31 E .^ 
 
 Scriven 
 
 R..y. 8 
 Davis o 
 
 Pdst S 
 Denisor 
 Plumpt] 
 
 Tost 8 
 
 Underh: 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 lET, 
 
 1882. 
 
 H, 
 
 !• 
 jwn. 
 
 .ent. 
 
 3. cl. 
 icts. 
 
 Bvo. 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 t^^ 
 
 U^y. 
 
 lOs. 6-. 
 Underh: 
 Underh 
 
 Michael 
 
 Editio 
 Oke's F 
 
 55. clo 
 Oke's G 
 
 Bv Bi 
 Oke's M 
 Oke's W 
 Oke's N 
 Fisher's 
 
 ptTty. 
 
 Hamel's 
 Davis's 
 Davis's 
 
 may > 
 Cinirt 
 
 Davis's 
 
 8vo. 
 Drewry 
 
 I)i\-is! 
 Mozley 
 
 2<is. cl 
 Folkarc 
 
 45i. cl 
 
 Tristra: 
 Coote's 
 
 in pr; 
 Chadwi 
 
 i2«. c: 
 
 Bund's «o „- , . 
 
 Powell's Principles and Practice of the Law of Evidence. 
 
 4tli Edition, by Cltlek iind Guiffik. Post Svo. \><s. cloth. 
 Hi^rpins's Digest of Cases on the Law^ and Practice of Letters 
 
 i'attnt for Inventions. Svo. lOa-. net, cloth. 
 
 Crump's Law^ of Marine Insurance and Qeneral Averagre. 
 
 l{i.yiil 8vo. 'lU. clotli. 
 Collier's Law of Contributories in the Winding'-up of Joint 
 
 Stock CompiiiiifS. I'oHt 8vo. Ms. chjtli. 
 
 De Colyar's Law of Guarantees and Principal and Surety. 
 
 Kvo. 1 15. dotli. 
 Grant's Law of Bankers and Banking. 4th Edition, by 
 
 C. C. M. I'm Ml' I UP., bvo. [/n ih: jirrss 
 
 ;oth. 
 oth. 
 2nd 
 
 Bvo. 
 
 881. 
 
 oth. 
 oth. 
 oth. 
 Pi-o- 
 
 .6d. 
 
 It 
 
 >\mty 
 
 Edition. 
 
 aancery 
 
 d1. Bvo. 
 
 ral Bvo. 
 
 3. cloth. 
 Justice 
 
 20.5. cloth. 
 Roy. Svo. 
 
 For complete Caialogue, see end of this Book.
 
 C ;^.% CA^vcd^^ 
 
 Gierke and. Brett's Conveyancing- and La'w of Property Act, 
 
 1881, and otlier Acts. 2nd Edition. lu 1 vol. I'ost 8vo. 7s. (!/. clolli. 
 
 Robson's Bankruptcy Practice. 4th Edition. In 1 vol., 8vo. 
 
 3Ss. cloth. 
 
 Sir T. Erskine May's Parliamentary Practice. 8th Edition. 
 
 8vo. 21. 2s. cloth. 
 
 Bund's La-wr of Salmon Fisheries, 1876. Post 8vo. 16s. cloth. 
 Kelly's Conveyancing: Draftsman. 2nd ed. Post 8vo. 12s. 6d. 
 Redman's Law of Arbitrations and Awards. 8vo. 12s. cloth. 
 
 Redman's References under the Judicature Acts. 8vo. 2s. 
 
 cloth. 
 
 Hunt's Law of Frauds and Bills of Sale. Post 8vo. 9s. cloth. 
 
 Seaborne's Law of Vendors and Purchasers of Real Pro- 
 perty. 2nd Edition. Post 8vo. 10s. 6rf. cloth. 
 
 Fawcett's Law of Landlord and Tenant. 8vo. 14s. cloth. 
 
 Saunders's Law applicable to Neglig-ence. Post 8vo. 9s. cl. 
 
 Shelford's Law^ and Practice of Joint Stock Companies. 
 
 2nd Edition. By D. Pitcairx and F. L. Latham. 8vo. 21s. cloth. 
 
 Shelford's Law of Railways. 4th edit. By "W. C. G-len, Esq. 
 
 In 2 vols. Royal Svo. 63s. cloth. 
 
 Ingram's Law^ of Compensation for Lands and Houses. 
 
 2nd Edition. By Elmes. Post Svo. 12s. cloth. 
 
 Coombs' Solicitors' Bookkeeping. 8vo. 10s. 6d. cloth. 
 
 Coote's Admiralty Practice. 2nd Edition, with Forms and 
 
 Tables of Costs. 8vo. 16s. cloth. 
 
 Bainbridge's Mines and Minerals. 4th Edition. 45s. cloth. 
 
 Trow^er's Church, Parsonage and Schools Building Laws, 
 
 continued to 1874. Post Svo. 9s. cloth. 
 
 Rouse's Practical Conveyancer. 3rd ed. 2 vols. Svo. 30s. cl. 
 
 Sir Robert Phillimore's International Law. 3rd Edition. 
 
 Vol. 1. 24s. cloth. 
 *,* Ind Edition, Vol. 3, price 36s.; and Vol. 4, price 34s., may he had separately 
 
 to complete set. 
 g^^ A Third Edition of Vol. 2 is in the Press. 
 
 Hunt's Law of Boundaries and Fences and Rights of Waters. 
 
 2nd Edition. 12s. cloth. 
 Rouse's Copyhold Enfranchisement Manual. 3rd Edition. 
 
 12mo. 10s. 6rf. cloth. 
 Dixon's Law of Partnership. Svo. 22s. cloth. 
 Barry's Practice of Conveyancing. Svo. 18s. cloth. 
 
