktuon V. Lawion, 9 Moo. 18!), S. C. ; 2 Blng. 86. See also 13 Vea. 614. hloo. 187. n. ]VmU$v. Young, 13 Ves. 140 ; Doe i. Northey v. Harvey, 1 Ry. & Moo. 297 ; Futter v. Bandall, I 1 Ho. * Pa. 20. fCowp. 694 ; 10 East. 120 ; 18 Ves. 147, 614 ; Doe v. Origin, 16 East, 398 ; BOuardt v. Harvey, Coop. I 0.0.89:4 Camp. 41. lUVeB. 147. ; ICowp. 5C4 ; 10 East, 120 ; Berkley Peerage case, 4 Camp. 401 ; Herbert v TucJtoZ, T. Baym. 84 \ Ihed. Johneon v. Barl of Pembroke, 11 East, 604. lOovp. 604 ; 10 East. 120 ; 18 Ves. 144, 614. Umold V. Bithop of Bath and WeUt, 6 Bing. 816 ; PvUey v. HUton, 12 PrL 826 ; see Itham r. [WaUaee,* aim. 26. IBnkts V. Mayor of London, 1 Str. 897 ; Bretton v. Coape, Peake, N. P. C. 80 ; LyncA v. Clarke, I SSalk. 164 ; and see Rex v. Owin, 1 Stra. 401. ftmn V. Lord OreenviUe, Str. 1129. 1334 PROCEEDINGS IN THE MASTER'S OFFICE. Entries will prove themselves, after thirty years have elapsed, receipts,^ and entries in the books of a steward of a manor.* Sworn copies of land tax assessments, although entitled to con siderable weight in private transactions, are not direct eviden .. i| a court of justice, of possession.^ , ^ .<,,.., Maps. — Maps and plans of estates made a long time bacU are, in the absence of other evidence, entitled to considerable credj when the possession has been conformable to them.* J; oY Awards. — An award regularly made by an arbitrator, to whoi matters in difference are referred, is conclusive on the parties to til reference upon all that is so submitted to him.^ The submission i all the parties to the award must be regularly proved.^ . .s, . . . ■•(-■■"' t'. '■ .. Where ohe award is under an act of parliament, the act ought i be produced for the purpose of showing the authority of ihe con missiouers, and that the award is conformable vnxh the statute ; \ proof that the directions of the act have been complied with mu be given. ,,^ ,«?/.];,>«» /.^ '\->f\i^x » ^i *i"ft.i' : b*»-*uir.'.T>irf ^h^iac'^ti I Certificates. — In producing a ceitificate from an incorporate society, it will in general be necessary to prove that the seal affixj to it is the genuine seal of the society.* ,,, .,../,;, .% ',.j, Of Secondary Evidence in Support of Abstracts of Title. If the documents relating to the title are lost or destroyed, this can be satisfactorily proved, secondary evidence of them be admissible. This secondary evidence we shall now considerj detail' ''■■'•''^■' '" C^'*-'''''*^^/-'f^^'H-^^v.^^ ^^^^wMcuUi^Miiai^o^^ To the admission of secondary evidence, pix)of of the loss or struction of the original document is a necessary preUmiii 1 Fry V. Wood, Sel. N. P. 535, n, 2 Wynrte v. Tyrwhit, 4 B. & A. 376 : and see Rex v. Syton, 5 T. R. 269 r Rexr. Neth»rtho»g,ii & Sel. 337 ; Rex v. CaUsby, 2 B. Ji C. 814 ; Middleton v. Melton, xO B. & C. 317 ; Doe It TyUr, 4 H. & P. 383. 3 Ongley v. Chambert, 1 Biiur. 483. 4 YeUes v. Harris, cit. Gib. Ev. 78 ; Brtdgman v. Jenningt, 1 Lord Baym. 784. 6 See Doed. Moms v. Rosser, 3 East, 16 ; 1 Phill. Ev. 880. 6 AtUram v. Chtue, 15 East, 200. 7 See 1 PhUL Ev. 400. 8 Chanrick v. Bunnitig, I Ry. & Moo. 306 ; see further as to tltis, Woolryoh on Certificates. ICE. r.l- OF SECONDARY EVIDENCE. 1335 rs have elapsed, a manor.' ;h entitled to con direct eviden - i| . ^;'uii;a' ... , long time bacU [jon"^iderable credi m.' rul.: u^ rbitrator, to whoij a the parties to tn The submission i •OVed.®. : .i: . nt, tlie act ought 1 thority of the coij ith the statute ; 5omplied withmii m an incorporate that the seal affixj stractB of Title. it or destroyed, idence of them lall now considerl af of the loss or essary prelimin lOB. &C. 317; Doel TM laym. 784. olryoh on Certificates. Proof of the destruction more readily lets in the secondary evidence of a copy, than proof of the loss, which must ever be incomplete and exceptionable.^ Beforo the secondary evidence can be received the same evidence of their loss and contents must be given as on a I hearing in equity, or on a trial at law. The first step is to show that such a deed once existed.* The I next is to show in whose custody it was last seen or known to be, if that can be done ; or to show who was the person who was en- titled to the custody of it, and having discovered the custody of it, or the proper custody for it, to make search there, and if it cannot i)e found on diligent search, then secondary evidence may be [given.'. ' _ . The degree of diligence to be used in seeking for an original docu- I ment, before a party can give secondary evidence of its contents> must d.^pend, in a great measure, upon the circumstances of each particular case. If a paper be of considerable value, or if there be I reason to suspect that the party not producing it, has a strong inter- t which would induce him to withhold it, a very strict examination [would properly be required ; but if a paper be useless, and the party eould not Aave any interest in keeping it back, a much less strict search would be necessary to let in secondary evidence of its con- tents.* / I-/!; •rpi';,.j. The point to guard against in this respect is a pledge or deposit of [the original document.^ Parties searching for a missing deed I should remember that the person entitled to the first immediate I estate of freehold is entitled to retain the title deeds as against those lentitled in remainder or reversion ;® and that the deeds are pre- |sumed to follow the title and go into the custody of those entitled.^ When the lands descend to real representatives, they, and not the Ipersonal representatives, are entitled to the deeds, though for greater ■certainty a search with the latter would be advisable, especially |in the case of a missing mortgage. 1 Cm. Con. Et. 312. i Doe d. Padmek v. Whitcomh, 6 Ex. 600 , 4 H. L. 431 ; Re Bell, 3 Chan. Cham. B. 24L J Oordon v. MePhail, 81 Q B. U. C. 484. 4 Cov. Con. Ev. 312. 6 Cov. Con, Ev. 318. ... , , .,. d Dixon on TlOe Deeds, 85 ; Webb ▼. Lymington, 1 Eden, & 7 Uith'i Real Prop. Stat 427. P 1336 PROCEEDINGS IN THE MASTER'S OFFICE. The presumption that the deeds follow the title may be destroyed as foi instance by the fact that they covered other lands retained byf the vendor^ or that some prior owner on sale of a portion gave al covenant to produce them. ^ ..,.;,, Where the documeot, if in existence, should be in the possession! of the party who desires to give secondary evidence of its contents! the proper course is that he should search with a witness, and that! the search should be so conducted, and in such places, as to afford ; reasonable ground for concluding that it was made honajide, bothl as regards the witness and the party, by giving and using all possi-j ble facilities to make it eftectual.2 . Where sufficient evidence has been given of destruction of the origi- nal document, or of search and loss to let in secondary evidence] memorials afford, in cases of conveyance, a frequent means of fui-i nishing such evidence, and are admissible or not according to cir-| cumstances. ^ A memorial signed by a grantor, who was not shown to have ha more than mere constructive possession by force of the conveyance! to him, has been held to be evidence not merely against ^he grantor] and all claiming under or in privity with him, but also against thir persons not appearing to have any title whatever except a bare session of insufficient duration to confer a title, as being a statement and act by the party in possession against his own interest as re] puted owner of the land.' Though the weight of authority is in favor of taking a memoria executed by a grantor as good secondary evidence even againsj strangers, without corroborative evidence, it is not clear that thii would be so if at the time of the conveyance sought to be prove some one were in possession adversely to the grantor. , Many of the principles whereon a memorial signed by a grantoj is admissible as evidence of a conveyance by him, do not appl][ where it is executed by a grantee. 1 Yeo. V. Field, 2 T. R. 708. 2 Bfdtt V Ij€€ 7 C. P U C. 2dO 8 Ru9seU\. Fraser, 16 0. P. U. 0. 375 ; but see HaybaU v. Shepherd, 26 Q. a U. C. 686. OF SECONDARY EVIDENCE. 1337 J be destroyedH In the latter case it is a statement, not against, but in support of ds retained byHinterest, and by a person not then in possession. But such a memo- >ortion gave alrial, if coupled with other facts confirmatory of the instrument set out in it, is admissible as parcel of the evidence towards proof the possession] )f its contents J ness, and tbatj I, as to afford bona Jide, both! using all possi- iionoftheorigi- idary evidence! t means of fur| jcording to cir-| [wn to have ha the conveyance nst^he grantor Iso against thir :cept a bare sing a statement interest as rej :ing a memona ice even againsi clear that thij it to be prove )r. id by a grantoj do not appli a U. C. 686. A memorial executed by a grantee through whom a person claims Lupled with possession taken under the instrument to which it re- 3, and enjoyed for a length of time in a mode such as to preclude he possibility of the instrument being other than assetfoith by the ttemorial, is good evidence even against strangers, especially if ac- oinpanied by other corroborative facts, but the mere memorial fould be evidence only against those claiming un^^er or in privity lith the grantee.* There seems, however, some danger in allowing mere length of session and dealing with the property to be sufficient corrobo- ative evidence on which uo admit a memorial executed by a mtee as evidence of a conveyance in fee simple absolute. Until he recent Registry Act it was not necessary to set out in a memo- the estate or interest conveyed, and in the case of a conveyance life, a fraudulent grantee might execute a memorial referring to I instrument granting a fee simple absolute. He might then after stroying the deed, convey in fee, and the property might pass ough various hands during his lifetime, and there might thus be session and dealing with the property for fifty years, consistent lith the right of possession and with the conveyance in fee, as set r out in the memorial. The persons entitled in reversion are not supposed to enquire ptil their right accrues, and when it does they have to contend inst evidence offered of the fraudulent memorial and the posses- bn and dealing said to be consistent with it. . .. The cases when examined, hardly go the length of holding that jere length of possession though for a considerable time under an ged grant in fee coupled with a memorial executed by the iitee, is sufficient evidence. There are either other facts which to the belief of, or are confirmatory of the instrument ; or, if fftiJwA V. MoBride, 10 C P. U. C. 166 ; Fields v. Livingstone, 17 C. P. U. C. 15 ; and aee il« Biggins, 19 Qrant, 308 ; Sadlier v. Briggs, 10 Ir. Eq. 532 ; 4 H. L. 4flO ; Peyton v. MeDermott, 1 D. & W. 198 ; Scully v. SouUy, 10 Ir. Hq. 667. I! I 1338 PROCEEDINGS IN THE MASTERS OFFICE. mere length of possession alone has been considered sufficient, it ha been in cases other than on a question of whether the conveyanc^ was in a fee simple absolute to the grantee, and where the posses sion had was quite inconsistent with the instrument being otherwis than as set out in the memorial. v As between vendor and purchaser, and on proceedings under thj Act for Quieting Titles, stricter evidence is required than in ejectj ment ; it is necessary where a party relies on memorials as proof missing deeds, to show that the deeds contained no trust, limitatioJ condition, exception or qualification not mentioned in the memor The execution of a memorial which is receivable in evidence nee not be proved when more than thirty years old.^ Where a foundation is laid by proper search or otherwise for th admission of the contents of a memorial as evidence, and when i quisite, sufficient corroborative circumstances or privity shown,! memorial, though not thirty years old, produced from the Registij Office need not be proved ; and a copy certified by the Registrar such is also admissible without proof of the execution of the origiD or of the instrument to which the originalfrelates.^ If a petitioner, under the Act of Quieting Titles, intends to certified copies of memorials as evidence, he must also procure i produce certified copies of the affidavits of execution, nt? 'i- With respect to copies generally, it is to be observed that a coj of a copy is not evidence, for the Courts require the best evidei[ the nature of the thing admits, and the further ojff anything lies fit the first original truth, the weaker must be the evidence ; besid there must be a chasm in proof; for it cannot appear that the fij was a true copy.* Voluntary Affidavits. — Voluntary affidavits are frequently sorted to, and required by conveyancers under a choice of diffio ties, in support of facts and averments, when more direct proof ( not be obtained.* These documents, though possessing no Iq Tl irecit |upw| the ktic tainJ ILel 1 Doe Maeklem v. TumbrUl. 6 Q. B. U. C 119. 2 Marvin v. Hales, 6 C. P. U. C. 211 ; Lyneh v. 0' 9 Q. B. U. C. 41, S Cov. Con. Bv. 818, JTora.eC.P. U. C. i Cov. Oon. Ev. 818; o«d.P OF SECONDARY EVIDENCE. 9 1339 validity, are often all the evidence that can be adduced ; and as it were by general consent the profession adopt them as evidence upon titles.* •'^ ■' '■" ••' '•<'?'';';; '"*;. u> KiiciM ■> .;.- ;* ;,•'; r c ;.»;/to- As legal evidence, such affidavits are clearly inadmissible ; they aie purely voluntary, and not being made in Court in any cause, they will not sustain an action for perjury ; then they are made expressly to support some point, and are, therefore, on the face of them not I of that pure and disinterested character which is expected from un- exceptionable evidence ; and they frequently contain nothing more than hearsay evidence : yet the conveyancer admits this testimony as corroborative evidence of general reputation and concurrent pos- I session.^ It should always appear on the face of the affidavit that the de- Iponent is likely to be acquainted with the facts, and reasonable I grounds for his belief should be stated.^ , , , , ^ , , , ,. i . , - ... r ... l Recitals. — Recitals or statements contained in acts of Parliament land in deeds, decrees, and other instruments, furnish very important 1 secondary evidence, t • r , , . , • '.h;i f' ui A recital is rather an interested witness, for it is seldom if ever I made with the knowledge and concurrence of parties having an adverse title ; it is a tale told by the party whose interest it is to support the deed, and, therefore, is not of that unprejudiced character which other evidence preserved without reference to any Iparticular transaction is impressed with.^ EV MA V>4 ' The general rule acted upon by conveyancers has been, that Irecitals and statements contained in deeds thirty years old or lupwards may be considered as good secondary evidence, and where Ithe facts recited are not very important, a purchaser may rest Isatisfied with such recitals without further evidence, even if con- |tamed in deeds of more recent date.* .i 1 Ue on Abs. 216 ; Uvbhack on Sua 68. ' • ^ J ' ' ;,,, ! As to evidence of general repuUttion in question of title, see Morewood v. Wood, 14 East, 327 ; Dunraven v. Llewellyn. 16 Q. B. 791 ; Weeks v. Spark, 1 M. & S. 679 ; Rex v. Antrobus, 2 A. & E. 788 ; Pivi v. Curell, 16 M. .'« W. 234 ; Willianui v. Morgan, 16 C^. B. 782 ; Doe d. Didsbury v. Thomas, 14 East, 328 ; Re Bell, 3 Clian. Ctiam. R. 247. 3 Cov. Con. Ev. 319 ; Re Harding, 3 Ciian. Cli»m. R. 233. * Cw. Con. Ev. 298 ; Lee on Abs. 364. S Lu on Abs. 860 ; Con. Con. Ev. 89^ rT5i^^ 1340 PROCEEDINGS IN THE MASTER'S OFFICE. Among the recitals deemed of minor importance, may be men- tioned such as relate to facts corroborated in part by other evidence, recitals of deaths, burials, marriages, births or baptisms ; the number of children in a family, the failure of issue, or as to one person hav- ing survived another, or that one was the executor or administrator of another, and as to the occupancy, identity or boundary of lands.^ Where the facts are very important, a purchaser should not rely on the recitals even of an old deed ; especially ifbetter proof aliunde! can be obtained. Thus it has been decided, that it is not sufficient to prove an important descent in a pedigree, for the vendor to set forth deeds which recite the pedigree, although the deeds arej upwards of thirty years old.^ Recitals as to the contents of deeds are more to be depended upon, than recitals as to pedigrees. Parties may themselves, with-j out any fraudulent intention, mistake a pedigree, the latter, there- fore, require to be more narrowly searched into.* A deed can] seldom be incon-ectly recited, unless through fraud or otherwisel intentionally, much, therefore, depends on the nature of the recital,| as well as its antiquity.* The value of the statements and recitals respecting pedigrees in old deeds, depends entirely on the circumstance whether possession has accompanied the deed containing the recital. If the deed itsell be not sanctioned by the acquiescence of parties, privies an(J strangers, the recitals in it are not entitled to much weight.^ Never-I theless if there be no apparent motive for misrepresentation, and th^ recital is borne out by forty years' undisturbed possession, tM conveyancers usually give credence to the statement.^ Recitals often have the effect of controlling the operation of deed, as more clearly expressing the intention of the parties. Bu| recitals cannot be allowed to restrain the operation of words in deed where those words are of plain as well as known import. Recitals in deeds cannot alone be taken as evidence again strangers or others not parties to the deed containing such recr 1 Lee on Abs. 860, 361 : Cov. Con. Ev. 299. 2 SlaTiey v. Wade, 1 M. & Cr. 358 ; Fort v. Clark, 1 Russ. 601 ; Anon, 12 Mod. 884. 8 Lee on Abs. 361 ; Cov. Con. Ev. 300. 4 Ibid. 6 Cov. Con. Kv. 800. 6 Ibid, 2r, 801. OF SECONDART EVIDENCE. 1341 may be men- other evidence, 013 ; the number Dne person hav- )r administrator ndary of lands.^ should not rely ter proof aliunde 1 is not sulficient tie vendor to set ti the deeds are| to be depended ihemselves, with-| the latter, there- of A deed canl aud or otherwise! ure of the recital,| cting pedigrees vhether possessioi If the deeditsel rties, privies an( h weight.^ Never- esentation, andtli led possession, tli« tent.