 Woolrych on the Law of Sewers, with the Drainage Acts. 
 
 3rd Edition. Svo. 12s. cloth. 
 
 Tudor's Leading Cases on Real Property, Conveyancing, 
 
 Wills and Deeds. 3rd Edition. Royal Svo. 21. 12s. 6./. cloth. 
 
 PhiUips's Law of Lunatics, Idiots, &c. Post Svo. 18s. cloth. 
 Powell's Law of Inland Carriers. 2nd edit. Svo. 14s. cloth. 
 
 Christie's Crabb's Conveyancing. 5th Edition, by Shelford. 
 
 2 vols. Royal Svo. 31. boards. 
 Wigram's Extrinsic Evidence in the Interpretation of Wills. 
 
 4th Edition. Svo. lis. cloth. 
 McDermot's Irish Land Acts, with Rules. 8vo. 10s. cloth. 
 
 Ruegg's Treatise upon the Employers' Liability Act. 
 
 Post Svo. 5s. cloth. 
 
 *^* For complete Catalogue, see end of this Book.
 
 
 PROCEDURE 
 
 CHANCERY DIVTSIOISr 
 
 HIGH COUET OF JUSTICE.
 
 (Otbfr c'^ovh.s for .^tubcuts publifikl) bg ^Icfi.'jr.s. guttcrtonvtb 
 
 Stephen's New Commentaries. — EigMh Edition. 
 
 Four vols.. Svo., £4: 4*. cloth. 
 >rR. SERJEANT STEPHEN'S NEW CO^IMENTAEIES ON THE 
 L.WV.s OF EXliL.VXD, partly founded on BLACKSTOXE. By Jaues Stephen. 
 Y.>q.. LL.D.. Jud;;e of County Courts. The Eighth Edition. Prepared for the press 
 l>y IIe-vey St. Jjuces Stephen, of the Middle Temple, Barrister-at-Law. 
 
 •,• Tfif tcor/c sehctcd for the Intermediate Examinations for Solicitors. 
 
 Tudor's Real Property, &c.— Third Edition. 
 1 thick volume, royal 8vo., price £2 : Vis. Qd. cloth. 
 A SELECTION OF LEADING CASES ON THE LAW EE- 
 LATLNG TO REAL PROPERTY. COXVEYAXCIXG, AXD THE COX- 
 STRUCTIOX OF WILLS AXD DEEDS: with Xotes. By Owen Davis I'ttdoe, 
 F.sq., of the Middle Temple, Barrister-at-Law, Author of " A Selection of Leading 
 Cases in Equity." Third Edition. 
 
 Underhill's Law of Trusts. 
 In 1 vol., post 8vo., 8«. cloth. 
 A CONCISE MANU.AL OF THE LAW RELATING TO PRIVATE 
 TRUSTS AXD TRUSTEES. By Aethxje U^^)EEHILL, M.A., LL.D., of Lincoln's 
 Inn, Esq., Barrister-at-Law. 
 
 Underhill's Law of Torts.— Third Edition. 
 
 One vol. post Svo., 8.s. cloth. 
 
 A SUMMARY OF THE LAW OF TORTS, or WRONGS INDE- 
 
 PEXDEXT OF COXTRACT. Third Edition, including the Employers' Liahilitj- 
 Act, 18i>0. By Ahthi-e Unt)Eehill, M.A., LL.D.. of Lincoln's Inn, Esq., Barrister- 
 nt - Law : assisted by Claude C. M. Ploiptee, of the Middle Temple, Esq. , BaiTister- 
 .t-Law. 
 
 Plumptre on Contracts. 
 
 One vol.. post 8vo., 8.$. cloth. 
 
 A SUMMARY OP THE PRINCIPLES OF THE LAW OF SIMPLE 
 
 CONTRACTS. By Claude C. M. Plumptee, of the Middle Temple, Esq., 
 
 Barrifitcr-at-Law. i' > m . 
 
 •»• Forming a Companion Volume to UndcrhiU on Torts. 
 
 Seaborne's Law of Vendors and Purchasers.— Second Edition. 
 
 One vol.. post Svo.. 10*. 6^. cloth. 
 A CONCISE M.VNUAL OF THE LAW OF VENDORS AND PUE- 
 rilASEItS OF REAL PROPERTY. By Hexey Seaboexe, Solicitor. Second 
 
 Boyle's Action at Common Law. 
 
 1.T^l'./-.Tr, r ■, *-'"'^' '^'°'- ^"^■°-' 'J'^- floth. 
 
 ., ^ .y^^^^ ^^^' '"^^ ACTION AT ('(JMMON LAW, showing at a glance 
 , "■ \^JM"'-e under the Judicature Acts and Rules in an Action in the Queen's 
 1 .-ncn. ( oniniou Plea.s, and Exchequer Divisions of the High Court of Justice. By 
 Hi;niiKiiT P.. Boyle, Solicitor. ^ 
 
 Mosely's Articled Clerks' Handy-Book, by Bedford. 
 
 T*i- '^-^^ TACTICAL HANDY -BOOK OF ELEMENTARY 
 JL.AW ; cI<«KT.ed for the Use of Articled Clerks, ^vith a Course of Study, and Hints 
 «n lu-nciin^ for the Intcnnctliate and Final Examinations. Second Edition. By 
 l.i>WAtti) IlEXsmwK BEiiKonn, Solicitor.
 
 p'actical aiiir fywcm |toual 
 
 or THE 
 
 PROCEDURE 
 
 OF TIIK 
 
 CHANCERY DIYISION 
 
 OF THE 
 
 HIGH COIJPtT OF JUSTICE, 
 
 BOTH IN ACTIONS AND MATTERS. 
 
 BY 
 
 ARTHUR UNDERHILL, M.A., LL.D., 
 
 OF Lincoln's inx, barrister-at-law. 
 
 Author of " A Concise Treatise on the Laiv of Private Trusts and 
 
 Trustees ;'''' and "A iSummari/ of the Law of Torts.'" 
 
 1 
 
 LONDON: j 
 
 BUTTERWORTHS, 7, FLEET STREET, 
 ICafio ^ublisi^crs to ti^c e^uccn's most excellent i^tajcstp. 
 
 DUBLIN : HODGES, FIGGIS & CO. 
 
 EDINBURGH : T. & T. CI-ulRK ; BELL & BRADFUTE. 
 
 CALCUTTA : THACKER, SPINK & CO. MELBOURNE : GEO. ROBERTSON. 
 
 1881. ]
 
 T 
 
 1lnX3 c 
 IS? I 
 
 i.oxDox : 
 
 PUIXTED BY C. P. KOWOKTH, BEEASl's BUILDIXOS, CHANCERY LANE, E.G.
 
 VICE-CHANCELLOR 
 
 The Hon. Sir CHARLES HALL, Knight, 
 
 One of the Judges of Her Majesty's High Court of 'Justice, 
 
 AS A UU3IBLE TEIBUTE 
 
 TO HIS EMINENT JUDICIAL QUALITIES, AND TO THE UNVAEYINCi COURTESY 
 
 WHICH HE DISPLAYS 
 
 TOWAEDS ALL WHO PRACTISE BEFORE HIM, 
 
 %\\^ (litark 
 
 BY PERMISSION, 
 
 MOST RESPECTFULLY INSCRIBED. 
 
 '\'m^
 
 PREFACE. 
 
 Now that the old Court of Clianceiy has become 
 merged in the new High Court of Justice, it 
 may be asked why a separate account of the 
 procedure of the Chancery Division, as distin- 
 guished from the entire court, is needed ? The 
 answer is, that although theoretically it is true, 
 with certain limitations, that any cause of action 
 may be tried in any division of the court, yet 
 there is a large and important class of actions, 
 necessarily confined to the Chancery Division, 
 because that division alone possesses the ad- 
 ministrative machinery, without which the 
 complicated questions which perpetually arise 
 in the execution of trusts, the distribution of 
 estates, and the general administration of pro- 
 perty, cannot be satisfactorily worked out. No 
 fusion of Law and Equity can make the same 
 procedure applicable to the decision of an 
 action for o'oods sold and delivered, and the
 
 Vlll PKEFACE. 
 
 administration of the property of a deceased 
 millionnaii'e. 
 
 In addition to this, it is found that in prac- 
 tice but few actions of a Common Law nature 
 are commenced in the Chancery Division. 
 
 The procedure, therefore, in each of the 
 several divisions of the High Court has, what 
 may be figuratively called, an individuality of 
 its own, as well as a common similarity ; and I 
 am led to the conclusion that a guide to the pro- 
 cedure of the Chancery Division, setting forth 
 so much of the general rules of the procedure 
 of the High Court as is applicable to this 
 division in common with the others, adding 
 to that general practice the procedure which 
 is solely apj)licable to this division, and omit- 
 ting all such rules as are solely apj)licable to 
 other divisions of the court, will not be un- 
 acceptable. 
 
 Then as to the scope of this Work. In the 
 tirst place, it makes no pretence to be a com- 
 j)lete and detailed Treatise on the minutioi of 
 Chancery j)ractice. Such a book would neces- 
 sarily be some ten times the bulk of this one.
 
 PREFACE. IX 
 
 and could not hope to compete witli the well- 
 known volumes of Mr. Daniell, or with the very 
 excellent work on the subject just produced by 
 Mr. Frank Evans. On the other hand, it is 
 not meant as a mere outline for the use of per- 
 sons who may wish to acquire only a general 
 notion of Chancery practice. 
 
 In short, my aim has been to produce in 
 relation to Chancery, a work somewhat similar 
 to what was effected in relation to Common Law 
 procedure, by the late John Grray, Esq., Q.C., 
 in his well-known '' Country Attorney's Prac- 
 tice ;" a work which shall afford to the practi- 
 tioner information on all the usual points 
 occm'ring in practice, and at the same time 
 be so arranged, and so compressed, as to be a 
 useful and complete text-book for the student. 
 
 I have entirely omitted all reference to the 
 procedure observed in matters arising under the 
 Companies Acts, 1862 to 1877, because such 
 matters could not be properj^ considered in a 
 small work like this, and also because they 
 practically form a distinct and special branch 
 of practice, to the explanation of which entire 
 books have been devoted.
 
 PREFACE. 
 
 In conclusion I have to express my thanks 
 to my friend Mr. T. M. Whitehouse, jim., of 
 the Middle Temple, for kindly assisting me in 
 the perusal and correction of the proof sheets. 
 
 ARTHUR UNDERHILL. 
 
 !3, SorTnAjirroN" Buildixgs, Cuaxczky La>-e. 
 Jiih/, 1881.
 
 CONTENTS. 
 
 PAGE 
 Peeface vii 
 
 Table of Cases xvii 
 
 Table of Rules and Okdeks xxiii 
 
 INTRODUCTORY 1 
 
 DIVISION I.-OF ACTIONS. 
 
 PRELIMINARY SYNOPSIS 19 
 
 Sub-division I.— THE WRIT OF SUjVIMONS. 
 