^ ihe operation of f the parties. Bu| on of words in nown import. evidence again lining such reci I 12 Mod. 384. ; If it was otherwise, nothing would be easier than to insert recitals as the foundation of a good prior title ; thus a man might in a post- nuptial marriage settlement insert a recital of ante-nuptial articles which never existed, and so defraud his creditors contrary to the 13Eliz. ch. 5. . i. i Recitals are always taken as admissions of those who are parties [to the deed and interested in the property. Thus^ where a recital 1 occurred in a deed of settlement that the owner of the property had given a bond to another party, which bond was not produced as the execution of it could not be proved, the recital was held to be 1 evidence of the bond having been executed.^ But although a recital may be evidence as against parties execut- ling the deed containing the recital of the prior instrument, yet there ought to be some further proof to establish entirely the execution imd validity of the recited deed ;^ a bare recital of a deed, it has been liaid, is not evidence ; but where there are other facts, (such as lentries in a solicitor's books of charges for procuring the execution lof the deed), which corroborate the recitals,* or where there is other levidence that the instrument recited existed, then the recital may Ibe taken not only as evidence of the existence, but (as against the Iparties to the deed containing the recital), as evidence of the execu- kon of the recited instrument.^ It appears, therefore, that although recitals may be good secondary levidence of deeds which are shown to have existed but which have llieen lost or destroyed, yet the rule cannot be extended to those pes in which nothing is known as to the deeds to which the liecitals relate.® Recitals in a deed prepared by direction of a Court of Equity and lettled by a Judge or a Master, are more to be relied on than other 3, in consequence of the strictness with which facts and state- ents are required to be verified in the Master's office.' 1 1 itiit(«r«&ee V. I'VimnfTdon, 1 Swanst. lis. pinnandofe V. iTarrM,2 P. Wins. 434 . . VFordv. Lord Chrey, 6 Mod. iB. hSkipurUKy. Shirley, 11 Vos. 64. liflumet V. LjfncA, 6 B. & C. 601. I> Lee on Abs. 363. 1? Lm on Abs. 863. Se« Roe v. McNeil, I U. C. L. J. N. S. Ill, as to the effect of improper recitals in a Sheriff's deed. ili I .0 I 1342 PROCEEDINGS IN THE MASTER'S OFFICE. Notwithstanc^ing the fact that recitals afford such evidence of prior deeds, yet in regard to the consequences of that evidence, or | the notice given by them to purchasers, it is considered that such notice does not entitle a purchaser to demand an abstract of the | deeds themselves, although it may entitle him to require the inspec- tion of such recited deeds, if in the custody or power of the vendor, when they bear strongly upon the title.^ ,, .-i . i?/ ^rrj" '.' Presumptions. — In the absence of all direct evidence, presump- tion may, after a great lapse of time, aided by other corroborative I facts, such as uninterrupted enjoyment for a length of time and! acquiescence, or apparent acquiescence, of those whose claims are! adverse, be relied on, particularly where the importance of thel fact is inconsiderable.^ Thus possession is pHma facie evidence! of property, but the landlord may prove that the occupier is hk\ tenant by shewing a payment of rent or other acknowledgment.* In the case of births and marriages many facts may be adduced in support of the presumption of one from circumstances in con nection with the other ; for instance, the birth or baptism of child being proved, gives much weight to the presumption of marriage between the parties whose child it is stated to bej Proof of a marriage prior to the time of the birth of a child affordi grounds for presuming that such child is the issue of the partiei so married, if the mother be known ; and where a birth is prove a short time only after the marriage, the possibility that it is th eldest child of that marriage amounts almost to certainty.* In regard to marriages there are many grounds for raising presumption of marriage in the absence of direct evidence of fact. The parties having always lived together as man and wif^ and having in common reputation been received by their friend and passed as such ; children being described as the children A. and B. his wife ; their so styling themselves in wills ; and oth^ matters less important than these, if ancient in date, have bed allowed to raise the presumption of marriage in common cases.' ' jii' 1 Lee on Abs. 364. 2 Lee on Abs. 404. 3 Cov. Con. Ev. 320. 4 Lee on Abs. 464. „ „ i 6 Lee on Abs. 466 ; Baker v. Wilson, 8 Grant, 870 ; and see Doe d. Wheeler v. McWUliams, 2 U. Q. B. 77 ; 8 U. C. Q. B. 166. ' UBe UUt OF SECONDARY EVIDENCE. 1343 It is found by common experience to be a necessary presump- Ition that a person of the same name and conveying the same linterest as that limited to a person previously mentioned, is the [same person. Unless there is a great interval between any two 8, evidence of identity is seldom called for ; if such a chasm lexist it may be proper to require evidence of the occupation in the linterval. But where a deed was executed in a foreign country, lluring the progress of an investigation for quieting a title, for the Ipnrpose of removing a blot on the title, satisfactory evidence of [identity and execution were required.^ The dangers to which laccepting such a deed on its production without evidence of its jyalidity, would expose absent parties are obvious. The law never makes a presumption that acts are wrongly done, ^r that fraud has been committed, unless there is good ground for elieving such to be the fact ; presumptions, if made where nothing I known, are always that things were rightly done, or in favour of rder and regularity. ^ ,..1.4 . ,/, In the absence of all proof or knowledge of facts there can be presumption except what the law itself points out. In some ases an inference may be made from nothing being known to lie contrary for a series of years. : t . 1 1 ^ , i I -.rfi r -WiT: .'•('' , I'M In any case of alleged quiet possession or of no claims made, here can be no presumption where there is no knowledge, except ach as can be drawn from acquiescence, or apparent asquiesence, I the title of the party in possession ; thus where no adverse claim been heard of for a length of time, quiet possession may be ferred or presumed.^ •,^• ' ;■ ^ fv , ; 'l^ •j* r» / !• i( f.-'t K It is the practice of Courts of Law, where a person has not been heard of for a number of years, to presume his death after seven pears, but a seven years' absence without tidings is not sufficient I raise this presumption with conveyancers* Every case must fepend on its own particular circumstances, and no certain period »n be fixed which will raise the presumption. It has been ad- nitted by Courts of Equity after twenty years, in one case after der V. ifcWUliam«M UKtHay, 29 Jan. 1868.- \iLeeon Abs. 466. 2 Lee on Abs. 466 ; Cov. Con. Ev. 819. 4 Dart on Vendors, 316. M 1344 PROCEEDINOS IN THE MASTER'S OFFICE. fourteen years, but in a recent case after absence and silence of nineteen years, the Court refused to presume death where the circumstance^ rendered it improbable that the party, if alive, would havJ communicated with his friends.^ Where a man who was abseni in British Columbia for several years, corresponding regularljj with his family, wrote that he intended leaving about a certain day to return home, and was never afterwards heard from, evij dence having been given that about the time mentioned in hia letter he was seen at San Francisco to go on board the steamei Golden Gate, which was on the same voyage lost off the Coast oi Mexico, his name appearing in the list of passengers returned m the company with the word ** lost " written after it, and diligenlj enquiry having been made ^or him without success, death was, in a proceding under the act for Quieting Titles, presumed after nm| years.^ Scarcely any length of time will be sufficient to compel an unwilling purchaser to take a title depending on such a pre] sumption of death, unless made with reference to the age of th| party said to be dead ; and if the party whose death is asserted was, when last heard of, very young, the period must be thai beyond which human life does not commonly extend.^ If m presumption to be made is, death without issue, it is doubtful if i court would as against a purchaser ever make the presumptioij within the period of sixty years.* .... Copies, Drafts, and Abstracts. — When a deed or will has beeij lost, and diligent search is proved to have been made in the prop places of the proper persons,* and the subsequent enjoyment h been consistent with its alleged contents, a counterpart, ^ an ancienl copy,^ and a fortiori, an old attested copy,^ or a copy enrolled foj safe custody,® the rough draft of a release, especially if the origina bargain and sale for a year be forthcoming,^® an old abstract," partij cularly when it appears to have been pursued by professional peij 1 Bowden v. Hendemon, 2 Sm. & G. 860. 2 Re Harris, 1872. 8 Lee on Abs. 466. 4 Ibid, 467. 6 See 2 Vef. 90. As to what will be held to be reasonable diligence in such a case, see liex v. FarUigh, 6 Dow. & Ry. 147 : Maedougal v. UogaHh, 8 Bli. 41 ; Bligh v. WtlleaUy, 1 Carl Pay. 400. The decree of diligence to be used in searching for a deed must depend on the \i portance of the deed, and the pai-ticular circumstances of each case. QuUy v. SUhop of £»te| 4 Bing. 290 ; and see Lorton v. Gore, 1 Dow. N. S. 190 ; Rex v. Inhabitants of Stourbridge, i " & C. 96 ; 2 Man. & Ry. 43. 6 Anon. 6 Mod. 226 : 1 Lev. 26. 7 Lady Oritjin v. Boyntnn, Nels. 82 ; Medlicot v. Joyner, 1 Mod. 4 ; 2 Atk. 72. 8 TTarvey v. PhUlips, 2 Atk. 541. 9 // t's case, 11 Mod. 109 ; Combes v. Spencer, 3 VmM\ 10 Whitfield v. Faumet, 1 Ves. 389 ; Ward v. Oarrwne, 17 Yes. 134. 11 Bull N. P. OF SECONDARY EVlDENrK. 1345 sons, and that ()bj(?ctionH to the tith; have hcen iiuule and answored, ' will all bo admittiul as evidence of its contents ;'- nor will the force of such evidence be destroye etfect;'^ and the deed may tht'iv- fore have contained important particulars not noticed in the memo- rial, such as a proviso for redemption, a trust and other varioiisl exceptions and qualifications. Copies also which are examined with the originals, and which are! sworn to he true copies, are admissible in many cases, althoiiglil there he no proper officer api)ointed to make them, if the remova of the original would be attended with difficulty or danger. Thud copies of the journals of the houses of parliament,' or of the transftrj books of the East India or other public Company, will be admittc as evidence, if the originals are admissible.^ Extracts. — Extracts from documents of a doubtful character,! cannot be received as evidence. The original must be producedl that the court may judge Ivy inspection of the admi.ssibility even the document itself.*^ Mecitals. — In modern transactions recitals are not to be relieil on, except so far as they are evidence in themselves by way nft estopjiel ; but so far as they state other independent evidence, a] letters of adTnininti -.tion, probate and deeds, between third partiesj (fcc, the lettere of administration, deeds, tfec, must themselves produced.il B\it recitals of births, survivorships, &c., in old deeds, are vei^ frequently admitted in evidence, particularly where the transactioil is not very important, and the expense of furnishing the best evij '> jus Iwk, it' (lie po^is^•ssion lias IV'en accord ill;,' to tlicni, >iiiy estoppel, altlioii^^li tliey will n(»t Itavc tliis operation as to a getniral stateiiKnt.'* In a later case,* rhore a vendor insisted that he was not iMHind to i-stahlish hy ex- jinsic testimony the truth of leeitals in (KmmIs of l7.).S, Ijord (iiflbrd, R., was of opinion, tliat ihese lecitals, whatev( r etfect they niiglit lavo between the parties to the deeds, could not, as against third Lrsons, he any evidence of thc^ facts recited in them. If evi- Hence had l>een given that possession had foliowc'd ami accompanied [he matters therein recited, that enjoyment would have l)een a itrong cii'cunistance to piove that the facts actually were as they rere stated ; Vnit there was not the slightest i)ioof of any possession [rom 1737 to 1793 in th(»se through whom the title was traced.'' pd where the rights of creditors are concerned, recitals in a deed 1 1703 will he held to Ite no evidence." ,, , \' Although letters patent inider the great seal are of the highest kiithenticity,'' yet recitals, in such letters, of facts which will admit lit' higher prpof, will not be admitted in 3vidence, unless the grant fountled upon such recital, as the consideration for the grant.** Ill proceeding on tlie abstract the Master will bear in mind that [eiii to certify on two points, — one being whether or not the vendor make a good title, and the other at what time lie had shown a 0(1 title — this latter enquiry is necessary in order to guide the roiiit as to the cost of the leference. A vendor does not shew u m\ title by producing and furnishing to tlie ])nrchaser an abstract [liowing on the face of it a good title ; he does so only when he leiifies such abstract " * 'anion, Doug. MO. Il Oirdir'U V. MackrUl, Aiiib. Sl.5. Yh'ml V. Gray, ISalk. 285 ; Anmi. 12 Vin. Al). 223, pi. l.'i ; Comb. 341 ; Moo. 44: Marchloiu'xs of Anmnrlale v. Harris, 2 P. Wms. 4S2 : Cowp. 595 ; Ski'iii'lfh v. Shirlcu, 11 Ves. fi4 ; Eiheartts v. V.rwn, 1 do. & Jer. :W. |3 StcHei/ V. Wright; W\\\ti»,^\ Reexw lAmid, Wis; I'age'x case, ."> Co. 53; Qilh. Rv. 14. I ■ '■•.'.'. All. Ors. 7SI ; M:>,it(i',nu; v. Pi\ntun, 2 VoilL. 170 : ;i i i sm! Cniijn w Dill.-r ul' SnrMk, " l.in. 1 I'W . and ius t«i .Lritiils iii a justice's order, si'c Rvx \ iSug.V.&V. 119. .- . . V - UP. Wms. 746. &Mor$headv. Frederick, ciiadSug.y.&V.VM,Hli. ■ 6 Laehian v. ReyiwUn, Kay, 62; see also Calvert v. Oodfrey, Beav. »7i 106, 110 ; Gneaell v. Peto, 2 Sni. & O. 89. 7 Bromage v. Davie*, 4 Jur. N. S. 683, V. C 8. ^ , . 8 Utttkorpe v. Pennynum, 14 Ves. 617. JI5 i 1354 PROCEEDINGS IN THE MASTERS OFFICE. The application by a purcliaser to be discharged in tliese cusi is made by motion, notice of which must be served on the paitit to the cause.^ Where the purchase money of any purchaser who is entitled t be discharged, or any part thereof, has been paid into Court, will be ordered to be repaid to him, if still in cash. If it has bee invested on his oun application, he must take the amount of tt stock, notwithstanding any variation in the price ;- but if tl investment has been made on the application of any of the parti to the suit, the purchaser is, it would seem, entitled to the b which he paid in.^ , r , -a « , -v:. i.j;'.. am , The former purchaser must be discharged, before the Court ca ('.ive effect lo a resale of the j^roperty,* '' ' Sevoral purchasers may join in one application for an order fJ payment of their purchase monies; but the different amouul must be kept separate/'' Where two or more persons purchase on lot, the money must be paid in in one sum, for the Court will nij allow them to pay their proportions separately, on account of confusion which might ensue. •* Only the solicitor conducting the sale, (who acts for all the m ties,) is entitled to appear on the application to pay in the pm'cbaij money ; and he must take care that the amount to be paid iij including any interest or valuations, and the time when possessit^ is sought are correctly stated. It is clearly the rule that, on a special case, as where a purchascj is entitled to relieve himself from paying interest, the Court w receive the purchase money, on the application of the purcbasej without his accepting the title ;^ but, in such case, he will not 1 permitted to take possession of the property, till he accepts title.8 1 Sherwood v. Bcueruge.'iUe G. & S. 42:".. 2 llodder v. Ruffin, cited Sug. V. & P. HO ; and see Tmapsett v. Wickcm, a Sm. & G. 171 ; 2 H '.S. 10. a See Humphries v. Harm, 3 Hare, 270, 279. 4 WUUamti V. Wace, C. P. Coop. 42 ; 1 0. P. Coop. t. Cott. 379. 5 Seloii, 1195. 6 Darkin v. Marye, 1 Aii«t. 22. 7 Por I,(>rii eotteiiham in De Vimiie v. De Vmne, 1 McN. & G. 344 ; and see Barker \. HanitrA eo.»i>. 32 ; llutton v. MaiMell, 2 Beav. 260 ; flUidla v. Dakin, 1 C. P. Coop. t. Cott. 378 ; 01 Oooit :«l ; Oeiiifuieif v. UeKipxiii, 1 De G. cS; hi. 691 ; Morris v. Bull, 1 De O. & S. 691 ; V-'A 4, ii.(«.) ; OWi'li'i V. AimtriU/Ki; 11 Beav. 399; Rutley v. Gill.ZDe G. & 8. 640 ; but see/" ning v. Ihmlerxoii, 1 De G. & S. 689 ; 11 Jur. 687 ; liuttor v. Marriott, 10 Beav. 33. 8 Uutton V. Mansell, and Dempsey v. Dempaey, De G. & S. 601. f'ICK. jod in these cits( ved on the partii who is entitled aid into Court, ih. If it has bee he amount of tl n'ice ;- but if tl any of the partii utitled to the m rk^-V fore the Court ca on for an order (( different amouu sons purchase oi the Court will ni on account of tt Bts for all the pai >ay in the pui'cbai mt to be paid i iG when possessio I where a purchasi !st, the Court w of the purcbasei ise, he will not ill he accepts I 3m, 3 Sm. k G. 171 ; 2 J Au8t. 22. 1 see Barker \. Harixr, . P. Coop. t. Cott. 378 ; t. 1, 1 De G. & S. 691 ; 12 Ji )e G. & 8. 640 ; but see iott, 10 Beav. 33. OK SECONDARY KVIDKNCK. l.S.V) The application to pay in without prejudice may be made by motion, notice of which must be served on the solicitor conductinj^ the sale ; and should ask merely for leave to pay in the money without prejudice to any question as to the title to the property, and that the money may not be paid out without notice to him. When ho is prepared to accept the title, he should apply again by motion, notice of which must be served in like manner, for an order to let him into possession, or receipt of the rents, and for the execution of a conveyance to him by all proper parties. , , ,,,,,, =(•(1, A purchaser of a freehold estate is not entitled to the rents, for a period anterioi to the quarter day preceding the payment of his money, merely because he has been ready to complete his purchase, and has had his money lying idle in his banker's hands ; for he might have applied to j)ay the money into Court, without prejudice to his objections to the title, when it would have been invested.^ If a purchaser enters into possession of the estate without the sanction of the Court, he will be considered to have accepted the title, and be compelled to pay the money into Court at once ;- although he entered with the permission of the parties the cause ; the Court only can give such permission.^ A purchaser of a reversionary interest will be ordered to pay interest on his pur- chase money from the time of his purchase.* In the case of the sale of a life interest in the public funds, the purchaser is liable to interest from the time of the contract, and is entitled to the next dividend which becomes due after the sale, even if it be the foUow- ing day.^ On the sale of an annuity, secured by deed and payable quarterly, a different rule appears to prevail, for there the pur- chaser is considered as entitled to the annuity from the day on which the certificate of the result of the sale becomes binding, he paying interest from that day.^ Where the purchaser buys subject to an existing tenancy, it is usual for him, on completing his purchase, to obtain from the soli- citor conducting the sale, a letter to the tenant, informing him that 1 Bark&r v. Uarper, G. Coop. 32- i ., '> 2 WUding v. Andreias, 1 C. P. Coop. t. Cott. 380. 3iWd.; Sug. V. * P. 105. 4 Trefml* v. Lord Clinton, 2 Sim. 3ui) ; and see Wallk v. Sarel, 5 De G. & S. 429 ; Bailey v. Collett, 18 IJeuv. 179. 3 AimoH V. Toivgood, IJ. & W. 037. 6 I'utigg v. Fifield, 13 Ves. 517 ; and see Veaey v. Elwood, 3 Dr. & War. 74. ¥m ft" i 135G PROCEEDINGS IN THE MASTERS (JFKICE. tlu! property has been sold to the purchaser, and that tlie lattir i^ entitled to the rents thereof from a specified day.^ W . A party contracted to purchase lands of personn not cai)able o selling, without the authority of this Court, which was subsequentlj obtained. The purchaser having in the meantime gone into posses sion of and improved the property, afterwards applied to be relievti from the purchase, and to have the improvements paid for out o the estate, alleging his inability to carry out the bargain. Th application was granted in so far as he sought to be relieved fron the purchase, and he was declared to be entitled to be treated ai the pm'chaser of the widow's dower, but the Court refused to maki him any allowance in consideration of his improvements, or ti order the return of the money he had paid.^ The following were cases on bills filed for specific performance but the principles on which the Court proceeds in compelliu; party to accept a title on a bill for the purpose are applicable cases which arise on a purchase under a decree. Senible, that from the peculiar mode of dealing with landed estates in this country, the Court will not introduce the stiicj English rule with regard to waiver of title by acceptance of posj i session. . Although at law the right to dower is, during the life of tlij vendor, a nominal incumbrance only, the purchaser has a right i Equity to compel its removal, or to have specific performance i the contract with an abatement in the amount of the purcbasi money in respect of such incumbrance.^ This case is importanj for in many references to the Master as to title the question i dower arises, and as at law, it is not looked upon as more than nominal incumbrance, an opinion is prevalent that it is so equity. But this case decides that it is an interest in the proper which must be removed before the purchaser can be compelled I complete his purchase ; or that if he is willing to accept ttj 1 Where the possession of the tenant is hostife, it seems that the purchaser may be dischan Lachhm v. Reynolds, Kay, £2, 64. 2 iU Yaggie, 1 Cham. Rep. 62. 3 Morin v. WUkinaon, 2 Grant, 157. 4 Van Norman v. Beaupn, 5 Grant, 61 ""^ op SECONDARY KVIDENCE. 1357 that tlio lattir rchasermay bedischars property with this incumbrance on it he is at liberty to do so, and I ill that case he is entitled to a reduction in the purchase money. In a subsequent case the Court refused to enforce a contract for Ithe sale of land, which was subject to an outstauidng claim for I dower, until the title to dower was removed.^ In the case of Chantler v. iTice, referred to,^ it was held that [where property is sold upon credit, and the vendor executes to the purchaser a bond for the due conveyance of the estate, free from encumbrances, on payment of the last instalment of the purchase money, the purchaser cannot, dm-ing the currency of the term of credit, call upon the vendor to remove a mortgage created by him upon the property, or to allow the purchaser to apply his purchase money as it becomes payable in discharge of the encumbrance. In a case decided in 1854, several years before the decision in the case of Gamble v. Gummeraon it was held that where a party agrc(is to convey property, he is bound to do so free from dower ; or, if the wife will not release her dower, then to convey subject thereto, with an abatement in the purchase money .^ But a sale of land for taxes, I under the Wild Land Assessment Act, destroys the right of the widow of the owner to dower.* The principle involved in the ease of Spohn v, Ryckman is I. similar. It was there held, an appeal from the Master's report, that a purchaser is entitled to call for a release from all judgment credi- tors who have registered their judgments in the county where the lands sold are situate, or that the creditors join in the conveyance to the purchaser, although it appears that the purchase money will be exhausted in discharging prior incumbrances. If the vendor I cannot procure such release or concurrence in the conveyance, the Court will not compel the purchaser specifically to perform the contract.^ ■-■■ V ■ :*•• '^.^: "•'■ ■ The purchaser of real estate on which was erected a grist mill in pursuance of the' agreement for purchase took possession, and 1 6a»t6{e V. &ummer«»n, Grant, 193. ■"'. 2 Chantler v. Inee. 7 Grant, 432 • ' , i Kendrewv. Shewan, iOnxit, 518. 4 7wniin«(»t V. J/t7{, 6 Grant, 231. 5 Spohn V. Ryelnnan, 7 Grant, 388. I..4. j', r W 1 .S.'xS PROCKKDINriS FN TlIK MASTKH S OFKli'K. while ill (K'cu))nt/i of rostorin;!^ tin; |yrop(!rty to tlic condition iji wliieli it was wlicn Ic ciitovd into poHscsssion was variously (istiniatod at from CI 00 t) £M)(). Ifrhl, that hy thosfi acts the purchaHor had waivi-d his iii;'])t to call for a. <^ood title.'. Where a contract for the salo of hnildin^" lots provided for the immediate posseHsicm, and for th*^ ])ayment of the purchase money in eight annual instalments. Ildd, that the cr(>ction of two work shops on the lots by the vonroperty between them when they dissolved their partnership, m)r the acceptanco of a conveyance at another time of another lot, said to depend on the same title, any waiver. In a suit against purchasers for specific j)erformance, the Court lefused, under the circumstances of the case to order the purchase money into Court, pending a reference as to title, though the defendants were in possession.- » . Where a party went into possession under a contract for the pnr- eliase of a lot of forest land, in order to clear and cultivate it, aiK tliereby raise the purchase money, which Avas to bo paid by instal- ments. On a bill filed by the })urchaser for a specific performance of the contract. Held, that he had not, by going into possession, waived his right to a reference as to title, and that he was bound to ])ay his purchase money into Court pending the enquiry before the Master.^ - Where a purchaser takes possession before conveyance, he is liable to interest from the time of taking possession, and the lia- bility is not limited to a period of six yeare."* A purchaser, before the time appointed for the completion of a contract for the sale of land, and \N'hile the investigation was in progress, went upon ami cleared a portion (about two or three acres) of the land sold, and sowed the same witli turnip .seed, which it m as necessary to do, or lose the whole season ; he did not, however, harvest the crop, but 1 Coiinnf.rcM UaiU- v. McComwll, 7 Grant, .■?23 ; aiid see Leslie v. Preston, 7 Grant, 434. 2 Dai'by v. Gtrenleeg, 11 Grant, S.ll. 3 Keefe v. Taylor, 2 Grant, 30.'> ; and see Jackson v. Jesmp, 6 Grant, 156. 4 G-reat Western Railway Company v. Jutwx, 13 Grant, 355. )an( U! t ight On iient 1)1' a !0od li leiit pal istrt act t rilh how It scin ■oen le V if til oral ngc hat itle, jig; On ifth( lie ] ionti axes It lit heg 1 m in ;: .Iff t Ciij OF SKCONDAIIY KVIPKNTK. 1359 Lbamlotiod tins posHossioii cnt-irrly in coiisiMincnc*' of olijcctions to [lie titlo not luuii^ nMnovcd. Ht'lm |ir^i|i| •■• Ik 1360 PROCEEDINns IN THE MASTEllS OFFICE. t% J f •I Chambers.' Per Spragge, V. C, " Wliat yoti ask, hIiouIcI, I think] have formed part of the original decree. In tlie case of a purchasij under the decree of the (?oiirt an application of this kind wouhi properly l)e nm ponvcyaTico thoy Itliev may 'l<^ *^<> ; f'»i"a roferoncn to a Mastor to sottlf its t«M'ins is tuiccs- Laiy only when thoy (litter. The erii!H'd and )ip])roved on hehalf I of the neccHHary parti . f,horeto.2 On a Hah; under a decree, all jM^rsons havin*^ a lej^al interest in [the pro})erty, whetlusr parties to the suit or not, shouhl concur in the conveyance; hut th«' purchaser is not entitled to the concur- rence of any persons heinj^ parties to the suit, or otherwise l)ound by the proceedings therein, whoso interests are merely equitable.'*' Where in an administration suit, property was .sold upon credit, [part of the purchase money to be paid ar the expense of both deed and mortgage.^ In ordinary cases, the English lule among convey- ancers i.s, that the vendor is at the expense of the deed, and the vendee of the mortgage, and this is the usual practice in this coun- try. But in our Court, one c(mditioa in Schedule P., referred to in Order 370. is that "The purchase)- shall have the conveyance pre- " pared at his own expense, and ten SimpHon V. Simpion. I ('ham. Rep. 360. 9. 04. -i Monre v. Shinnem, 1 Chain. Rep. 69. S Hi- Ihxtflcs, 1 Grant, 2S5. 4 linn II V. Hevnn, 1 ('. 1^. iJnoii. t, Cott. 381. I'lohably now, \v< iv a i)uieliaHiir to he sfnilty of iin- |ir(i|ier delay in |'i'«|mriii)j and tenderint; his oonvp.vinici', iifter the Ihnitation <>( a tiinr lor ''is so doinff, tho ilulribiUion of his purchase money, oii noiiis to him, wonld not Ijc withhcM on the mere t^rounil tliat ho had not ifot IiIh cnnveyrnou. 13G4 PROCEEDINGS IN THE MASTERS OFFICE. The courne of proceeding under such a direction in i)ointed out by the 76th of Lord Lyndhurst's Orders/ which provides that where a Master is directed to f/^ttle a conveyance, in case the parties differ about the same, then the party entitled to prepare the conveyance shall bring the draft of the conveyance into the Master's Office, and give notice of his having so done to the other party. This notice may be given by serving the usual warrant " on leaving " ; after which the other party is at liberty, within eight days, to inspect the same without fee, and to take a copy thereof, if he thinks proper. If the party is not prepared, or likely to be prepared, at the end j of the eight days, to adopt the conveyance, or to state his objections | to it, he should apply to the Master for further time, which the | Master is, by the above order, empowered to grant at his discretion P If he does not obtain an extension of time, he must, at or before the expiration of the eight days, (or having obtained such extension, at or before the expiration of such further time as the Master in his] discretion shall allow,) either adopt the conveyance or signify his dis- sent therefrom, which he must do by delivering a statement, in I writing, of the alteiations which ho |)roposes to make in the draft of the conveyance, serving, at the same time, a warrant on leav- 1 ing.' If the party does not signify his dissent, or deliver a statement. in writing, of his proposed alterations, within the eight days, or such further time as the Master may have appointed for that pur- pose, the Master, at the expiration of the eight days, or the further time which he has appointed, may proceed to settle the conveyance according to the practice of the Court, which he must also do where a statement of proposed alterations has been delivered, and thej party bringing in the draft refuses to accede to them. It is to be observed, that, by the 76th order* it is directed, that! in case the Master shall adopt the proposed alterations in the draft! of the conveyance, then the costs of the proceeding in respect of thej conveyance shall be borne by the other party. 1 Ord. 1828, as ain<>:ilaintifts, requires notice to be served on the mort- gagor where he has appeared by solicitor."^ A mortgagor wlio lias, in the course of a foreclosure suit, duly redeemed the property, is | not obliged to accei)t a simple discharge of the mortgage, but may at his o])tion have a vesting order of the property.^ An application for a vesting order was made on behalf of the plaintiff, who wa-s also the purchaser of the land sold in the cause. No objection was made to the action by any of the defeuilants, but it was thought that in such a case a vesting order could not be granted, inasnuicli as the Court could not compel the defendant to execute a convey- ance to the plaintiff. Several cases were cited, in which a vesting order had been made in favor of the plaintiff, who was also the purchaser of lauds sol^ in such suits ; but it was considered that such orders were improperly granted, because the facts had not been fully set before the judges before whom the applications were made.* . ..: , . ..,,,. . .;. ^ ;.-,... .,..., .■„.^,^ It may here be noticed that the Court will direct the costs of a guardian to be paid before granting a vesting order to the purcha- ser.^ Where the plaintiff, who was the mortgagee in fee of lands sold under the decree, had become the purchaser thereof; an order vesting the lands in the plaintiff as such purchaser, although acqui- esced in by the defendant, was refused.* Where in a suit by credi- 1 21 L. J. N. S. Cy. 437. a McMcMter v. Kempthall, 1 Cham. B«p. 329. 3 Ellis V. Ellin, 1 Cham. Rep. 267. 4 Bowtmn v. Fox, 1 Cooper's C. & P. R. 63 ; 2 U. C. L. J. N. S. 5 Thome V. Chute, 2 Cham. Rep. 221. Bowen v. Fox, 1 Cham. Rep. 3ti7. i^ PROCEEDINGS IN OBTAIN £N(J THE CONVEYANCE. 13(){) tors to set aside a settlement, lauds were ordered to be sold, and the proceeds paid into Coui't ; a purchaser at'te)- couiinnation of sale paid his money into Court, and had. his conveyance prepared and tendered for execution to the trustees who were absent from the jurisdiction, and who refused to execute it ; a vesting order was granted, au Poviell, 2 Cox, 394. 2 Morrii) v. Ciarknon, 3 Swanst- 558, 507. 3 Ueming v. Archer, 9 Beav. 366. 4 See Settm, 1187. 6 Barton v. Latour, 18 Beav. 526. 6 Jimvley v. A.daim, 16 Beav. 312 ; Strt,ng v Strung, 4 Jur. N. b. 943, V. C. S. ; NobU v. Stow, (.No.| 2), 30 Beav. 272. 7 Where thesecurity is merely equitable, a conveyance is not in g^eneral necessary. 8 Seton, 237. ■^1 PKOCEEDINGS IN OUTALNINO rHK C'ONVEVANCE. o^l 187 acf s" But if 111 may arrange with the incumbrancers that their chargeu shall he kept on foot as against the estate and the purchaser only, ami apply for the sanction of the Court to the aiTangenient.* Wi.ere the pur- chase money has been paid into (^ourt, the j)arty conducting the sale may apply, that, upon the execution by the incumbrancers (if proper parties) of the conveyance to the purchaser, the amounts due to them may be paid out of the purchase-money." We have hitherto discussed the course of proceeding to complete a sale, as applicable to those cases only in which the purchaser is de- sirous and willing to complete it himself. It may, however, happen, that, after he has been allowed as the purchaser of a lot, he becomes unwilling to complete his purchase : in that case, it is the duty of the solicitor conducting the sale, who acts on behalf of all parties, to take the necessary steps to compel him. The rule, that the report on the sale must have become binding by being coufinned before the contract can be considered as complete, applies equally to the cases in which it is sought to compel a i)urchaser to complete his purchase, as to those in which he himself seeks to enforce the contract.-^ As a preliminary step, therefore, it is necessary that such certificato should have been filed in the usual manner, and the time have ex- pired for appealing against it. ' • V .. If the purchaser neglects to pay in his purchase-money in due time, the Court, on being satisfied that he has accepted the title, or is precluded from objecting to it,^ and that the time for payment has expired, may order him to pay his purchase-money into Court by a limited time ; and in default may direct a resale. The application for the order is made on motion, by the solicitor conducting the sale. The notice of motion must be served on the purchaser, and be sup- ported bj'^ evidence of his default.^ The motion may either be con- fined to the object of obtaining a compulsory order for payment of the purchase-money : in which case, if default is made in payment, an order for a resile may be obtained on a subsequent application ; or it may also ask that, in default of payment, a resale may be dir- ected, and the purchaser ordered to make good any deficiency in mi i C. S. ; NobU V. Stow, (>o. i;For form of order, see Setvn, 120a 2 Seton, 237. 3 Amn., 2 Ves. J. 335 ; Vincent v. Ooiny, 3 Dr. & War. 75, n. (a.). 4 RtUter v. Marriott, 10 Beav. 33 ; Bxdmer v. Alinvn, 8 Jur. 44 J, V. C. W. ; Seton, 1194. 5 For form of order, see Seton, 1194. 11 )».., 1372 1»H0CEE1)IN0S IN THE MASTEll's OFFICE. I 1 in price thereat, and the costs occaHioned by his default ;' but tlnl purchaser should not be|lischaryed from his pvuchase.- If, on th( hearing of the motion, it appears that the purchaser ought not toljt| considered as having accepted the title within the meaning of the conditions of sale, he may ask for an inquiry whether a good titlel can be made : in which case he sliould, on a separate motion, obtain! an order for .'an inquiry into the title, and prosecute such ordei- iul the usual way. . * If an order to compel the purchaser to pay in his purchase monevj is made, it must be served personally upon him ; and, if not coui-r plied with, it may be enforced by attachment and other process. A sale before the Master was not within the Statute of Frauds) and after confinnation of his rejiort, the sale might be enforced against the representatives of the purchaser, although he had noti signed the contract : the judgment of the Court taking it out on the Statute ; and this rule no doubt still prevails.