 Chapter I. — The Geneeal Foem and Natuee of the Writ . . 25 
 
 Chapter II. — The Parties 30 
 
 Section 1. — Particular Persons with regard to whom the 
 
 General Rule is modified 30 
 
 Subsec. \.—The Crown 30 
 
 2. — Forelf/n Governments 33 
 
 o. — Corporations 34 
 
 4. — Partners/dp Firms 35 
 
 5. — Aliens 36 
 
 G. — Married Women 36 
 
 1.— Infants 38 
 
 8. — Lunatics 41 
 
 9. — Paupers 42 
 
 Section 2. — Persons who ought to be made Parties 44 
 
 Section 3. — Change of Parties by Death, &c 50
 
 XU COXTENTS. 
 
 Sub-division I.— THE WRIT OF SUMMONS— fo«^(f. page 
 
 Chattek III. — Indoesemext of the Writ 51 
 
 Chaptee IV. — Issuing of the Writ 55 
 
 Chapter V. — Seevice of the Writ 59 
 
 Sub-division II.— DEFENDANT'S PROCEEDINGS ON 
 SERVICE OF THE WRIT. 
 
 Chapter I. — Appeaeance 64 
 
 Section 1. — General Practice , 64 
 
 Section 2. — Appearance of Infants and Lunatics 68 
 
 Chaptee II. — Conditional Appearance 70 
 
 Chapter III. — Default of Appearance 71 
 
 Chapter IV. — Interpleader 73 
 
 Chapter V. — Peoceedings to bind a Thied Paety 75 
 
 Sub-division III.— THE PLEADINGS. 
 
 Chapter I. — Preliminary Observations 78 
 
 Chapter II.— Specific Pleadings op Fact 80 
 
 Section 1. — The Statement of Claim 80 
 
 Section 2. — The Statement of Defence and Counter-claim 86 
 
 Section 3. — The Reply and subsequent Pleadings .• 92 
 
 Chapter III. — Dehuerers 94 
 
 Chapter IV. — Moving on Admissions in an Adversary's 
 
 Pleading 99 
 
 Chapter V. — Amendment op Pleadings 102 
 
 Chapter VI.— Default of Pleading 105 
 
 Chapter VII. — Discontinuance 107 
 
 Sub-division IV.— EVIDENCE. 
 
 Chapter I. — Preliminary Observations 109 
 
 Chapter II. — Evidence of Witnesses 112 
 
 Chaptee III. — Interrogatories 123 
 
 ('hapter IV.— Documentary Evidence 131
 
 CONTENTS. Xin 
 
 SuB-DivisioN v.— TRIAL OF THE ACTION, OR OF ISSUES 
 OF FACT IN IT. 
 
 PAGE 
 
 Chapter I. — Peeliminaey Observations 136 
 
 Chapter II. — Trial before a Judge and Jury 139 
 
 Chapter III. — Trial before a Judge and Assessors 140 
 
 Chapter IV. — Trial before a Judge alone 140 
 
 Chapter V. — Trial op Issues before a Referee 145 
 
 SuB-DmsiON VI.— MOTION FOR JUDGMENT .... 1 50 
 
 Sub-division VII.— the JUDGMENT 154 
 
 SuB-DivisioN VIII.— PROCEEDINGS IN CHAMBERS 
 UNDER THE JUDGMENT. 
 
 Chapter I. — Summons to proceed 161 
 
 Chapter II. — Accounts 164 
 
 Chapter III.— Inquiries 166 
 
 Chapter IV.— Sales 170 
 
 Chapter V. — The Chief Clerk's Certificate 17G 
 
 Sub-division IX.~PR0CEEDINGS IN THE CHANCERY 
 
 PAY OFFICE 179 
 
 Sub-division X.— FURTHER CONSIDERATION . . IDl
 
 XIV CONTENTS. 
 
 Si-B-Divisiox XT.-lNTERLOCI'TOIiY ArPLICATIOXS. 
 
 PAGE 
 
 CiiAPTEE I. — Peeliminaey Obseevations 19G 
 
 CuAPTEK II. — The diffeeent Modes of making Ixteelocutoey 
 
 Ari'ncATiONS 197 
 
 Section 1. — By Motion 197 
 
 Section 2. — By Petition 20;j 
 
 Section Z. — By Summons 210 
 
 Chaptee III. — The most usual Inteeloctjtoey Applications . . 213 
 
 Section 1 . — For an Injunction 213 
 
 Section 2. — For a Receiver 216 
 
 Section 3. — For a Writ of Ne exeat Reg-no 220 
 
 Section 4. — For an Account 221 
 
 Section 5. — For an Allowance pending Litigation 223 
 
 Section 6. — For Consolidation of Actions 223 
 
 Section 7. — For the Transfer of an Action 224 
 
 Section 8. — For the Removal of Proceedings from District 
 
 Registry 226 
 
 Section 9.— Special Cases 226 
 
 Section 10. — Miscellaneous Applications 228 
 
 DIVISION II.— OF MATTERS. 
 
 PRELIMINARY 233 
 
 Sl-b-mvision I.— matters RELATING TO TRUSTEES. 
 
 Chaptee I.— Petitions for the Opinion of the Couet 234 
 
 Chaptee II. — The Teustee Relief Acts and Legacy Duty 
 
 Act 236 
 
 Chaptee III.— The Teustee Acts 242
 
 CONTENTS. XT 
 
 Sub-division II.— MATTERS RELATING TO SETTLED 
 PROPERTr. 
 
 PAOE 
 
 Chapter I. — The Settled Estates Act 251 
 
 Chapter II. — The Lands Clauses Consolidation Acts 270 
 
 Sub-division III.— MATTERS RELATING TO INFANTS. 
 