** The CourtJ however, cannot enforce the contract against them without a suitj but it will allow the heir to have the benefit of the contract, upon payment of the purchase money, leaving it to him to compel the! executors to reimburse him, if they have assets ; and, where thej heir refused to accede to this arrangement, the Court directed i resale : reserving the consideration as to any deficiency that might] arise on the resale, and by whom the costs of it were to be repaid,*' If at the hearing of the application to'compel the payment of tlid purchase money, the purchaser can show any sufticient cause wliy ^]iQ contract should not be enforced, it will be rescinded ; but as general rule, where a sale has been fairly and properly conductedj and the party is able to complete his contract, he will be held strictly to his baigain. ||Where, however, the contract is inequitableJ 1 Gray v. dray, 1 Btav. 109 ; S. C. twrn. Sauiulets v. Gray, 4 M. & C. 515, n (a.); Itarding'^f Harding, 4 M. & C. 614 ; 8 Jur. Ilb4. It is prenumed that a resale may be directed, witlu'iij giving the purch4ser the option uf |>aying in his purchase money ; see Foligno v . Martin, 14 BeaT. 686 ; Sweet v. Meredith, 4 Gifl. 207 ; 9 Jur. N. 8. 569 ; but 8ee RoberUon v. SMtw, m Beav. 91, where a purchaser was allowed to complete after an order tor a resale. L 2 Gray v. Gray, and Hardittg v. Harding, tthi nup.; but see Holder v. Ruffln, 1 V. & B. 544 ; Cmil nmgha/ttt. v. Wiiliatns, '2 Anst. 844. Where the purchaser became bankrupt before completioDl and the assignees declined to complete, the Court held that the deposit paid by him was forfeited^ and ordered a resale ; Depree v. Bedborough, 4 OiiT.t479 ; 9 Jur. N. S. 1817. 3 Sug. v. & P. 109, citing Attomey-Gemral v. Day, 1 Ves. S. 218. 4 Lord V. Lwd, 1 Sim. 608-605. ICK. default/ but tlu! liase.- If, ou thi- er ought not toljt; e meaning of the tjther a good title )te motion, obtain ute Huch ordei' in is purchase money ; and, if not cum- I other process. ^ Itatute of Frauds; light be enforced tiough he had not t taking it out of rails.3 The Couit, m without a suit ;he contract, upon lim to compel the I ; and, where t Court directed a ciency that might ^ere to be repaid* he payment of the fticient cause why scinded ; but as a operly conducted, b, he will be held ract is inequitable, I. 515, n (a.); Harditvj v. may be directed, witlwiil see Pnligno \ . Marti\\,\i i Hobtrtson v. SkeUoti,li r fur a resale. iuffin, 1 V. & B. 544 : Cm- nkrupt before completion. it paid by him was forfeited, 1817. ^^ PROCEEDINGS IN OBTAINING THE CONVEYANCE. 137S J the Court will relieve the purchaser as well as the seller.' Where^ (), it is clear that the purchaser is not a responsible person, it is sometimes found to be more beneficial to the parties that he should be discharged at once from his contract, on his submitting to for- feit his deposit, if any, and paying the costs, than to incur the expense and loss of time attendant on keeping him before the Coui't till after a resale. In such a case, an application for the anction of the Court to the arrangement should be made, supported by an affidavit of the facts ; and the purchaser must be served, and appear and consent. .' Where it was discovered that the purchaser was insane at the thne of the bidding, he was discharged from his purchase ; but the Court would not direct the next best biy an aftidavit, of the original andsub-imrchascrs, or one of tlicni.sljowing thorc wa.H nocoUuHionor under- bargain hct\vc(»n th(fni hcforc the report on s.i'c was hinding, or disclosing the tertiis of tlie under-hargain, if any,'* as it appears, that if a ptircha.sor re sell holiind the hack of the Court before the report of his being a ])UirhaHer has become binding, the second pifrchaser is considered a sdbstituted purchaser, and must pay the additional price into (^ourt for the bencHt of the parties to the suit.^ Where tlie high',- !> bidder ;it an juiction induced the auctioneer to accept another pp'. .lon in his place, concealing the fact that he had sold his bargain at an advance, which he received and then absconded, the property was ordered to be resold, reserving all ((uestions of liability of the original oi' sub-purchaser.'' After the report has become binding, tlu^ j)urchaser inay resell at a profit for his own benefit ;* and if the purchase money has been ])aid into Court, an order to substitute the sub-purchaser will not be essential to entitle him to call for a conveyance, with the assent of the original purchaser, for the ordinary form of order under which pui'chase money is paid into Court directs the conveyance to be made to the purchaser, or as he shall directs Where the purchaser entered into a sub-contract, but died before its completion, and his heir was abroad, the sub-purchaser was substituted, on paying the original purchase money into Court.^ The practitioner has now conducts 1 h case nearly to an end, In the case of foreclosure he has i\ ed the fin; order of fore- closure ; in the case of a sale he i > seen that me title is good 4 1 Christian v. Chamberis, 4 Hire, 807. For form of order, sec , inn, 1207. 2 Righy v. Maenamara, tt Yes. 515 ; and see form of order in Setnn, 1207. 3 Righ'i/v. Mf!?fanmra, nhi .t/io.; i'dlf v Davenmrt, Ves. 615 ; Holrni/I v. Wyatt.iV '1.32"; 9 Jur. 107-:! ; Scton, VlOi ; ami see DMrell v. Tufmll, 1 K. Jt .1. .'124. 4 Uodder v. liufftn, Taml. 341 ; Sug. V. & P. 100. 5 Holroyd v. Wyatt, 2 Coll. »27 ; 9 Jur. 1072 : In R,: Settled hUtates Acts, 4 Giff. 90 ; S. C. mm. Rt Ooorfwirt, 8 Jur. 1173, a rj Dctoell V. Tnffndl, 1 K. & J. 324 ; Suij. V. te P. 100. 7 See form of order, Seton, 1103 ; and see Matahett v. I'alnier, and fJaire v. Lovitt, citfd •'>. I'M, whore the orii^inal puruha-ier liivl died after payment, but before conveyance. For f . a of wii- vcyance to a sub-purcliajier, the oriicinal piiivljiisor joining, soe 1 /'/•«Vif rtita; Couv. 243. 8 Pearce. v. Pcaree, 7 Sim. 138. PPOf'FKDINOS IN OHTAINIVO TTIK CONVKYANrF. 1375 d V. Wyatt. 2 C 'I. 327 ; that fch«* convoy an cnH aw ('.\>'(M«t«Ml, and that iho ])ron('0(ls of tlio |laco. Kut another point is to l»c eonsider<'d. In the case of a sale, it ol't(^n happens tl;,it the [)rocf'cda aie insnfheient to pay the plaintifi'. It will he nfnunnlieied, that hy Order l-.H, the purchase linoney is to he ajiplied in payment of the anioinits found duu to the Iplaintirt', and to the other incurrdjrancerKai^eoiding to (lieir priority; and Order 455 provides that, " In tUt; event tt^ the |)ui"chaNe money lieiujuf insufficient to pay wliat has been found due to the plaintiff for principal, interest and costs, suhsecjuent intcrt^st, and subsequent [costs, the plaintiff is to be entitled (where the mortgagor is a defen- [dant, and such relief is inaye*.! by the bill) to an order ex parte for payment of the deficiency." ..... I » I In such a case the plaintiff must proceed in the Master's office in I the usnal way : take out and serve a warrant, underwritten, " To yoke mibaequent account ; tax suhMeqiieuf conts ; ascertain the defi- \(micy now due to flic plaintiff; aiid Kettle and sig'n report a8 to mjicie,ncy." On the costs being revised, the Master settles and signs his report in the usual way ; ))ut this report does not require Iconfirmation, and the plaintiff may obtain his order for jjayment of Ithe deficiency ex parte from the Registrar, on which he proceeds to I obtain »,fi.Ja. or other process, as described in another place. If the bill were taken or noted pro confenm against the defendant, larid if he filed no traversing note, this account may be taken ex Vmie ; but otherwise a warrant must be served, un; ■ii' When the title is ajjproved by the conveyancing counsel, and the draft conveyance or mortgage settled by him, such draft, or a fair copy thereof, is left at Chambers,^ and an appointment obtained and served to proceed thereon. At this appointment, the final opinion of counsel on the title should be produced ; and if the opinion is satisfactory, the draft conveyance or mortgage will be settled and marked for engrossment.* An affidavit must be made that the engiossment is a correct transcript of the draft settled at Cham- bers ; and on production of an office copy of the affidavit, with the engrossment and draft, the Referee or Judge will sign a memorandum of allowance in the margin of the first skin of the engrossment, and will write his initials on each of the other skins. The draft of his certificate that a good title has been made, and that the convey- ance has been settled, will then be issued, and an appointment given to settle the draft. On attending such appointment, the solicitor having the conduct of the proceeding should produce an affidavit showing that the searches directed to be made by the con- veyancing counsel for judgments, lite8 peruhntcH, crown debts, or other incumbrances, have been made accordingly, and that none have been found, or as the case may be.^ This affidavit should, in 1 Ex parte Christ's UospHal, 2 H. ^ M. 166-168. 'W^^?- '^W' (^t Hi^fl.t^.i^^*!^! ^>l^ 2 Re Shejleld and Rotherham Railway Company, 1 Sm. & O. App. 4 ; hut see Ex parte Chriit't Hospital, 2 H. & M. 166-168. 8 If a copj- Ih Icf^, a certificate, siinied by the solicitor, that it is a true copy, is usually required. 4 As to conveyances, see Sug. V. & P. .i.'iT-SUS ; 2 DamdHon, Conv. 169-205 : 1 Pridaatue, Conv. 122- 145 ; as to covenant for title, Svg. V. & P. 572-616 ; l>art, 360-364 ; 1 Davidson, 100-146, 188-20:i: •* 1 Prideaux, 188-140 ; and for ionn» of conveyances, 2 Davidson, 466 ; 1 Prideatix, xvii.-ixi., 162-296 , as to hku tgage decils, see 2 Davidson, 497-726 ; 1 Prideaux, 309-354 ; and for forms, • " ib. xxii -xxvi., 359-514; 2 Davidson, (m. For the ordinary conveyancing charges inconuDon cades, see Morgan & Davey, 600, et seq. 6 A.< to Marches (or inoumbranceN, see Dart, 802-;t24, 768 ; 1 Prideaux, Conv. 108-121 ; Sug. V. & P. 616-548, 847 : and as to relief from incumbrances, Sug. V. &. P. 46s-^>66, The conveyancinir •- of-unael should always specify, in his opinion on the title, what sear«. 'es are to be made, uil f against whom. 4* ,itle, the matter (1 Chambers, at J.' ^anciiig counsel not shown, yet hase was sanc- bs, to be desira- was an infant^ soimsel, and the draft, or a fair nt obtained and he final opinion r the opinion is I be settled and made that the ittled at Cham- davit, with the a memorandum igrossmeut, and The draft of his lat the eonvey- an appointment jpointment, the >uld produce an lade by the eon- crown debts, Gl- and that none idavit should, in It see Ex parte Chriif* , is usually required. 1 Pridaaux, Oinv. Va- ivicUtOH. 100-145, 188-203; ; 1 rrideavx, xdi.-xxi . 30tt-354 ; and for forms, ciiig charges in coimnon -V. 108-121; Svg.y.ii^' MO. The conveyMwiiK B8 anj to be made, Mil PROCEEDINGS IN THE MASTER S OFFICE. 1379 strictness, bring down the searches to the date of the Referee's certificate approving the title, and should be sworn on that day. The certiiicate, when settled, is completed* in the usual way. ^ The engrossment of the conveyance or mortgage having been allowed as above explained, is then executed by the necessary parties; and if the order directs the Referee to certify such execution, an affidavit of the execution is thereupon filed, and an office copy procured and left at Chambers with the deed, and with an office copy of the certificate approving the title. From these locuments, the Referee will prepare and issue his certificate of execution, and certify to whom the purchase or mortgage money is to be paid * On production of a copy of the certificate of execution and of the order directing the payment to be made, the accountant will issue a cheque for the money to the person named in the certi- ficate. It is to be oDserved that these proceedings are, in this coun- try, usually taken in the Master's office.^ Partnership Suits.— A decree for the dissolution of a partnership ordinarily directs an account to be taken of all dealings and transac- tions between the partners : either generally, or from the foot of the last stated account, or other specified time ; and also an account of the credits, property, and effects due and belonging to the partner- ship; and directs a receiver to be appointed of the outstanding debts and effects, or provides some other means of realisation.^ Upon the return of th^ warrant to proceed on the decree, directions will be given as to the person by whom, and the mode in which, the account is to be prepared and brought in ; and where deemed expe- dient, the employment of an accountant will be sanctioned. This is the English practice before a Judge in Chambers and our order 541 provides that the Court may call in the assistance of accountants ; |but the Master has no such power. Where it becomes necessary for parties to employ an accountant in order to prepare proper accounts . .. r---- .-' ^' • -., ■■ - -..;. '-, : : ,w ,. T • (ii* »S)? ■inftt') /■.■.«.<■».. 1 / . I In Homu of the Ohatnben, it in the prautiuu not to ia^ue any certificate till the deed liaa been execu- ted. In such case, one oertifloate is made w umbraco all the objects of the two certiflcatei men- tioned in the text. . , 1 As to the enrolment nt the conveyance, under the Mortmain Act, see Ex parte Chrut's Hon- pUal, 12 W. R. 669 : V. C. W. Where enrolment is required, the certificate of execution should not be issued till the oonveyanoe has been left at the Enrolment OAce, and the receipt of the Clerk of Enrolment is produced. S |iV)r the law reMpeoting private partnership, and the praoti- " in suits rolatiuj; thereto, see ^ da. Cont. 686-668 ; L. 0. Merc. 27»-861 ; Lindley on Part, vil.xxi , ib. Sup. 1-180 ; Seton, 642-561 s and for various forms of decrees and orders in such suits, see Seton, 540-661. n r. n T it 'I i? 1380 PROCEEDINGS IN THE MASTERS OFFICE. for the Master's office, they must do it at their own expense ; though in a proper case, the party going to this necessary expense, will, if successful in the suit, probably be allowed the outlay on the taxation of costs. It is usual, however, for the parties to consent to the em- ployment of an accountant, and that his charges should be paid out of the estate ; but without this consent he cannot be employed with- out an order of Court. Where a sale is directed, with the approbation of the Master, or a receiver has to be appointed, the practice is the same as in other cases. On the proceedings before the Master being brought to a conclusion, the result is reported by him in the usual way. Management of PropeHy. — The institution of a suit against trustees, for the administration of the trust estate under the direc- tion of the Court, does not preclude the exercise of the discretion given to the trustees, by the instrument creating the trust, as to the appointment of new trustees, or the management of the tiust estate ; but the trustees are required, after the institution of the suit, to act under the control of the Court.^ Alter a decree has been made, the powers of the trustees are thenceforth so far paralysed, that the authority of the Court must sanction every subsequent proceeding : thus, the trustees cannot conimence or defend any action or suit, or interfere in any other legal proceeding, without first consulting the Court as to the propriety of so doing ; a trustee for sale < mot sell ; and an executor cannot pay debts, or deal with assets for Ltie pur- pose of investment.^ Applications for the sanction of the Court, in such cases, are usually made by motion, supported by affidavit or other evidence of the facts. «.», t»( JaJfl w t:/!ulia**v.ore, 3 Drew. 277. As to the duties of trustees and executors, in respect of outstandinir property, see S L. C. Gq. 733 9, 2 Spence Kq. Jur. 923-4. !E. expense ; though expense, will, if Y on the taxation iiaent to the em- 3uld be paid out i employed with- )f the Master, or same as in other ng brought to a al way. f a suit against under the direc- of the discretion be trust, as to the ' the trust estate ; of the suit, to act 18 been made, the ralysed, that the lent proceeding: action or suit, or st consulting the sale < ■ anot sell ; jsets for ttie pur- ion of the Court, ed by affidavit or ...jf j ifi^ y action, suit, or ctual practice, is | or defence. estate is directed applications may] V. JTorl «i^ Shaftetbuty. ham, 16 Beav 550^ Pm' Ian, 32. is not, after decree, »^ MtHtre, 8 Drew. 277. )erty, see 8 L. C. Bq. 738 PROCEEDINGS IN THE MASTER'S OFFICE. 1381 be made by motion for leave to sell or convert the same, or to take proceedings or accept a composition in respect thereof^ Among other subjects of application at' Chambers, relating to the management of property under the direction or control of the Court, may be mentioned : investments in the purchase, or on mortgage, of land ; repairs ; ^ renewing leases ; ^ and cutting and selling tim- ber.* ■.'', ">'■ , : " Where the sanction of the Court or Master is necessary to the let- ting of property on lease,* the terms thereof are reduced into writ- ing, in the form of an agreement conditional on the approval there- of by the Court.® A notice of motion, or a wan-ant for an order to carry such agreement into effect is thereupon served ; and the appli- cation is supported by the production of the agreement, and by the affidavit of a land agent, or other competent person, stating the grounds on which, in his judgment, the agreement should be adop- ted. The power to demise on the tenns of the agreement must also be shown, by the production of the probate of the testator's will the settlement, or other evidence thereof If the agreement is ap- proved, an order is made, directing it to be carried into effect, and that the lease to be granted pursuant thereto be settled by a Judge or Master either absolutely or in case the parties differ. Where it is necessary ibr the Master to settle the lease, a copy of the order, if drawn up, is left at his Chambers, and a warrant to settle the lease is taken out and served; the draft is brought in and settled, by hira, with the assistance, if necessary, of conveyancing counsel ; the draft is then engrossed, and the same steps are taken as in settling a deed ; and thereupon, if desired, the Master issues his certificate of the result of the proceeding : which is completed in the usual manner.^2 Raising Money hy Sale or Moi^tgage. — Where an order directs money to be raised by a sale or mortgage of an estate,* upon the 1 For various forms of orders relating to outstanding; estate or securities, see Seton, 180 101. 2 Seton, 600-610-613. 8 Seton, 513-521. 4 Seton, 606-513. 5 A« to powers of leasing, see S%iq. Pow. 711-886 ; Sug. Stat. 810-313 ; Shelf ord R- P. Acts, 083-6,60.5, As to oontracts between landlord and ten.nt ; the rights and liabilities of the patties ; and ju- dicial procedure, see WoodfcM, ix-xii., 1-820-682-086; see also Add. Oont. 314-376; Dixim, xili.-xv. ; L. C. Conv. 240-278; 1 Piatt, xi.-xxvii.; 2 Piatt, 82-154; Smith'a Comp. 660-676; WiUiams' R. P. 862-381. 6 As to agreementa for leases, see 6 Davidton, Con v. 1-18; and tor forms of agreements for leasfts, and of leaaea, see 6 Davw'^ron, 19-82, and 06-472; Woodfall, 966-907. As to agriculturul customs, see Diacon, 1-87, 480. 7 The certifloate is sometimes dispensed with : the allowance in the margin of the lease being deemed sufficient evidence of the lease having been settled. 8 For forms of orders, see iSetott, 244, 246. 1l 1 1382 PROCEEDINGS IN THE MASTER'S OFFICE. return of the warrant to proceed on the order, or at an adjoura- ment thereof, the proximate sum required is ascertained, and the mode of raising it determined upon. Where the amount is to be raised by sale, the sale is conducted and the purchase money paid into Court, and subsequently dealt with, in the manner hereafter stated. ' Where the amount is to be raised by mortgage, and a person willing to advance the rnoney has been found by the parties, an abstract of the title to the esiate proposed to be mortgaged is furnished to his solicitor, by whom, or whose counsel, the title is investigated, and the draft of the mortgage prepared.^ A copy of the draft is then left in the Master's office, and is settled there, in the same manner as other deeds. At this point, the precise sum required is usually ascertained, for which purpose subsequent interest will be computed ; and the costs, including the costs of the mortgage, will be taxed by anticipation, and certified by the Taxing Master.^ The total amount to be raised having been ascertained^ the draft is engrossed and approved by the Master, as in other cases. An order will then be made on motion approving the mortgage giving leave to the mortgagee to pay the money into Court ; and directing that, upon such payment, the mortgage be executed by the proper parties, who will be named in the order.^ Upon produc- tion at Chambers of an office copy of the Registrar's certificate of the payment having been made, and an affidavit of the due execution of the mortgage, a certificate will be made of the manner in which, or the peraons to whom, the amount raised by the mortgage is to be applied or paid ; and on production of a copy of such certificate, the Registrar will pay the money accordingly. This is a general descrip- tion of the practice. The precise mode of paying money into and out of Court will be pointed out in another place. "'t,''"' ■,' 'i ■■'■■'" . I Apportionment of Deficient Fund. — Where, from a deficiency in the assets or any other cause, a fund has to be apportioned amongst 1 As to inserting: a power of sale, see RutaeU v. Plaioe, 18 Beav. 21 ; aud as to the mortgaiee'i I counsel, see Ifieholson v. Jeyei, 1 Eq. Rep. 34, L. JJ. I 8 Setan, 248. The coats of the mortgagee should be indnded in the ooota of the plaintifl, or other I party having the conduct of the oauM : tb. 8 For form of order, see S»ton, 246, Nq. IS. )l ^^ PROCEEDINGS IN THE MASTERS (JFFICE. 1383 a class/ the fund, if small, is usually directed to be apportioned in amounts to be verified by affidavit.^ In oth< r cases, the apportion- ment is directed to be made by the Master, in which case, upon the return of the warrant to proceed on the order directing the appor- tionment, a concise statement is directed to be brought in, showing the fund to be apportioned, the charges upon it, and the persons amongst whom and in what amounts, it is divisible. If any costs are payable out of the fund, they will be taxed by anticipation. A certificate of the apportionment, showing in a schedule the amount payable to each person, and the debt or sum in respect of which it is an apportionment, is then made and filed, and upon production of a copy thereof to the Registrar he will pay the apportioned amounts accordingly. ^ j-:;.: ml , Appointment of New I'rmtees. — Where, by a decree or or ler, new trustees are directed to be appointed,^ upon the return of the warrant to proceed on the order, or at an adjournment thereof, evidence should be adduced, showing the eligibility of the proposed uew trustees, and their consent to act if appointed. The consent should be in writing, and their signatures thereto are usually re- quired to be verified by affidavit. A concise statement, showing the interest of tho parties, and the nature of the property subject to the trust, is also sometimes directed to be brought into the Master's oflice. When the persons to be appointed are approved, an order appointing them will be made ;* and the order will afterwards be drawn up by the Master. After the order has been made, the Court will not enter into the comparative merits of the several persons who have been proposed by the different parties.^ .^ "' Where the decree or order directs a conveyance of the trust estate, to the new trustees, to be settled by the Master,^ a draft of such 1 As to the distinction between real and personal, aud \egi\ and equitable assets, see Uaddan, 06-79 : 2 L. C. Eq. 88-104 ; Ram on Assets, 181-203 ; SmiWs Comp. 500 j Trotecr, 268-275 ; Williamii' Real Assets, 1-14 ; and for the principles on which assets are applied and distributed in equity, see Haddan, 90-139; Ham, xix.-xxvii.; Smith'ii Coiup, 602-514: Trotcer, »5-306 ; WUltaiim' Real Assets, 95-118. •,• »,,*i<>u'Ui . i See fonns of orders in Seton, 141, 142, 243. ^ ■ '' ^ ' J >V,'^ i. 3 Upon proper evidence of fitness, and acceptauee of the trust in writing, the Court will nominate the trustees in the order : see Seton, 780. As to the appointment of new trustees, aud vesting the trust estate, see Levoin, 419-430 ; Set(m, 780-2. As to the duties and powers of, and allow- ances to, trustees and executors, see Lewin, 220-380-406-418 ; -nd see 2 L. C. Eq. 208-228, 733- 766 ; Seton, 762-8, 764-770. For fonns of decrees and orders relative to the appointment of new tru^iees ; breaches of trust ; ohargitt|r with interest ; and costs and etpenses ; see Seton, 748-770, 778-78SL 4 Wdt»on V. Moore, cited Seton, 779. 5 Attormii General v. i>j/(toH, 9. 8. & 8. 528 ; Middleton v. fieay, 7 Hare, 106 : 13 Jur. 116. 6 It seems that this U directed ub >olutely where infants or married women are interested, and in all other cases conditionally upon the parties differing : see Seton, 778. m cm '& anuu/:- . - ■■ /' ^ ' " '• ;■ ■ ■.-; ^'', ' Infants. " ' ' / "■' .'*-*V Appointme/iit ami Remioval ofOuardian.s. — The power of appoint- ing guardians,* and making orders for maintenance, constitutes a part of the general and important jurisdiction which the Court of Chanceiy exercises for the protection of the property of infants, and the safe custody of their persons, during their minorities ;^ and this iurisdiction has lonj; been exercised in a summary way. This is the English practice under the Imp. Stat. 15 & 16 Vic. eh. 80. Our order 197 is taken from sec. 26 of that Act, and gives the Judge in Chambers power to dispose of matters relating to the "Guardianship, maintenance and advancement of Infants." Tlie words used in the English Act are " applications as to guardianship and maintenance of infants." So that the power of our Court is rather more extensive in terms, than that of the Court in England. It may be observed, that this power is quite irrespective of that conferred on the Court by our Statute ch. 74 of Con. Stat. XL C. sees. 8, 9, 10, and 11, — the provisions of which will be noticed in another place. i ».'?t ».T,jit J It would seem that the proper mode of proceeding in this Province is by petition ; though in England it is optional to proceed either by petition or summons. It is not necessary to file a bill in either country. ; .;.;v 1 For forms of couveyunce, see 2 Prideaux Coiiv. 411-422 ; 4 Davidnun Oouv. 685-632. 2 Bayley v. Matuell, 4 Mad. 226 ; Bowleg v. Weekx, 14 Sim. 691 ; Oglaiuler v. Oglander, 2 De G.& S. 381 : 12 Jur. 786 ; Holder v. Durbin, 11 Beav. 094 ; and seo Seton, 348, 361 ; Ijewin, 649. 3 As to the various kinds of guardianship of infants, see Macphergoth on Infante, 2-114, liii-lxii. : Chamber* on Infants, 64-80, 861 ; 2 L. C. Kq. 663-&70. As to th« appointment of guardians b; the Court of Chancery, and its control over guardians, see Maepherton, 96-101 ; Ix.-lxii. ; Chanr berg, 81-105, 158-200. 862-4 : 2 L. C. Eq. 070-688 ; Seton. 702, and the late rule of our Court 4 For the origin and history of ttiis jurisdiction, ae« Co. Litt. 89, a Hart/rave's note (70), sec. 16 ; ■ Fonb Eq. 226, n. ; F. N. B. 282 ; Story Eq. Jur. sec. 1327, et «eg.; ifacpherson on Infants, 96 ; 1 Spenee, Eq. Jur. 611, et seq ; WeUetley v. Duke of Beaufort, 2 Rum. 120 ; 8. C. nam. WeU» Uy y. WtUMley, 2 Bligb, N. S. 124 ; Ex parte Birchell, 8 Atlc, 813 ; Re Bond, 11 Jur. 114, V. C. K. B. ; Jones v. Powell, Beav. S46 ; Be Neaie, 16 Beay. 260; Carr v. lAwifng, 88 Beav. 644. INFANTS — PROTECTION OF PROPERTY, ETC. 1385 npi> yi.rUfiUA'-y In a suit for the purpose, (amongst other things) of having a guardian appointed, it is not the course of the Court to direct a reference to the Master to appoint a Guardian, but only to approve of one to be afterwards appointed by the Court if it sees fit. It is iiTegular to give a reversionary guardianship of wards of Court to the successoi's ill office of any named person.^ ....;-/^ ^i . ^«i'(«i«il< Where a suit is instituted for the direction of the Court in relation to the estate or pei-son of an infant and for his benefit, or for the administration of property in which ho is interested, the infant, wlicther plaintiff or defendant, becomes a ward of Court the instant that the suit is connnenced.^ In this character, he is considered to be under the particular care of the Court; and he is equally entitled to its protection, whether he is under the immediate tutelage of a father, of a statutoiy or common law guardian, or of a guardian appointed bv tlie Cou'i; ; but the Court does not assume to itself the actual guardianship of infants* ,\f ) The Court will, upon the petition of the Guardian duly appointed by the Court of Probate or Surrogate interfere summarily, and order the person of the infant to bo delivered into the custody of such Guardiau, when there is danger of the infant being removed out of the jurisdiction, although no suit is pending in Court respecting the infant's Estate.* The provisions of the Provincial Stat. 22 Vic. ch. 93 have not the effect of excluding the jurisdiction of this Court, in respect of the appointment of Guardians to infants.^ On a bill by a wife for alimony and the custody of children who are under twelve years of age, the Court has jurisdiction to grant the latter relief with- out a petition.* There was a contest in a Surrogate Court between the step father and uncle for the guardianship of a child of ten or eleven years old; the child preferi'ed her step-father, andtheSuiTogate Court appointed him guardian ; but this Court on appeal, being 1 Murphy v. Lanphier, 12 Grant, 241. 2 Maepherton, 103 ; Hitghes v. Science, ib. App 1 ; Ambl. 302, Ed. Blunt, n.; 2 Eq. Ca. Abr. 756, pi. 14. 3 Maepheriion, 103" ; and see Story Eq. Jur. see 1862 ; Eyre. v. Countess of ShaJUbury, 2 P. Wms. 118 ; Ooodall v. Uarrh, 2 P. Wins. 560, 562 : Butler v. Freeman, Amb. 302 ; Hughes v. Science, ubi sup.; Wright v. Naylor, 5 Mad. 77 : Wellesley v. Wellesley, and S. C. runn. Wellesley v. Duke of Beaufort, 2 BHgh N. S. 124, 2 Russ. 120 ; Gynn v. GiUtard, 1 Dr. &; S. 366 : 7 Jur. N. S. 91 ; Stuart v. Moore, 4 Macq. H. L. 1 : 7 Jur. N. 8. 1129 ; S. S. nom. Marquis of Bute v. Stuart, 2 Oiff. 682 : 7 Jur. N. S; 866. It «eemii, also, that if no suit is pending;, an infant may be made a ward at Court, on a petition presented for that purpose : Re McCviloelu, Dm. 276 ; see also Re Bishop, Maopherson, App. 5, 4 JteOW^M, SOraat.STV. ..> • 6 Re Stannard, Infants, 1 Cham. Bep. 16. f 6 Munro y. Munro, 16 dnnt, iSl. m W; k f I- I 1380 I'RUCEKDINOS IN THK MASTKKK OFFICE. satisfied from the evidence that it was for the real interest of the child that the uncle should be guardian, revised the order Ixjlow. ^ The Court has an absolute right in its discretion to give the custody of a child under twelve years of age to the mother. The Court ex- ercised this right where the only evidence that the parents were living apart through the fault of the husband, was the evidence of the wife ; holding, that the Court might, in its discretion, in the interest of the child, direct the custody to be given to the mother iu cases where the cause of her living apaii. is on her own statement justifiable ; and the Judge is not prepared to say that he disbelieves such statements.^ ona on . wiiu ji hj-jl-i^ xi y/Mnnn 'jjj.). Where a fund, iu which a female infant was interested, had been paid into Court under the Trustee Relief Act,' and an order made for maintenance thereout, it was held that she thereby became a ward of Gourt.^ n.ivi 1'i'i /,« h .ru.in uu ?»•/• ) i^iui tvjr nutHiU In order that the benefit arising from the protection of the Court may be extended to all cases in which interference is desi- rable, it is permitted to any person to commence proceedings on behalf of infanta ; subject, however, to the risk of incurring the censure of the Court, and of being compelled to pay the costs of the suit, in the event of its subsequently appearing that the pro- ceedings were improperly instituted.® So far as the jurisdiction of the Court relates to the appoint- ment of guardians and the protection of the persons of infants, it does not seem absolutely necessary to allege, as a foundation for the interference of the Court, that the infant is possessed of pro- perty f but there can scarcely occur a case where the Court can be called upon to interfere, unless the infant is possessed of some property. According to Lord Eldon, in Wellealey v. The Duke of Beaufort,"^ the Court is not in the habit of exercising jurisdiction over the persons of infants, except in cases where the existence of ,: ' '(',■ 1 Re Irwin, 16 Onuit, 461. , , . . , , , 8 it« Dovff, 8 ChBin. Rep. 277. OTJ^ .vtifiniTi '.J h.'JJ'vyMD /ilftlfwji v; -j/.twv 3 10 & 11 Vic. oh. 06. This statute is in force in this Province— per Strong, V Q , ite Wade, 18 Gnnt, 4S7. 4 Be Hodget, 3 K. & J. 213 : 3 Jur. N. S. 860 ; and see A: Boon, 4 Qiif. 264. 6 Starten t. BaHholomevi, 6 Beav. 143 ; Sale v. Saie, 1 Beav. 686 ; Foa v. Suwerkrop, 1 Beav. 583 ; BavenM. KeH, 2 PhU. 602. JZ« £ipefie<, 2 Phil. 247. 262 : ReFynn.ilita. & S. 457 481; and see ITope t. ilojM, 4 De O. M. & G. 328,348. . ...... 7 8 Rubs. 80, 21. r -. w li intereBt of the le order l)elow.^ give the custody The Court ex- le parents were the evidence of iscretion, in the to the mother iu [' own statement lat he disbelieves crested, had been d an order made iiereby became a \irotection of the srference is desi- I proceedings on of incurring the pay the costs of ng that the pro- \ to the appoint- [>ns of infants, it tb foundation for jossessed of pro- the Court can be ossessed of some / V. The Duke of sing jurisdiction 3 the existence of VC,,Jl« rode, 18 Grant, A. . SitMerfcnip, lB«»v. 683; >pe T. Bopt, 4 De O. H. & KVFANTS — PROTECTION OF FKOl'KKTY, ETC. 1387 property has brought them within the power of the Court ; but it is not from want of any jurisdiction that it does not act, but from want of means to exercise its jurisdiction, because the Court cannot take upon itself the maintenance of all the children in the kingdom. It can exercise this jurisdiction usefully and practically, only where it has the means of doing so, that is to say, by its having the means of applying property for the use and mainten- ance of the infants. Where, however, the infant was the child of an English father, who had been naturalized iu America, the Court appointed guardians for her, although her property was real estate situate in America, and she had been clandestinely removed thence by her paternal relatives, iu breach of an injunction from tin American Court restraining her removal, and guardians had been appointed in America.^ i{ ni> (l-^ ^•.•■■.■fi■n•.^r^tt'fr^' Where a suit has been instituted by bill relating to property in Wiiich infants are interested, and guardians or maintenance are required, it is usual for the decree to give leave to the infant to make such application iu Chambers for the appointment of a guardian, and for an allowance for maintenance, as he may be advised,* in which case, the decree is prosecuted in the usual manner. - * - • : .^. An application in a suit, whether commenced by bill or adminis- tration order, may also be made at Chambers, at any time, for the appointment of a guardian, an allowance for maintenance, or matters connected therewith. If the infant is a party to the suit, the application is made by an ordinary motion. If he is not a party ' the first application is made by a petition in the form used for pro- ceedings originating at Chambers, which is intituled in the matter of the infant by his next friend, and in the suit ; but subsequent applications in the same matter and suit are made by an ordinary motion. .11- ^ In a suit for maintenance out of the property of the infants, the Master is usually directed to inquire and state what would be a T-,t 1 IU Daumn, Datofon v. Ja^, i Stti: & 0. 190 :'B. &'n(m. Damon v. Joy, He Dav>»oh,i Jar. N. S' S7 ; 8 De G. JL ft G. 764 ; ■nd see Johnttone y. Beatie, 10 CI. A F. 42 ; a. C. nom. Beatie ▼' Johnstone, 1 PhU. 17, M. 6 Jfur. 871 ; StuaH r. Moon, 4 Macq. H. L. 1 : 7 Jur. N. & U» ; S.C nam. Marg[ui» €f BuUf. Stuart, 7 Jnr. S56 : aotfl. 689. 2 Seton, 702 ; and fonn, Stton, 009, No. 1. ;i "•15 1388 PROOREDINdS IN THK MASTER'h OFFICE. r M proper HUin to allow : but no authority Ih given for the payment until the report is brought before the Court for its approval— the object being the more etfectual protection of the interest of the infionts.* ,. "", ■".""/. " , ." "^ I Z' . ■;", Where no suit is pending, the application should be made by petition under the summary jurisdiction of the Court.^ The petition must be in the form used for proceedings originating at Chambers ; and it is prepared, issued, and served, where the service is necessary, in the usual manner. The petition is intituled in the matter of the infant by his next friend: whose written authority to commence proceedings must be filed. , : . Where the only object is the appointment of a guardian of the peraon, the appointment may be made under the summary jurisdic- tion of the Court, however large the property may be ; and there is no necessity for filing a bill' The fact of the father of an infant being alive, is not in itself a sufficient reason to prevent the Court interfering, for, if a sufficiently strong case is made, a person will be appointed, without suit, to act as guardian during the lifetime of the father. lu Ex parte MontfoH, Lord Eldon said, " I have no doubt that, in certain cases, the Court will, upon petition, without a bill, appoint, not a guardian, which cannot be during the father's life, but a person to act as guardian ; though in modern times the Court has professed to be very cautious upon that."