 Chaiter I. — Custody of Infants 277 
 
 Chapter II. — Guardianship of Infants 278 
 
 Chapter III. — Mareiaqe of Infants 280 
 
 Chapter IV. — Infants' Property 282 
 
 Sub-division IV.— MISCELLANEOUS MATTERS. 
 
 Chapter I. — Administration Summonses 285 
 
 Chapter II. — Charities 287 
 
 Chapter III. — Married Women's Property 292 
 
 Chapter IV. — Vendors and Purchasers 293 
 
 Chapter V. — Solicitors 295 
 
 Section 1. — Striking a Solicitor off the Roll 296 
 
 Section 2. — Taxing a Solicitor's Bill of Costs 297 
 
 Section 3. — Solicitor's Lien on Property recovered 299 
 
 Chapter VI. — Distringas and Restraining and Stop Orders 299 
 
 Chapter VII. — Matters not before Specified 305
 
 XVI CONTENT>:. 
 
 DIVISION III.-OF PROCEEDINGS COMMON TO 
 ACTIONS AND MATTERS. 
 
 PAGE 
 
 Sdb-division I.— taxation OF COSTS 313 
 
 Sub-division II.— ENFORCING JUDGMENTS AND 
 
 ORDERS. 
 
 Chaptee I. — Ikteoductop.y 318 
 
 Chaptee II. — ExpoEcrs-G Judgmexts A^'D Oedees by Weits of 
 
 Exzcxnox 319 
 
 Section 1. — Of Writs of Execution generally 320 
 
 Section 2. — The different kinds of Writs of Execution . . 323 
 
 Subsec. 1. — Writ of Attachme7it 323 
 
 2. — Writ of Sequestration 327 
 
 ^.— Writ of Possession 329 
 
 A:.— Writ of Deliver II 330 
 
 0. — Writ of Fieri Facias 330 
 
 &.— Writ of Elegit 331 
 
 Chaptee III. — Extoecing Judgments axd Oedees otheetvtse 
 
 THAX BY Weits of Executiox 332 
 
 Section 1.— Attachment of Debts 332 
 
 Section 2. — CLarging Orders , . . 335 
 
 Section 3. — Committal 336 
 
 Section 4. — ^Vesting Orders 339 
 
 Section 5. — Receiver ' 339 
 
 Sub-division III.— APPEAL 34C 
 
 SuB-DmsiON R'.— MISCELLANEOUS REGLT-ATIONS 
 WITH REGARD TO PROCEDURE. 
 
 Chaptee I. — Sittings, Vacations and Tihe 347 
 
 Chaptee II. — Couet Fees 349 
 
 Chaptee III. — Supplemental Actions 352 
 
 INDEX z:>9,
 
 TABLE OF CASES. 
 
 PAGE 
 
 AnuD V. Riches 32.') 
 
 Aird, Re 224 
 
 Aitkin v. Dunbar 10(3, 204 
 
 Allen, Re 240 
 
 V. Kennett o3 
 
 Andrews v. Cradock 39 
 
 Anstey (■. "VVoohvich Co 129 
 
 Arrow-smith, Re 244 
 
 Ashton V. Wood 178 
 
 Ash-w'orth r. Outram 324 
 
 Askew V. N. E. Rail. Co. . . 103 
 
 Att.-Gen. v. Kerr 33 
 
 V. Knight 33 
 
 V. Middleton 32 
 
 V. Oglander 32 
 
 V. Parker 32 
 
 V. Shrewsbury- 
 Bridge Co 32 
 
 V. Smart 32 
 
 v. Swansea Co. . . 322 
 
 — — — r. Tomline 159 
 
 V. Tyler 33 
 
 Ayles r. Cox 247 
 
 B. 
 
 Bagnall v. Carlton 336 
 
 Banfield v. Grant 69 
 
 Barlee r. Barlee 38 
 
 Barrington, Re 234 
 
 Beardmore v. Gregory .... 36 
 Beddall v. Maitland 90, 106, 151 
 Beddington v. Beddington . . 70 
 Bedford Charity, Re .... 32, 288 
 
 Beioley r. Carter 251 
 
 Bell v. Wilkinson 96, 99 
 
 Benbow v. Low 93, 124 
 
 Bennett v. Moore 101 
 
 Bentley r. Bentley 170 
 
 Berkley v. Standard Co 127 
 
 U. 
 
 PAGE 
 
 Bemand, Re 279 
 
 Besant, Re 278 
 
 Best r. Pembroke 335 
 
 Bird r. Harris 50 
 
 V. Heath 159 
 
 Birmingham Estates Co. v. 
 
 Smith 90 
 
 Blaine, Ex parte 36 
 
 Blancliard, Re 246 
 
 Bloye, Re 240 
 
 Blythe & Young's Contract, 
 
 Re 295 
 
 Boddy V. Wall 104 
 
 Bolton V. Bolton 121 
 
 Bordier r. BuiTell 137 
 
 Boussmaker, Ex parte .... 36 
 
 Bown r. Stenson 175 
 
 Box, Re 234 
 
 Boyes r. Cook 81 
 
 Brackenbury, Re 249 
 
 Bradshaw v. Bradshaw .... 279 
 
 Brandon v. Brandon 275 
 
 Breslauer v. Barwick . . . ,85, 93 
 
 Breton v. Mackett 81 
 
 Brettle, Re 246 
 
 Briant v. Tebbutt 178 
 
 Brown v. Oakshot 170 
 
 Browne, Re 272, 273, 274 
 
 &Siblcy'sContract,Re 294 
 
 Browning v. Sabin 325 
 
 Bryant, Re 241 
 
 Burgoine v. Taylor 144 
 
 Bumell j;. Bumell 101 
 
 Burroughs, Lynn & Sexton, 
 
 Re 294 
 
 C. 
 