* Nor will the Court decline to appoint a guardian because the infant, being four- teen years old, and entitled to real estate, has by deed appointed a ?uardian for himself ' - ;- ' < ; -. ' ; The Court of Chancery has jurisdiction over the'^custodfy of children of British subjects, although born and domiciled out of England ; and will, upon their coming |within the jurisdiction, .■•II.. . !;;r , 1 'i 1!.'.;^ ■>'■ • i a.^-nh- \ r.i ■ 1 Murphv V. Lanphier, 12 Orant, 241. 2 It may 09 observed that, in such cases, ordinary Jurisdiction by bill is not excluded except by ex- < press enactment : Hyd% v. Edward*, 12 Beav. 160 : thouvh the party refusing to avail himself of the summary jurisdiction may have to pay the costs : Thamat v. Walker, 18 Beav. 521. ., 8 Re thike of NexeeastU, 16 Ves. 447, n. (b.) ; and see Ex parte Motmtford, 16 Yes. 446-447. 4 16 Ves. 447. *'or form of order in such a cise, .see Seton, 700, No. 3. The following cases may be referred to for the principles oii which the Court appoints a person to act as guanSan during the lifetime of the father : Wilcox v. Drake, 2 Dick. 681 ; I/yont v. BUnkin, Jac. 246, 854, and cases there cited ; WeUealey v. Duke of Beau/ort, 2 Russ. 1 ; S. 0. nam. WOUtUy ▼. WeUedey, 2 Bligh, N. S. 124 ; JRe England, 1 B. Jfc M. 400 ; Jfe F^nn, 2 D« O. ft S. 457 : 12 Jur. 718 ; Thomat V. fio6er«« 3 De G. & S. 758 ; ilnon. 2 Sim. N. & 64. 6 CoAan V. CoAan, 18 Sim. 680. K. 'or the payment I approval — tlu; interest of the I lii- Id be made bv .2 The petition J at Chambers ; ice is necessary, the matter of ity to commence guardian of the mmary jurisdic- be ; and there is her of an infant vent the Court a person will be 5 the lifetime of bid, " I have no ition, without a ing the father's )dern times the '* Nor will the ant, being four- )ed appointed a ^iu Oil, ^: ,^11)^1' 1 the'^custody of omiciled out of he jurisdiction, sxcluded except by ex- ising to avail himself oi ', 18 Beav. 521. ISVes. 446-447. followinsr cases may be as guardian during: tlie Jac. 246, 264, And cases tlUiley r. WeOailey.i ': 12Jur. 713; Thomai INFANTS — APPOINTMENT AND REMOVAL OF OUARDIANS. 1389 appoint guardians for them ;^ and the Court will appoint a guar- dian for an infant who is out of the jurisdiction, if his property is situate here, or under the control of the Court ; but it is usual to require that the parent or one of the guardians, should be within the jurisdiction.'* ■ . . , /".>,» vr By the 12 Car. II., ch. 24, it is provided that the father of any child under the age of twenty-one years, and not married at the time of his death, may, whether such father is within the age of twenty-one years, or of full ago, by deed or by will,* dispose of the custody 9Cid tuition of snci> child in such manner as he rihail think fit, for and during such time as he or they shall respectively remain under the age of twenty-one years, or any lesser time, to any per- son or persons in possession or remainder. And Huch disposition of the custody of such child will be good and effectual against all persons claiming the custody or tuition of such child as guardian in .socage or otherwise ; and such person or persons to whom the custody of such child is so disposed or devised, may maintain an action of ravishment of ward or trespass against any person or per- sons who may wrongfully take away or detain such child, and may recover damages for the same in the said action for the use and benefit of such child. And such person or persons to whom the custody of such child is so disposed or devised, may take into his or their custody, to the use of such child, the profits of all lands, tenements, and hereditaments of such child, and also the custody, tuition, and management of the goods, chattels, and personal estate of such child till his age of twenty-one years or any lesser time, according to such disposition as aforesaid, and may bring such action or actions in relation thereunto as by law a guardian in common socage might do.* , , The 12 Car. II. ch. 24, only enables the father to dispose of the custody of his unmarried children ; but it seems that, if a male child be unmarried at the time of the death of his father, the testamen- tary guardianship does not determine until he attains the age of 1 Johnitone v. Beatic, Dauum v. Jay, and Stuart r. Moore, ante; Hope v. Hope, 4 De O. M. & O. 328 ; and see Dawson v. Jay, Re Dawson, 3 De Q. M. & O. 764, as to a guardian talcing an infant ward out of the jurisdiction. 2 Logan v. Fairhe, Jac. im ; Loekwood v. Fenton, 17 Jur. 127, V. C. S. ; and see Stephens v. James, 1 M. & K. 627 ; De Weever v. Rochport, 6 Beav. 301. 3 The guardian himself may be one »f the attesting witnesses : Morgan v. HatcheU, 19 Beav. 86 : 1 Jur. N. a 126. 4 Sees. 8, 9, 10. Formerly a Roman Catholic could not be a guardian, but the disqualification was removed by the 10 Geo. IV ch. 7. Il'l V > in IM •«^ m ■ I: M w 1390 PROCEEDINGS IN THE MASTER'S OFFICE. twenty-one years, .-»ot withstanding his marriage ;* though in such a case, the guardianship of a female would necessarily determine by marriage.* The Act confers authority upon no person except a father ; and with respect to a father, it has reference only to legitimate children.* . , . A testamentary guardian is subject to the control of the Court, * both with respect to the property and the person of the infant ;^ and the Court may remove him and appoint another guai*dian in his steaa. or may, without removing him, appoint another person to have the care of the infant.* Ao a general rule, however, the Court does not remove testamentaiy guardians, but makes orders to regu- late their conduct.' (if.!;/ t (,T. , ' I v/ f .-;iV) I 1', ■•.■■.ti.r Although the Court is in the habit of paying respect to the wishes and directions of a testator in reference to the guardianship and care of his children, it will not do so where it is clearly shown that a oompliance therewith would be prejudicial to the happiness and moral training of the infants." 'f c tr;uoi .)(• Where a testamentary guardian has once taken the trust upon him and acted as ^ardian, if it is sought to remove him for miscon- duct, a bill must be filed ; but not where he has decli^aed to act ; for that is as if there had been no appointment of him as guardian. " In such cases, a guardian should bo appointed, in a summary way ; and the mere circumstance of a dispute concerning the person to be appointed guardian is no reason why the application should not be made without suit;'*^ althourh it is a reason why no order should be made without an inquiry .^^ ' ..-.i. f^ Upon the application for the appointment of a guardian, evidence must be adduced to show : the ages of the infants ; the nature and 1 Karl of ShatUbury'» euw, cited 3 Atk. (m. i Mendct v. Mmdei, 1 Ves. S. 91. 8 Ward, r. St. Paul, 8 Bro. C. C. 683 : Peekhamv. Peekham, 2 Bro. C. C. 683, n.: 2 Cox, 40 ; Chat- teris T. Young, 1 J. Jc W. 106 ; Maopherton, 87 ; Chait%ber$, 88. 4 Duke of Beaufort v. Berty, 1 P. Wins. 703, 704. :• Talbot V. Karl of Shrewibury, 4 M. & C. 672 ; mtty v. Marshall, 1 Y. k (^. C. C. «8, 71 ; Gardner V. Blane, 1 Haro 381, and oases cited ib. 382, n. (a) ', Jone» v. PotoeU, 9 Beav. 346. Roach V. Oarvan, 1 Ves S. 160 ; Smith v. Bate, 2 Dick . 631 . and me Ingham v. Biekerdike, 6 MmI. 276. 7 Boaeh v. Oarvin, 1 Ves. 8. 190. 8 Anonymout, 6 Oraut. 082. i Per Lnrd Rniiesdale, in O'Keefe v. Ca»ey, 1 Sob. & Lef. 106 : and nee he MoCuttoeh$, Dru. 2t9. 10 Lady TrynlMiii v. Lenivard, 4 Bro. P. C. Ed. Toml. 302, cited in Eyre v. Countett of Shafttbury, 2 P. W. 120 ; Ex parte Karl qf llehe»ter, 7 Vlj. 348, 368 ; Rf MeCuUochs, ubi (up. 11 Beatie v. fohnstone, 1 Phil. 17, 30 : 5 Jur. 671 : S. C. nom. Johnttone v. Beatie, 10 CI. & F. 42. INFANTS — APPOINTMENT AND REMOVAL OF GUARDIANS. 1391 'fl;;' t ;, n.: 2 Cox, 4»; Chat- amount of their fortunes and incomes ; and what relations they have. What " relations " are to be included in the inquiry is a matter of discretion in each case : as- a general rule, it should at least be shown what persons there are of or within the same degree of relationship as the proposed guardian ; and if the mother is pro- posed as a guardian, the evidence should extend to uncles and aunts on the father's and mother's sides. The petition should be served upon such relations : unless their acquiescence in the appointment of the proposed guardian u otherwise proved, or service on them is dispensed with. Evidence is also required of the fitness of the pro- posed guardian ; and his willingness to act should be proved by the production of his written consent. The usual evidence of fitness has sometimes been dispensed with thus, where a reputed father had appointed, by will, a guardian to an illegitimate child, and no objec- tion was made, the Court acted upon such nomination without fur- ther evidence, and thereby carried into efiect that which the father intended, but could not strictly, by law, accomplish.^ So, also, the Court at once appointed a guardian upon the nomination of the infant, who was fourteen : he appearing himself in Court for the pur- pose.^ J'! 1 ■Ay^ •>i» '.^'^ v. JohnHnne, 1 Phil 17. 30 : 5 Jur. «71. -- ^ . 2 Ex imrte Eduardn, 3 Atk. 6W. • i Re QortMll, 1 Beav. .'347 ; JmI'-« v. PmmU, 9 Beav. S4S ; and aee A iSh»i. , 8 Shn. 34«. ,. 7 '■..,■.) * BratUhaiBv. Bradthawr Rxum. 628. ft-nlr" ■"> Uall V. JontB, i Sim. 41. •',( H 1< -i 15 1392 PBOCEEDINGS IN THE MASTERS OFFICE. Av of the estate, as well as of the person, may be appointed on petition ; but where such suit is pending, a guardian of the person only will be appointed,* Formerly, it was considered that the Court had no juris- diction to appoint a receiver of an infant's property, unless a bill was filed ;^ but this rule has been frequently i*elaxed in modem practice, and guardians and receivers have been apj)ointed on peti- tion, without suit.^ The more usual course, however, is to appoint a guardian of the person and estate, without a recci r ^r.'' The application must be suppoi-ted by evidence, showing the nature, rental, or income, and other material particulars of the estate, and also the fitness of the proposed guardian, and li consent to act. It is ui ual to appoint the same person to be guardian of the estate, as of the person of the infant; but this rvi^* i"^ sometimefi departed from. ^ .» .,. -,.., ., . ;^. ^^.v rr, ;, ri^ a,^ The person appointed guardian of the estate must, ordinarily, give security duly to account, in the same manner as a receiver. The amount of the security is regulated, as in the case of a receiver, by the sum which the guardian is likely to receive during the currency of his periodical account. Where, however, the property is small, the Court has sometimes been satisfied with the under- taking of the guardian to account ;^ and where the estate consists exclusively of realty or leaseholds, the whole of the rents of whicli are allowed to the same guardian for the infant's maintenance, a recognizance is not generally required. The appointment is com- pleted, and the guardian's accounts passed, in the same manner as in the case of a receiver. ^ , ... An application to remove a guardian of the person or estate, or to supply a vacancy occasioned by death, or by the marriage of a female guardian, should be made by motion, supported by evidence of the facts which render the application necessary, »nd of the fit- ness of the proposed guardian, and his consent to act. » 1 See 2 L. C. Eq. 57'i ; Macniiergon, 105. ■~ , \tk. - - f oasen th 5 SeoSnn,700. E. r.\ INFANTS — APPOINTMENT AND REMOVAL Oi? GUARDIANa 1393 ited on petition ; 3on only will be urthadno juris- ty, unless a bill ixed in modem |)ointed on peti- er, is to appoint vor.* 56, showing the liiiculars of the , and Ir ' consent pfuardian of the \ie if sometimes ' - ■ . mu5t, ordinarily, r as a receiver, lase of a receiver, leive during the er, the property with the under- e estate consists rents of which maintenance, a intment is coiu- sanie manner as )ii or estate, or to marriage of a ted by evidenc(> yr, »nd of the tit- ct. When the persons of infants are, by due and pioper course of I law, brought before the Court, it will take especial care . that they remain within its jurisdiction, and obey ite directions therein; and fldll not in general, whether they be actually wards or not, permit them to be taken, or go out of it.^ Under special circumstances, however, the Court has permitted infants to go out of the jurisdic- tion, for the purpose of temporary, or even of permanent residence there, or, when already abroad, to remain there, under restrictions whereby their property and their education, and marriage still remained within its control ; but this must be on the ground of undoubted advantage to the infants, and on the responsibility of the guardian for the proper care of their persons ; and the Court must be satisfied, if possible, that they will at the proper period be brought again within its power.2 For this purpose, Ireland,** and [Scotland,* are looked upon as foreign countries.^ An appHcation for leave to remove an infant out of the jurisdic- tion may be made by motion supported by affidavit of the grounds OQ which such removal is deemed proper.** The person taking the ward out of the jurisdiction usually signs an undertaking, indorsed on the notice of motion,^ to bring him back by the time prescribed I by the Court ; but this rule is occasionally relaxed in practice ; and I the undertaking of counsel has been sometimes considered sufficient.® In LetheTii \. Hall,^ a recognizance was entered into Iby the guardians, to bring the infant within the jurisdiction when- I ever required, on his being placed at the Ui iversity of Dublin. Maintenance and AdvaTuement — Where there is i fund in [Court, or under the control of the Court, belonging to an infant, or Ithe income whereof is applicable to his maintenan;..e, an application Imay be made, by moti(jn, for an allowance thereout for such main- Iteuance. 1 Chambers, 26 ; and seo Macphcrtson, 120-132 ; 2 L. C. Eq. 538 ; Seton, 71i)-721. 3 Ckamhem, 28 ; Macphergon, 129 ; Stepheim v James, 1 M. & K. 627 ; Wyndham v. Lord EnnU- morr, 1 K«>en, 4«7 ; Campbell v. Mackai/, 2 M. &C. 31-33; Talbot v. Earl Shrewsbury, 4 M. & C. 672 ; and see iU BfiUley, cited Seton 720 ; and also Jac. 265. i Jjtthem V. Hall, 7 Wm 141. * Mrnmtiitua^ v. Mountstuart, 6 Ves. 3ti3 ; 1 Hov. Kup. to Ves. J. 603. 5 Chainbery, 28. ti For form i of ordci-s, aoe Seton, 71i)-720 ; 4 M. '5 0. 677 ; MaopherHon. App. 18. V Or writUn in the Reinstrar's book, where the application Ih m?''j In open Court : .sec Seton, 719, No. 1, s Maepherson, 182. 9 7 Sim. 141. 64 11 ii I ti 1394 PROCEEDINGS IN THE MASTERS OFFICE. i ' ' For the purpose of providing for the maintenance of infani during minority, out of property held in trust for them, it is custo mary to insert in settlements, express powers, authorising the lega holders of the funds to apply either the whole or some portion ( the income or capital for the maintenance and advancement of th infants, according to such conditions as may be considered con venient. In the absence of any such powers, the income of a infant's estate may be applied towards his maintenance ; and sue payments (if clearly necessaiy,) would be allowed the trustee ( guardian in passing his accounts.^ .i . . , -. • . / ^.i^ The practice of ordering maintenance, without suit, is more recei than that of so ordering the appointment of a guardian. Accordir to Lord Hardwicke, Sir Joseph Jekyll was the first judge who wei so far in this summary way as to direct an allowance for maintei ance : before his time, the Court would do no more than appoint guardian in socage, till the infant had attained his age of fourteen The practice, however, though completely established, was co sidered to be confined to cases where the income of the infant wj small : in other cases, it was deemed necessary that a bill should i filed.' The more recent cases show that this rule no longer exist and that the distinction, which formerly subsisted, between tl cases where the income of the infant was derived from real estat and where it was derived from personal estate, has been abolished Where, however, the infant's right to maintenance is doubtful bill should be filed.^ As a general rule, the Court will not, during the lifetime of t father, order maintenance for his children out of their property : it is his duty to support them.*^ When, however, the father is n of sufficient ability to educate them according to their estate, i allowance for their maintenance will be authorised -^ and for tl 1 See Prince v. Hine, 26 Beav. 634. ' ^ 2 Ex parte Ricards, 3 Atk. 519, 3 See JSx parte Mount fvrt, IS Yes. 445 448 ; Ex parte Lakin, 4 Rum. 307 ; Re Molesteorth, 4 Bi 308. 4 Ex parte Starkie, 3 Sim. 389 ; Re ChrUtis, 6 Sim 43 ; Sx parte Angell, 18 Sim. 268. i r> Fairmnn v. Green, 10 Ves. 45-47 ; Corbet v. Tottenham, 1 B. & B. 60. (i Jaakson v. Jackson, 1 Atlt. 516 ; Fawkner\. WattH, ib. 408 ; Butler v. Butler, 8 Atk. 60 ; Dm V. Darley, ib. 398; Andreion v. Partington, 2 Cox, 223; Tliampson v. Griffin, 0. & P. i Kekcwich v. Langnton, 11 Sim. 291, 303, 305. 7 Pendall v. Nash, 5 Ves. 197, ii. (a) ; Cavendish v. Mercer, ib. 196, n. (a) ; Errat v. Barlov Yes. 202 ; Jervoise v. Silk, U. Coop. 52 ; Ex parte Williams, 2 Col. 740 ; Lwsknme v. Brtiwn Jur. 1017, v. C. W. OFFICE. INFANTS — MAINTENANCE AND ADVANCEMENT. 1395 ntenance of infants for them, it is custo- fcuthorising the legal J or some portion of advancement of the be considered con- 8, the income of an untenance ; and such lowed the trustee or -'.■)" W'V 3ut suit, is more recent guardian. According i first judge who went lowance for mainten- more than appoint a i his age of fourteen. - established, was con- )me of the infant was y that a bill should be ; rule no longer exists ; subsisted, between the Lved from real estate, J, has been abolished.* ;euance is doubtful a ig the lifetime of the of their property : as -ever, the father is not ng to their estate, an horised ;^ and for this J \ uMi. 307 ; Be Molegviorth, 4 Russ. Angell, 18 Sim. 258. B. 60. tUr V. Butler, S Atk. «0 ; Darlj Jiompnon V. Griffin, 0. & P. SL 195, n.(a); Krrat v. Barlow, j 2 Col. 740 ; Luetnww v. Brmmi, 1 purpose, it is not necessary that the father should be absolutely without the means of supporting his children : an order for main- tenance may be made, if his circumstances are such as to prevent him from educating them in a manner suitable to the fortune they have a right to expect.^ The rule that, if a father is of sufficient ability, he must educate and maintain his children out of his own fortune, applies, even though the gift of the property to them con- tains provisions authorising their maintenance thereout : unless it is expressly given to their father for that purpase.^ This ground of exception is thus stated by Lor J Thurlow, in Andrews v. Parting- ton ^ " If the will had given the dividends to the father for the maintenance of the children, it would have amounted to a legacy of the dividends to the father : which he would have been entitled to, though he had not spent half of it in the children's maintenance." This distinction was also acted upon by Sir Lancelot Shadwell, V.C., in Hawkins v, Watts,^ where a testator gave a share of his personal estate to hi.s son in-law, in trust to apply the same for the mainten- ance of his children by the testator's daughter ; and it was held that the son-in-law was entitled to apply the interest of the share for his children's maintenance, notwithstanding he might be of ability to maintain them. .*»''.-' •'" ■'.■■■ Another exception to the general rule, rendering it incumbent upon a father to maintain his children, exclusively out of his own property, occura where the father has contracted that certain property should be applied to that purpose f but before he can be entitled to this benefit, he must show that such was his contract.^' In general, the Court will not direct a. sum to be paid for main- tenance out of the capital of the infant's property. If, however, the infant has no other means of subsistence, or it can be shown to be necessary for his advancement in life, the capital may be broken into.' • 1 Buehworth v. Bttckworth 1 Cox, 80. 2 Huah»8 V. HtigheH, 1 Bro. C. C. 887 : Aiidreua v. Partington, 3 Uro. 0. C. <» ; Mundy t. Earl Uoiee, 4 Bn). C. C. 224 ; White v. (irane 18 Beav. 571. 3 2 Cox, 223, tin : 8 Bro. 0. C. 60 ; but see llonte v. Pratt, 3 Ves. 730. 4 7 Sim. 199. 5 Stoeken v. Stocken, 4 M. k C. 95, 98; and see H. C. 4 Sim. 152 : 2 M. & K. 489 ; Mundy v. Earl Hotee.iBro. Bro. C. C. 224 ; Mear.her v. Youn-i, 2 M. & K. 490 : Birch v. Sumner, 8 Jur. N S. 712 V. C. W. 6 The npHon v. Griffin, C. fi P. 317, 3n. 7 Ex parte Green, 1 J. .t W. 2.53 ; Ex parte Swift, 1 K. & M. 576 ; Ex parte Chatnbers, ih 677 ; Clay V. Penningt.(m, 8 Sim. 359 ; FeiUiinan v. Fentiman, 13 .-im. 171 ; Hridffe \. Browi. 2 Y. .'I: O. C. C. 181 : Ex partf Hayn, 3 De IS. & S. 486 ; Re Lan", 17 Jur. 210, M. R. . WaMi v. Walxh, 1 DreV. 64 ; and see WorthiiMtuii. v. McCraer, 23 Beav. 81 ; Prince v, Hine, 26 Beav. 634 ; Seton, 704 ; Macphcrton, 252-6 ; Chamberit, 364. ( j 1 h\ 1896 PROCEEDINGS IN THE MASTER'S OFFICE. Although, as a general inile, the Court will not break in upon principal money for the maintenance and education of infant legatees, still in a proper case the Court will so apply it as well as to the advancement of the infant.^ A stpp-father's claim to be paid for past maintenance of a minor out of her capital, was rejected on the ground of his misconduct. A step-father is under no obligation to support the child of his wife by her former husband.^ The Master has no authority to make an allowanae for the maintenance of an infant not dii ted by the decree, however reasonable it may appear to him to be. His proper course is to report the circumstances specially, and the party claiming to be entitled can apply to the Court on further directions.^ Where a legacy bequeathed to an in- fant had been paid into Court the interest thereon was ordered to be paid out as it accrued, for the education and maintenance of the in- fant on its being shewn that the money was required for these pur- poses.* In a proper case trustees may be allowed payments made by them for the maintenance and education of children, out of their capital. Under a general administration decree the Master may, without any special directions, take evidence as to paymentb by executors for the maintenance and education of infanta out of their shares of capital, and report the facts.^ It is for the discretion of the Court, in view of all the circumstances whether to allow for past maintenance out of the corpus of an infant's estate not intended by a testator to be so applied. A farmer by his will gave to his widov his goods and chattels absolutely ; also an annuity, and the use of his homestead and other real estate during her widowhood. She married again and claimed to be paid for the past maintenance of the testator's children from the time of his death out of the corpus of the estate devised to them at twenty-one, and otherwise. The Court on further directions refusi ' to allow the claim.*' [Where i tescator bequeathed part of his rt iry estate to two infant lega tees, directing the interest to be a^ led to their support and educa- tion antil *wenty-one years of age, or such previous time as the trustees might see fit to pay over the same to th legatees ; and that in tht case of the death of either, the wliole should be paid to the survivor ; the will containing no gift over 1 Anhbaugh v. Ashhaugh, 10 Grant, 430. 2 Fielder v. O'Hara, 16 Grunt, 010. 4 Griffin v. McOill, 2 Cham Rep. 318 EdwardK v. Durgen, 19 Grant, 101. . w.> •' I 3 Fielder v. O'Hara, 2 Cham. Rep. 2r.C 5 Stexvart v. Fletcher, \% Grant, 235. E. INFANTS — MAINTENANCE AND ADVANCEMENT. 1397 , break in upon f infant legatees, s well as to the to be paid for rejected on the no obligation to i.2 The Master lintenance of an )le it may appear re circumstances jan apply to the ueathed to an in- jras ordered to he enance of the in- •ed for these pur- ayments made by iren, out of their the Master may, to payments by fants out of their the discretion of r to allow for past not intended by gave to his widow ty, and the use of Aridowhood. She ,st maintenance of out of the corpus I otherwise. The claim.« [Where a ,0 two infant lega- upport and educa- previous time the same to the either, the wliole ig no gift over Id a, 2 Oiaiii. Rep. 2r)f) •her,\6 Orant, 235 case of the death of both ; the Couii held that the trustees ami executors had a direction to a))ply part of the jtrincipal to the sup- port and education of the legatees. In such a case the executors and trustees presented a petition under the -statute 29 Victoria, ch. 28, sec. 31, and it appearing that the parents of the legatees had aban- doned them ; that the legatees had no other means of support ; and that the interest on their share of the residuary estate was inad- equate for their support. The Court made an order approving of the application of part of the principal to supply the deficiency.^ [In proceeding under 12 Victoria, ch. 72, the mother of the infants was appointed guardian, and the sale of the greater part of the real estate of the infants was ordered, which was accordingly effected, but no investment of the surplus was made, although that course was directed by the order ; the whole of such proceeds to- gether with $5,321 in addition were expended in the support and education of the infants. The guardian thereupon applied for an order to sell the remainder of the real estate. The Court refused the application ; notwithstanding that the Master leported the amount claimed was a proper sum to be allowed^ [Maintenance under the statute — Consolidated Statute, Upper Canada, ch. 74i, sec. 8 — can only be ordered where the infant is under twelve years old, and is transferred by the Court to the mother's custody.^ A testa- tator bequeathed a legacy to an infant daughter, payable on her at- taining twenty-one, and charged the same on \,he shares of two of the devisees ; but the will was silent as to interest upon the legacy : Held, that the infant was entitled to maintenance out of the estate of the testator, during her minority, to the extent, if necessary, of the interest on the legacy ; and an inquiry as to the ability of the widow of the testator to maintain the infant was refused.* By a deed of trust certain lands were conveyed to trustees for the benefit of an infant, to whom the trustees were to convey in fee on her at- taining twenty-one : Held, that the infant took a vested interest ; and the Court directed an inquiry as to her past and future main- tenance.^ It is clear that it is the duty of the mother remaining 1 Re McDougall, U Grant, 609. ' » • , 2 Re Hunter, 14 Gtrwit, 680 ; and see Wahnesly v. Bull, 15 Grant, 210. " " ■•'■( ' 3 Re Eves, 15 Grant, 580. 4 Binkley v. Binkley, 15 Grant, 649. 5 Steioart v. Olasgow, 15 Grant, 663 ; and see Denuon v. Denwon, 17 Grant, 219, affirmed on appeal, 18 Grant, 41. v . v . r 1398 PROCEEDINGS IN THE MASTER S OFFICE. unmarried after the death of her husband to maintain her child- ren III', .'t.ftf'il ••I'.friM ii.ii 'iImsm; rtii" > "ni iv-.»vv ;,fi .iiri-iiH'-icV, '»'.;, Bufthere is no rule requiring the mother to maintain her children; and therefore, it has been held that if the father is not of sufficient ability,^ or is dead,^ maintenance will be allowed without refer- ence to ner aDiii'ty. i'Mnjiit; ju.m^ tuiii n i»-,iii •■•t\ji,: rtu' t^i j;7j.' An application at Chambers for the allowance of maintenance is made by an ordinary notice of motion, in cases where a suit or matter is pending ; in other cases it it made by petition in the form used for originating proceedings at Chambers. The notice of motion must be served on the trustees, or other persons interested in the fund out of which the maintenance is to be paid ; and must be supported by evidence, showing that the income or corpus of the fund is applicable to the purpose. A scheme, show- ing the heads of the intended expenditure, should also be put in evidence. • .J t .' i i3-l i , >. H'l. If an increase of the allowance is afterwards required, the appli- cation for it is made by an ordinary motion supported by an affidavit showing the necessity for the increase. The notice should be served on the trustees or other persons above mentioned. Where, on the hearing of the cause, directions are given as to the appointment of guardians, or- an allowance for maintenance an inquiiy wh; 1; is proper to be allowed for the maintenance of the infant, and oa\, of what fund the allowance ought to be made, will be directed.* The guardian will usually be allowed any costs he may have incurred, as between solicitor and client ; but any sums which he has expended, and which would not be allowed under that head, should be mentioned at the hearing of application : in which case, if necessary, a special direction will be given in the order concerning them.^ h. . A 1 Per Spragge. C, Binkley v. Binkley, 15 Grant, 650. 3 Haley v. Bannitter, 4 Had 276, 280 ; Cavendish v Mercer, 6 Yes. 195, n. (a). But see Per Spragge, C, Binkley v. Binkley, 15 Grant, 660. 3 Dougku v. AndrexBt, 12 Beav. 810; and see Lanoy v. DrUce o/Athol, 2 Atk. 447; Ex parte Lord Petre, 7 Ves. 403 ; Macphergon, 224 ; Chaiiibers, 114. 4 See forms of ordes in Seton, 700, 701. 5 In jgeneral, past maintenan e will not be ordered, unless a strong case for it is made : see Hill v. Chapittan, 2 Bro. C. 0. 231 ; Sherwood v. Smith, 6 Ves. 464 ; Ex parte BmuL, 2 M. & K. 439 ; Clay V. Pennington, f Sim. 859 ; Stopford v. Lord Canterbury, 11 Sim. 82; 4 Jur . 842 ; Bruin v. Knott, 1 Phil. 672 ; 9 Jur. 979 ; 12 Sim. 456 ; 6 Jur. 886 ; Lygmi v. Lord CoveiUry, 14 Simi 41 , Stephens v. Lawry, 2 Y. A; C. C. C. 87-70 ; Re Lane, 17 Jur. 219, M. R. INFANTS — MAINTENANCE AND ADVANCEMENT. 1390 tain her child- ly.. ;..'....,.' .1.! in her children; lot of sufficient without reler- Mi' ''ff} hvp.' ■ of maintenance wrhere a suit or ' petition in the rs. The notice other persons •e is to be paid ; b the income or . scheme, show- l also be put in uired, the appli- upported by an e. The notice DOve mentioned. are given as to or maintenance intenance of the to be made, will is he may have sums which he inder that head, in which case, order concerning \ ... ■ ,, n. (a). But see Per \tk. 447 ; Bx parte Lord it is made: see Hill v. /U Bcmd, 2 M. & K. 439 ; 82; 4Jur. 842; Bruin v. ■d Coventry, 14 Sim. 41 ; It may be here mentioned, that where the infant and her father were resident abroad, the Court made an order, that upon the father appointing an attorney to receive the maintenance, the dividends of a fund in Court should be paid to the attorney half- yearly, upon the production to the Accountant-General of an affidavit by the father that he had duly applied, in the maintenance and education of the infant, all monies received by him on that account to the time of making the affidavit ;^ and where the infant resided in the United States with her guardian, appointed by a foreign Court, the dividends of a fund of iJ531 in Court here, were ordered to be paid to her solicitor ; he undertaking to remit them to the guardian.^ iiiAVil'>'.iiXii ,i; v.ii-.-J : Where a person of weak or unsound mind, who has not been so found by inquisition or other proceedings in lunacy, has property under the jurisdiction of this Court, the Court may, without the aid of the jurisdiction in lunacy, appoint a person to act as guardian of the person, or person and estate, of the lunatic : and may order the income of his property to be applied for his maintenance f or may even direct the corpus of such property to be applied in repaying past advances for maintenance.* The application, in such case, is made by petition, supported by similar evidence to that required in the case of infants ; and by affidavits showing the state of mind of the lunatic, that he is unable to manage his aflairs, and that he has not been found lunatic by proceedings in lunacy.^ ' > l.'l>.r i.^ '.\ (T r* ' Tf . I ■ ,-T1 1' i;-!.-.' As long as guardians of the person, or other persons having an allowance for maintenance, duly maintain the person intrusted to their care, they are not accountable for their expenditure.* !'!' In settlements it is customary to insert express powers authorising the application of the whole or some portion of the 1 Re Weever v. Rockport, 6 Beav. 391, and cases *. 392, n. (b) ; and see Seton, 719, 720. 2 Re MorrUon, 16 Shn. 42 : 11 Jur. 984 ; and see Vnlans \ . Carr, 2 De G. & 8. 242, where the infant had been found of unsound mind by a foreigrn Court. 3 Wilkinion v. Letch, 2 C. P. Coop. t. Cott, 195 ; Volam v. Carr, ubi mp.; Re Berry, 13 Beav. 4.56 ; Re Burke, 2Do 0. F. & J. 124 ; 6 Jur. N. S. 717 : Re Tayler, 2 De G. P. & J. 125; Re Ward, 6 Jur. N. 8. 717, L. JJ. ; Re Mae/drlane. 2 J. & H. 673 ; 8 Jur. N. 3.208; Re Bignell, cited Seton, 710 ; and see Re SpUUr, 6 Jur. N. S 386, 1. J J. In Re Sturge, 5 Jnr. N. S. 423 : 7 W. R. 395, M. R. , an annual statement was directed to be made to Chambers of the lunatic's stat« of mind and property. „..„. 4 Re Law, 7 Jur. N. S. 410, V. C W.; iJ« Macfarlane, 2 J. & H. 673: 8 Jur. N. S 208 , WMvims v. Allen, 38 Beav. 241 ; and see Peter g\.0 rote, 7 Sim. 238 ; 2 C. P. Coop. t. Cott. 192. 5 For forms of orders, see Seton, 709 710. 6 Jodrell v. Jodell, 14 Beav. 397 ; and see Leach v. Leach, 13 Sim. 304 ; Carr v. Living, 28 Beav. 644^7. 1400 PROCEEDINOS IN THE MASTKR's OFFfCE i>1 It income or capital of each child's expectant or apimrent share for the advancement of hucIi child ; and in the absence of express power, a like application for the infant's share may be made by the trustee without the sanction of the Coui*t, where the same, if ex- pended for maintenance, would not have been allowed him.* ^^'*'" Where the fund out of which the advancement 4» to be made is in Court, or the infant is a ward of Court, or the administration of his estate, or his maintenance, is under the direction of the Court, an allowance for the jiurpose of purchasing him a commission in the army, or binding him apprentice, or otherwise for his advancement, may be ai)plied for by petition, supported by affidavit or other evidence showing tin; amount required to be advanced, the wishes of the infant, and his fitness for the profession, trade, or business selected.^ Wliere it is proposed to article or apprentice the infant, the respectibility of the intended master, and the propriety of the premium, are also usually required to be shown by affidavit. The articles or indentures of ap})ronticeship are usually settled at Cham- bers, or before the Master in the ordinary way ; and where the amount advanced is to be paid out of a fund in Court, it is usually necessary that the execution of the articles should be certified by the master,^ Provision is sometimes made by the articles for the return by the master of a portion of the premium, in the event of cither the master or the infant dying during the term. ■■h'.( .j'rtif; J.'ii. Mmiayemeut of Fruperty. — The Court exercises a vigilant care over guardians of the estate in regard to the management and disposal of the property of infants ; and will carry its aid and protection in favour of infants so far as to reach other persons than those who are guardiania strictly appointed ; for, if a man intrudes on the estate of an infant, and takes the profits thereof, he will be treated as a guardian, and held responsible for the same to the infant in a Court of Equity.* 1 Letein, 386. As to advancement for infants, see Chambers, !i80-8, 821; Maepherson, 258, 266, 386-7 XXXI. ; Setvn, 704. 2 For form of order to purchase a commission in the army, see Seton, 708, No. ». 3 For form of order, see Seton, 709. Where the amount is siuMl, the drawint^ up of the order is sometimes deferred till after the articles have been executed, as, by so doing, the expense of a certificate of approval and of execution may be saved ; see W'enn v. Wenn, M. R. in Chambers, 80 June, 1866, Heg. Lib., B. 1774. 4 Story Eq. Jur. sec. 1356 ; JXewburgh v. Biekentaffe, 1 Vern. 296 ; Cary v. Bertie, 2 Vem. 322 Bennet v. Whitehead, 2 P. Wms. 645 ; Morgan v. Morgan, 1 Atlc. 489 ; Wett, 265; Dormer v. FroUaew, 3 Atk 130 ; Pvitemy v Warren, 6 Ves. 89: 1 C. P. Coop. t. Cott.480; Wyllie v. EUiee, 6 Hare, 505; Blmnfield v. Eyre, 8 Beav. 260: 9 Jur. 717: Nanney v. ITiKtoww, 22 Beav. 643, 460 ; Seton, 687. As to the management uf the estatbs of infants by the Court, see Chamhen 608< 00 : Ma'^hers''<'! l"'^-^■ '*"''■"'' ^- •»''?.V;t^ '■il.f' tilUf. \'.i. h'j Although, however, the testamentary guardian possesses these legal rights over the estate of the infant, he is, in all respects, subject to the control of the Court, and liable to account for what 1 3 Sim. 339. On referring to the original petition in this case, and »ne order entered, Reg. Lib., 1829, B. 990, it appears that vhe infant's estate wits vested in trustees, who had no power to ad- vance maintenance. It may, therefore, be supposed that the observation of the Vice-Chancellor referred only to a case where trustees in the possession of the estate make payments to a guardian of the iierson. It is obvious that in such a case the trustees would only be discharged to the ex- tent of the allowanoe made for maintenance ; but it does not follow that a guardian of the estate, where there is no trustee, cannot ^ve a receipt for the full amount of the Infant's fortune. 