 Caldwell v. Pagham Har- 
 bour Co 29 
 
 Campbell v. Campbell 40 
 
 b
 
 XVlll 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Capes V. Brewer 62 
 
 Cargill r. Bower 85 
 
 Carver v. Pinto Leite 134 
 
 Cast r. Payser 169 
 
 Cater's Trusts 241 
 
 Cavander, Re 345 
 
 Chapman v. Real Property 
 
 Co 224 
 
 Charlton v. Charlton 346 
 
 Chestei-field Colliery Co. v. 
 
 Black 129 
 
 Child V. Stenning 45, 49 
 
 Chorlton v. Dickie. , 145, 152, 155 
 
 Clark, Re 250 
 
 Clarke v. Callow 87 
 
 Clayton r. Clark 279 
 
 Clements v. Norris 225 
 
 Clough, Re 258, 262 
 
 Clowes V. Hilliard 45 
 
 Clutton V. Lee 100 
 
 Cockshott r. London General 
 
 Cab Co 145 
 
 Coleboume r. Colebourne . . 216 
 
 CoUambell v. Plight 93 
 
 Cohnan v. Turner 286 
 
 Colyer v. Colyer 170 
 
 Cook V. Enchmarsh 53 
 
 Cooper V. Jones 247 
 
 Costa Rica (Repub.) «;. Strous- 
 
 berg 332 
 
 Cox V. Wright 41 
 
 Craig V. Phillips 341 
 
 Crane v. Jullion 62 
 
 Crause v. Cooper 239 
 
 Crave v. Barnicot 89 
 
 Cremetti v. Cram 335 
 
 Crofts V. Middleton 120 
 
 Currie, Re 244 
 
 Cuthbertson r. Wood 234 
 
 D. 
 
 Dale ?'. Hamilton 170 
 
 Dally V. Pullen 170 
 
 Dalton, Re 240 
 
 Danvilliers v. Myers 149 
 
 Daubeney v. Coglan 178 
 
 Daubney r. Shuttleworth .. 152 
 
 Davenport r. Stafford 156 
 
 David r. Daltou 222 
 
 Davies, Re 235 
 
 PAGE 
 
 Davy V. Garrett 83, 103 
 
 Dawkins r. Lord Penrhyn. . 87 
 
 Dawson v. Malley 333 
 
 Day V. Whitaker 317 
 
 De Carriere v. De Colonne . . 36 
 
 Dear v. Sworder 91 
 
 Delves v. Delves 176 
 
 Dennis, Re 234 
 
 Dentr. Dent 333 
 
 Dicks V. Brooks 344 
 
 Dickson v. Harrison 212 
 
 Disney t'. Longboume .... 125 
 
 Dolphin V. Layton 333 
 
 Drover v. Beyer 220 
 
 Du Plessis V. Att.-Gen. . . 30, 31 
 
 Duckett V. Gover 45 
 
 Duggan's Trusts 208 
 
 Duke of Bedford v. King of 
 
 Hanover 34 
 
 Dutch W. I. Co. V. Van 
 
 Moyses 35 
 
 Dymond v. Croft 63, 72 
 
 E. 
 
 Edwards v. Edwards 217 
 
 — r. Spaight 120 
 
 Elliott, Re 241 
 
 Elmore, Re 235 
 
 Emma Mining Co. v. Grant 138 
 Emperor of Austria v. Day 34 
 
 Evans, Re 235 
 
 V. Debenham 224 
 
 Evelyn r. Evelyn 136 
 
 Everett r. Lawrence 341 
 
 Eyre r. Cox 54 
 
 Fellowes, Re 246, 249 
 
 Felstead v. Grey 142 
 
 Field V. Field 225 
 
 Flitchcroft, Re 248 
 
 Forsyth r. Ellice 123 
 
 Fowler v. Knoop 77 
 
 Fox V. Blew 36 
 
 V. Suwerkrop 39, 40 
 
 Foyard, Re 240 
 
 Treason v. Loe 130, 13G
 
 TABLE OF CASES. 
 
 XIX 
 
 PAGE 
 
 Fritz V. Hobson 153 
 
 Fumess v. Booth 77 
 
 Fynn, Re 279 
 
 G. 
 
 Gardner, Re 244 
 
 Garling v. Royds 138 
 
 Gatti V. Webster 222 
 
 Gee V. Gee 39 
 
 Geldard v. Ramble 173 
 
 Gibson v. Woolland 171 
 
 Gilbert v. Com. Op. Co 118 
 
 t;. Smith 101 
 
 Gillott V. Kerr 101 
 
 Gladstone v. Musurus Bey. . 34 
 
 Gledhill v. Hunter 53 
 
 Goddard v. Thompson 322 
 
 Goodman, Re 239 
 
 Gore-Langton, Re. .272, 273, 274 
 Great Aust. Gold Co. v. 
 
 Martm 58 
 
 Green, Re 235 
 
 V. Coleby 81 
 
 V. Scvin 90, 93 
 
 Griffiths V. Jones 176 
 
 Guy v. Guy 39,40 
 
 H. 
 