2 IS Oar. II. cb. 84. 8 Roe eJe/rt. Parry v. nod>^ -^ V^*' "» '/ z!^ Fhotographic Sciences Corporation 23 WIST MAIN STREiT WIBSTH.N.Y. MSM ( 71* ) •72-4503 ^.>. ^^^X"^ ^^.V^ '^ 1402 PROCEEDINGS IN THE MASTER'S OFFICE. he receives. His rights and liabilities seem to be nearly the sume as those of the guardian in socage, except that they contmuo until the infant is twenty-one, instead of terminating, as in the case of the guardian in socage, at fourteen. According to Lord Hardwicke, "It is at the peril of a guardian in socage what he applies for maintenance ; and he will be allowed according to the discretion he has used."* From what has been stated, concerning the power of a guardian appointed by the Court over the estate, it may be inferred, that he has no power incident to his office of making a lease valid at law of any portion of the infant's estate ; nor is there any authority as to thtj circumstances under which a lease made by such a guardian, daring the minority, would be supported in equity. Consequently, V/hen a suit is instituted, it is usual for a receiver to be appointed, in which case, the estate is managed according to the practice hereafter stated. The Court, however, can not, under its original jurisdiction, in such a case, enable a receiver to create any legal term in the land ; nor can it in any manner insure the occupation of the tenant, beyond the period of the infant's minority. <^>,f>, <<(.i Guardians will not ordinarily be permitted to convert the personal estate of infants into real estate ; since it may not only affect the rights of the infant himself, but also his representatives, if he should die under age. Guardians may, however, under special circumstances, where it is manifestly for the benefit of the infant, change the nature of the estate; and the Court will support their conduct, if the act be such as the Court itself would have done, under the Uke circumstances, by its own order.* The act of the guardian in such case must not be wantunl}*^ done ; but it must be for the manifest interest and convenience of the infant ; and hence it is coumion for guardians to ask the positive sanction , of the Court to any acts of this sort. Where the Court orders any such change of property, it directs the new investment to be in trust for the benefit of those who would be entitled to it, if it had remained in its original state.' This object may be attained by 1 Ex parte Whit/Uld, 8 Atk. 316. 2 Story Eq. Jur. aeo. 1S67 ; Inwood v. Twyne, Anib. 410. An to' the oonvenion of m infut's pro- perty, Hee Uaopheraon, 27S-806: Chatnher$, 68fr-&70; Seton, im-i. 3 Lord AMttrlon v. Lady Athburton. 6 Yob. 6 ; and wo Tullit v. TuUH, Amb. S70 ; Snvemm v. Sealey, 2 Atk. 413 i SxparU PhUhpi, 19 Yes. 128; WOb r.'Lord Shaftdmrif, Mad. 100. INFANTS — MAINTfc> iixCE AND ADVANCEMENT. 1403 Infant'i pro- conveying the land to a trustee, in trust for tho infant, his executors and administrators, until he attains twenty-one, and aftei-wards for him and his heirs ;^ or, by a conveyance to the use of the infant, his heirs or assigns, but if he dies under tyvrenty-one, then to the use of trustees, upon trust to sell, and hold the purchase -money upon the trusts on which such money, and the income thereof, would have been held if the money had remained part of the infant's personal estate.^ The practice as to investments in land, with the approval of the Court has been already stated. ' •• '*• »• •• '^' ^ In cases where, if money belonged to an infant residing in Upper Canada, the Court would invest it for the benefit of the infant the Court will, where the infant is resident in a foreign country, direct the moneys to be invested for his benefit in the securities of such foreign countiy.' The rule is that moneys belonging to infants are not ordered in equity to be paid to their guardian, whether appointed by the Surrogate Court or otherwise, but are secured for the benefit of the infants under the authority of the Court ; but the rule may not apply where the amount is small, and is required for the maintenance, education, or other immediate use of the infants, or where some other special circumstances exist justifying an excep- tion to the general rule.* In consequence of the danger to which the fortunes of infants are often exposed in private hands, the Court, on the administration of an estate, takes charge of the share going to infants, and invests the same for their benefit, instead of the amount being left in the hands of a trustee. Since the establish- ment of a Government Dominion Stock the investment of infants' money by the Court, should, as a general rule, be in such Stock, rather than, as formerly, in mortgages.* A petition had been pre- sented for the sale of an infant's esitate, fifty acres of land which produced $700 and upwards. On an application that the proceeds might be invested in the purchase of a farm, with the sanction of the Court, on which it seemed to be intended the father of the infant — a farm laborer — was to reside with the infant, the Referee refused to sanction the sale.* "4111^0! ^>;fj ,' ,1 ;-, 1 « v««. 7. 2 This wu the fonn adoptad in P^ftn t. Pym, M. R. in Chambers, June, 1886. 8 Sanborn v. Sanborn, 11 Onnt, 869. . i' . . , 4 Jfy petition,' of the infant, or of the guardian, or indeed of any other person, for an inquiry as to the validity of the marriage, and 1 2 L. C. Eq. 688; SinUh v. Smith, 3 Atk. !t06 ; Earl of Plymouth v. Leteis, 2 Dick. 801. As to the luarringe of wards of Court, and settlements thereon, see Maephtr»on, 191-209 ; Chainben, 809- 001. 2 S^ory Eq. Jur. sea 1860 ; Lord Raymond'g Cane, Ca. t. Talb. 58 ; Smith v. Smith, S Atk. 904, 906, 308 ; Bsard v. Travera, I Yes. S. 313 , Tombes v. EUrs, 1 Tick. 88 : Roaeh v. Qarvan, ib.; Lord SMpbroolc V. Lm-d Hinehinb^rook, 2 Dick. 647 ; Pearce v. CrtUchfleld, 14 Ves. 206. Formerly, where the Court committed the custody of an infant to any person, it required him to enter Into ' a recognisance, oonditioned that he should not permit the infant to marry without the consent of the Court : Davi«' Case, 1 P. Wms. 608 ; Eyre v. Cmtnte»» of ShafUbury, 2 P. Wms. 112; but this practice is not now adhered to : see forms of orders in Seton, 700, 701. 3 For forma of orders, see Seton, 727, 728, 782. 4 Beard v. Travers, 1 Ves. S. 313. 6 Setmi, 728, No. 3 As to substituted service, see Pearce v. CrutehJUld, 14 Vea. 909 ; Worthom t. I'emberton. 1 De G. ft S. 644, 648. 6 Eyre v. Coiintess of Shaft»bury, 2 P. Wms. Ill : 2 L. 0. Eq. 6S8 ; Herbert'* Case, S P. Wms. 116; HtU V. Ivnier, 1 Atk. 616 * More v. More, 2 Atk. 167 : 8. 0. nam. Moor v. Moor, B«maid, 404; Butler V. Freeman, Amb. 301 ; Bathttret v. Murray, 8 Yes. 74 ; NiehoUon ▼. iSn;i*tre, 16 Yes. 260 : Birkett v. Hibbert, 3 M. & K. 227 ; Re Walker, LI. k O. t. Stiff. 999 ; Hodgetu y. IMU/etu, 4 CI. & F. 328; Bateley v. Baseley, 4 CI. «: F. 378 ; Wcrtham v. Pemberton.l De O. ft & 044; Martin v. Foster, 7 De O. M. & 0. 08: 1 Jur. N. 8 887 : Oytm \. GUbard, 1 Dr. & B. S06: 7 Jur. N. S. 91. 7 TrevetM v. Juliff, M. R., 28 March, 1866, Reg. Lib. B. 618. INFANTS — MARRIAGE AND MARRIAGE SETTLEMENTS. 1405 the approval uf a proper settlement of the infant's fortune. The application must be supported by affidavit ; and the parties are usually ordered to attend personally in open Court, or in the Judge's private room, to answer the contempt.^ The Court also usually directs an inquiry to be made whether the maniage is valid ;^ and if it appears that it is, it will, in the case uf a female ward, direct a proper settlement ot' her fortune to be made with the approval of a Judge in Chambers.^ An application to commit a husband may be directed to stand over, pending the approval and execution of the settlement.* If it is found that the marriage of a female ward is invalid, a valid marriage may be ordered ;' and a like course has been pui-sued in the case of a male ward.* Upon the return of a warrant or appointment to proceed on the order, the inquiry as to the marriage is prosecuted ; the settlement approved ; and the result of the proceedings certified in the usual manner.'^ When the certi- ficate has become absolute, any consequential directions may be applied for by petition. - - -- . , - - _...,-.,,.. If the husband has been committed for the contempt, he may ar^)ly to the Court by petition,* for his discharge, which will be granted on the settlement being executed, and the costs paid.^ An application for leave for a ward of Court to marry is usually made by petition : which is ordinarily presented by the intended hudband whether he is the ward or not -^^ but is sometimes presented by a female ward, by her next friend or guardian ; and sometimes by both parties." The petition should state the age of the ward ; the nature of his or her fortune; the contemplated marriage; and the age, rank, position in life, and fortune of the pei*son to whom the infant is proposed to be married ; and should pray for an inquiry whether tnu contem- 1 For tomu of orders, see Seton, 720. An to substituted service, see Pearee v. Crutehfield, and Worthatn v. Pemberton, ubi sup. 2 In Trevena v. Juliff, ubi tup., where satisfactor}' evidence of the nuirriage was given on the hear- ing of the application, the inquiry was dispensed with. 3 Seton, 729. i TrevetM v. Juliff, M. R., ubimp. ; Seton, 7S1. 5 Bathunt v. Murray, Re Walker, and Hodgene v Uodgeni, ubi sup. 6 Be Murray, 8 Dr. & War 83. 7 The husband in these oases is, as a rule, excluded from all interest : Birkett v. Hibbert, 8 M. dc K. 997 ; Kent r. Burgee; 11 Sim. 361, 378 ; Wade v. Hopkinson, 10 Boav. 613 : and see Seton, 72«. 8 Nicholson v. S^ire, 16 Ves. 2S0. SUfKtu V. Savage, 1 Ves. J. 164. 10 Seton, 722, No. 1 ; 723. 11 See Setont 7M, No. 8. ' 1406 PROCEEDINGS IN THE MASTER'S OFFICE. plated marriage is a proper one for the ward ; that, if so, proposals for a settlement may be received ; that a proper settlement may be approved : and that upon the execution thereof, the parties may be at liberty to intermarry. The allegations in the petition must be supported by affidavit ; but it is usual, on the petition being opened in Court, to adjourn it wholly to Chambers, without any order thereon being then drawn up.^ , . In proceeding on the petition in Chambers, the propriety of the marriage is, in the first place, considered f and if that xs shown, the proposals for the settlement are brought in and discussed f and 'when these are settled, the matter is adjourned for a deed to be prepared to carry them into effect. The draft of such deed is then prepared by the lady's solicitor ;* 8 copy of the draft is left at Chambers, and and is there settled, wi^ the aid, if necessary, of the conveyancing counsel ; the fitness of the proposed trustees and their consent to act must be shown ; and an approval of the deed is signed in the usual manner. The Registrar, or Master, if there has been a refer- ence, then prepares and signs the minute of the order approving the marriage and settlement, and directing that, upon the execution thereof by the persons therein named,^ the parties be at liberty to intermarry. - ' ' ^'^ Where a fund in Court is to be paid out or transferred to the trustees of the settlement, or applied in the infant's outfit, or in payment of the costs, or otherwise, the same order may provide for such pa3nnent or transfer being made, after the due execution of the settlement, and the solemnization of the marriage ; or a sub- sequent order for such payment or transfer may be obtained, on the application of the trustees.* In order to remedy the great inconveniences and disadvantages which formerly arose in consequence of persons marrying during 1 .9«eon, 72S. 2 In Morgan v. fToteAtU, cited SeUm, 728, the Court uproved the nuurriage, subject to Its solmnia- tlon Being postponed till the intuit ward attained 17. 3 For forms of proposals tor a settlement, see 3 Datiditan Conv 762. 4 As to settlements of real and personal estate, see 3 Daoidaon, Conv. 1-538; 1 Prideavue Conv. 142- 157; 2 L. C. Eq. 504. For precedents of marriaife settlements in general, see 1 PrUUarm, 180- 264 ; 3 Davidmn, S3ft-11M : and with the sanction of the Court, 0*., 787, 747, 754, 1068; Peaehy, 700-810. A female ward should l>e empowerad to provide for her children by a future marria^ : Rudge v. Winnall, 11 Beav. 08 : and see Bathurtt v. Murray, 8 Ves. 74. 6 In addition to the husband and wife, the settlement should be executed iqr the trustees ; see Adfy V. Arnold, 2 De O. M. & O. 482 : Wtmeh v. Grant, 2 Drew. 312. 6 Seton, 72S. INFANTS — MARRIAGE AND MARRIAGE SETTLEMENTS. 1407 t to its Bolmnln- minority being incapable of making binding settlements of their pro- perty, it has been enacted, in England, that it shall be lawful for every male infant who has attained the age of twenty years, and every fe- male infant who has attained the age of seventeen years,^ upon or iu contemplation of his or her marriage, with the sanction of the Courti to make a valid and binding settlement, or contract for a settlement' of all or any part of his or her property, or property over which he or she has any power of appointment, whether real or personal, and whether in possession, revision, remainder, or expectancy ; and every conveyance, appointment, and assignment of such real or personal estate, or contract to make a conveyance, appointment, or assign- ment thereof, executed by such infant with the approbation of the Court, for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty -one years ; but the statute does not extend to powera of which it has been expressly declared that they shall not be executed by an infant f and in case any a])pointment, unc^er a power of appointment, or any disentailing assurance, has been ex3cuted by any infant tenant in tail under the provisions of the Act., and such infant afterwards dies under age, such appointment or disentailing^assurance will thereupon become absolutely void.' The sanction of the Court to any such settlement, or contract for a settlement, may be given upon petition presented by the infant, or his or her guardian, in a summary way, without the institu- tion of a suit ; and if there is no guardian, the Court may require a guardian to be appointed or not, as it thinks fit ; and the Court also may, if it thinks fit, require that any person interested, or appearing to be interested, in the property, shall be served with notice of the petition.* . The powers conferred by this Statute in the English Court have been given to our Court by the Prov. Stat. 28 Vic, ch. 17. The petition i^ entituled in the matter of the infant, and of the Act ; the allegations are similar to those usually inserted in peti- tions in the case of marriages of wards of Court ; and the petition MteoH : Me AiUy 1 18 4 19 Via oh. iS, mo. 4. S 18 & 19 Vic. cli. 48, sec 1. 4 18 & 19 Vic oti.43, MC. 8. ' J «'»■>< 5 ' 3 18 & 19 Vic. oh. 43, sec 2. ). 'If! >,;)*! W t (WT 1408 PROCEEDINGS IN '^HE MASTER'S OFFICE. II' prays that a proper settlement may be sanctioned, and that, upon the execution thereof, the parties may be at liberty to intermarry. On the petition being opened in Court, it is usually adjourned at once into Chambers; and an appointment to proceed thereon is taken out, in the usual manner. At the return of the appoint- ment, or at an adjournment thereof, evidence must be produced to show : (1) The age of the infant ; (2) Whether the infant has any pai'ents or guardians ; (3) With whom or under whose care, the infimt is living, and, if the infant has no parents or guardians, what near relations the infiajit has ; (4) The rank and position in life of the infant and parents ; (5) What the infant's property and fortune consist of; (6) The age, rank, and position in life of the person to whom the infant is about to be married ; (7) What property, for- tune, and income such person has ; (8) The fitness of the proposed trustees, and their consent to act ; and the proposals for the settle- ment of the property of the infant, and of the person to whom the infant is proposed to be married, must also be submitted to the Judge. On an application imder the Act, whero the infant is Aot its ward, the Court is not bound to inquire into the propriety of the proposed marriage, but only into the propriety of the proposed settlement : although what would be a proper settlement in any particular case, must sometimes lead to an inquiry into all the cir- cumstances of the proposed marriage.^ When the proposals for the settlement have been approved, the draft of a deed to give effect thereto is prepared by the lady's soli- citor, and settled at Chambers, with or without the assistance of the conveyancing counsel ; and the engrossment is signed in the same manner as in the case of a ward of Court Where a draft of a settlement had been already prepared by one of the conveyancing counsel of the Court, it was directed to be settled in Chambers, without being referred to the conveyancing 1 Re DdlUm, 6 De G. M. & O. 901 : 2 Jur. N. S. 1077 ; ovemiUng 8 Sm. ft O. SSI ; am, howavmr, Bt Strong, i Jur. N. 8. 1841, L, C. * LJi. ?i»«i and that, liberty to joumed at thereon is e appoint- roduced to at has any 3 care, the lians, what »n in life of uid fortune ) person to )perty, for- e proposed r the settle- > whom the ited to the i is not its iety of the Le proposed aent in any ) all the cir- )proved, the lady's soli- ssistance of pied in the INFANTS — MAINTENANCE AND ADVANCEMENT. 1409 eouu8el.^ The Court, in the case of a female infant, sauetioned the introduction of a clause rendering it compulsory on the successive owners of the estate, cr their husbands, to assume the name and ai'ms of the ancestor from whom she derived the property, and limiting the estate over in case of default or refusal ; but refused to sanction a clause that no pei'son professing the Roman Catholic religion should take any interest under the settlement, and limiting the estate over in that event." When the engrossment has been signed, the Registrar prepares and issues the minute of an order approving the settlement, and directing that the infaiit be at liberty to execute it. The order is drawn up in the usual way. 1 Re WiUiauu, 8 W. R. 078, M. R. 2 Re Waiianu, 6 Jur. N. S. 1004: 8 W. R 678, M. R. aped by one scted to be mveyanoing ; IM, hOWSVW, Rt