 Hackwell, Re 222 
 
 Hair, Re 298 
 
 Haldane v. Eckford 50 
 
 Haley v. Barry 336 
 
 Hall V. Eve 92 
 
 V. Hall 329 
 
 ■ V. Pritchett 333 
 
 Hanken, Re 341 
 
 Hansford, Re 239 
 
 Harbord v. Monk 103, 125 
 
 Hardley, Re 239 
 
 Harris c. Gamble 87 
 
 V. Harris 40 
 
 Harrison r. Harrison 346 
 
 Hastie v. Hastie 344 
 
 Hastings v. Hiu'ley 63 
 
 Hatch V. Searles 1 70 
 
 Hawes, Re 274 
 
 PAGK 
 
 Hawkesley v. Bradshaw .... 88 
 
 Hawldns, Ex parte 333 
 
 Heucage v. Aiken 202 
 
 Henrick r. Sutton 299 
 
 Herring v. Bischoftsheim . . 84 
 Hetherington v. Longrigg. . 100 
 Heugh r. Chamberlain .... 103 
 
 Highton V. Trehemo 341 
 
 Hilbnau v. Mayhew 224, 225 
 
 Hobson, Re 271 
 
 Hodges V. Hodges 96 
 
 Holloway r. York 89, 225 
 
 Holmes r. Harvey 224 
 
 Holt v. Jesse 159 
 
 Ho aduras Rail . Co . ■y . Lef e vre 4 9 
 
 Hooper, Re 235 
 
 Hotham, Re 234 
 
 Howard, Re 60, 70 
 
 Howell r. Kightley 178 
 
 Huggius V. Tweed 89 
 
 Hughes v. Jones 160 
 
 Hullett V. King of Spain. .33, 34 
 Humphreys r. Edwards .... 225 
 Hiuit r. City of London Real 
 
 Property Co 139 
 
 Hunter, Ex parte 333 
 
 V. Hunter 341 
 
 Hutton r. Mansell 175 
 
 Innes v. East India Co 333 
 
 International Society v. City 
 
 of Moscow Gas Co 340 
 
 Ireland r. Bade 218 
 
 Irlam v. Irlam 222 
 
 Jackson v. Manby 323 
 
 Jacob, Re 234 
 
 James r. North 221 
 
 Jephson, Re 239 
 
 Jones, Re 178 
 
 ■ r. Fawcett 38 
 
 r. Powell 279 
 
 c. Quiuu 86 
 
 b 2
 
 XX 
 
 TABLE OF CASES. 
 
 K. 
 
 PAOE 
 
 Kelly V. Bylcs 345 
 
 Kenyon r. Kenj-on 40 
 
 Kerr v. Gillespie 36 
 
 King of Spain v. Hullett . . 34 
 
 r. Savory, .159, 160 
 
 Kitchinp v. Kitching 53 
 
 Knight's Trusts 241 
 
 Knowles, Re 234 
 
 Lambe v. Orton 178 
 
 Laming r. Gee 345 
 
 Land r. Briggs 340 
 
 Lander r. IngersoU 41 
 
 Landore Steel Co., Re 225 
 
 Lane, Re 248 
 
 Lange v. Lange 54 
 
 Langley, Ex parte 215 
 
 Larken, Re 236 
 
 Laws, Ex parte 342 
 
 Lawson, Ex parte 275 
 
 Laj-man v. East 137 
 
 Lees V. Patterson 89, 221 
 
 Leigh, Re ... . 129, 146, 272, 273 
 
 V. Brookes 138 
 
 Lenton r. Brudenell 169 
 
 LesUe, Re 234 
 
 Lewes (Earl) v. Bamett 323 
 
 Lewis V. Hillman 240 
 
 V. Nobbs 39 
 
 Light r. Light 42 
 
 Lister's Hospital, Re 288 
 
 Litton V. Litton 101 
 
 Lloyd, Re 240 
 
 London Bank of Mexico r. 
 
 Hart 120 
 
 Longman v. East 146, 147 
 
 Loreuz, R* 235 
 
 Ludlow Corporation t'. Green- 
 house 288 
 
 Lushington v. Sewell 69 
 
 M. 
 
 McLay r. Sharp 89 
 
 McVeagh f. Croall 170 
 
 PAGE 
 
 Madras, &c, Co., Re 325 
 
 Manchester New College, Re 289 
 
 ManLsty v. Kenealy 53 
 
 Manly r. Bewicke 130 
 
 MarMiam v. Markham 340 
 
 Marriott r. Marriott.. 29, 54, 103 
 
 Marsh r. Att. -Gen 235 
 
 Martana v. Mann 37, 38 
 
 Maton V. Quick 224 
 
 Matthews r. Whittle 85 
 
 Matthias v. Matthias 54 
 
 Melling r. Bird 272, 273 
 
 Mellor's Policy Trusts, Re. . 293 
 
 MeUor v. Sidebottom . , 101 
 
 Metropolitan Board v. New 
 
 River Co 227 
 
 Meyrick v. Jones 119 
 
 Michel, Re 235 
 
 Michell r. "Wilson 144 
 
 Mills V. Jennings 47 
 
 Mirehoiise v. Bamet 138 
 
 Mockett, Re 234, 235, 236 
 
 Moggxidge r. Thackwell . . 33 
 
 Morris r. Bull 175 
 
 3Iortimer r. West 40 
 
 Morton r. Miller 72, 199 
 
 Mozley v. Cowie 103 
 
 Muggeridge, Re 234, 235 
 
 Mutlow, Re 276 
 
 N. 
 
 National Funds Co., Re 343 
 
 Naylor r. Farrer 89 
 
 Nelson, Ex parte 328 
 
 Nesbitt r. Ben-idge 97 
 
 New Westminster Brewery 
 
 Co. V. Hannah 113 
 
 New Westminster Co. v. 
 
 Hannah 45 
 
 Newbiggin Gas Co. v. Arm- 
 strong 56 
 
 Newcomen v. Coulson 108 
 
 Newell V. "Whitaker 44 
 
 Newman v. Hooke 176 
 
 f . Rooke 334 
 
 1'. SeLfe 69 
 
 Noel V. Noel 134 
 
 Norton f. L. & N. W. Rail. 
 
 Co 342
 
 TABLE OF CASES. 
 
 XXI 
 
 0. 
 
 PAGE 
 
 Ogden r. Lowry 28G 
 
 Original Hartlepool, &c. Co. 
 
 V. Gibb 90 
 
 Ormerod, Re 244 
 
 Ormsby, Ee 217 
 
 Orr V. Diaper 128 
 
 Owen V. Henshaw 299 
 
 P. 
 
 Padwick v. Scott 75, 91 
 
 Palmer, Re 239 
 
 Parker v. Dunn 218 
 
 Parparte r. Dickenson .... 51 
 
 Parsons v. Harris 199 
 
 Partington v. Reynolds .... 36 
 
 Paterson v. Paterson 248 
 
 Payne r. Little 38 
 
 Peacock r. Harper 118 
 
 Peareth v. Marriott 283 
 
 Penn v. Lord Baltimore .... 34 
 Peru (Republic) v. Weguelin 323 
 
 Pett, Re 235 
 
 Peyton, Re 235 
 
 Philpot's Charity, Re 289 
 
 Phosphate Sewage Co. v. 
 
 Hartraont 323 
 
 Piercy f. Young 138 
 
 Pike «'. Fitzgibbon 101 
 
 Pilcher v. Hinds 53 
 
 Plimpton V. Spiller 346 
 
 Pomerania, The 107 
 
 Pooley r. Quilter 173 
 
 Poplar Free School, Re 288 
 
 Popple and Barratt, Re .... 294 
 
 Potts )'. Leighton 217 
 
 Powlett r. Hood 234 
 
 Preston v. Laniont 70 
 
 Prioleau v. United States of 
 
 America 34 
 
 Prowse f . Spurgin 178 
 
 Prycr v. Gribble 145 
 
 Pullen V. Snelus 87 
 
 PurneU v. G. W. Rail. Co. . 341 
 
 R. 
 
 Rafael v. Ongley 62 
 
 Redmayne v. Vaughan .... 86 
 Rees, Re 193, 341 
 
 PAOK 
 
 Reynolds, Re 274 
 
 Rhodes r. Jenkins 341 
 
 Rica Gold Co., Re 362 
 
 Riffey v. Miller ^ 50 
 
 Roberts v. Evans 37, 46 
 
 Rolfe V. Maclarcn 106 
 
 Rowley v. Burgess 223 
 
 Rumsey v. Reade 101 
 
 Russell V. East Anglian Rail. 
 
 Co 333 
 
 V. Sharp 41 
 
 Ruston V. Tobin 138 
 
 Rutter v. Regent 86 
 
 S. 
 
 Saffery, Ex parte 340 
 
 Sale V. Sale 39, 40 
 
 Salt V. Cooper 339 
 
 Sandford v. Sandford 39 
 
 Saiill V. Browne 134 
 
 Saunders v. Jones 124 
 
 Savage, Re 56 
 
 Sharpe, Re 240 
 
 Sharpley, Re 246 
 
 Shaw, Re 234 
 
 Shepheard's Settled Estates, 
 
 Re 250 
 
 Shoetensack v. Price 343 
 
 Sichel V. Raphael 221 
 
 Sidney v. Ranger 173 
 
 Simmons v. Storer 316 
 
 Simpson v. Sadd 175 
 
 Singer Co. v. Loog 138 
 
 Smith, Re 204 
 
 ■ ■ V. Chadwick 224 
 
 V. Grindley 343 
 
 V. Pilgrim 118 
 
 V. Weguelin 34 
 
 Smyth, Re 246 
 
 Sparkcs v. Young 333 
 
 SpiUer, Re 234 
 
 Spratt V. Ward 138 
 
 Sprunt V. Pugh 328 
 
 Spurway, Re 264 
 
 Stahlschmidt v. Walford . . 107 
 
 Staniland r. Stanilaud .... 40 
 
 Stcpliens, Ex parte 305 
 
 Stevens v. Phillips 333 
 
 Stobartt^. Todd 121 
 
 Stooke V. Taylor 90
 
 XX11 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Strousberpf r. Kepublic of 
 Costa Rica 34 
 
 Sunderland Board v. Frank- 
 land 335 
 
 Swindell v. Birmingham Syn- 
 dicate 138 
 
 T. 
 
 Tawell V. Slate Co 53 
 
 Taylor, Re 278 
 
 ■ -r. Duckett 81 
 
 v. Taylor 254, 255 
 
 Thexton v. Edmonston .... 118 
 
 Thomas v. Elsom 212 
 
 Thorp V. Holdsworth 101 
 
 v. Thorp 240 
 
 Tildesley v. Harper . .49, 86, 104 
 
 Towsey r. Groves 39, 41 
 
 Trevelyan r. Charter 159 
 
 Trower, Re 240 
 
 Tuck, Re 235 
 
 Turner v. Turner 178 
 
 Turquand v. Wilson iOl, 222 
 
 U. 
 
 Undertaking of West Riding 
 Railways Bill, Re 178 
 
 Vale V. Oppert 346 
 
 Vavaseur v. Krupp, 90, 106, 108, 
 151 
 
 Viney, Ex parte 340 
 
 Virtue v. Miller 40 
 
 W. 
 
 Waddcll V. Blockey 346 
 
 Wakelee v. Davis 87 
 
 PAGE 
 
 Walker v. Balfour 77 
 
 Ward V. Pilley 146 
 
 Warner v. Moses 113, 122 
 
 V. Murdock 139 
 
 V. Twining 75 
 
 Watson V. Case 46, 342 
 
 V. Rodwell 85 
 
 r. Watts 237 
 
 Wedderbum v. Pickering . . 138 
 
 Westr. White 138 
 
 Westman r. Aktiebolaget 
 
 Snickfabrik 70 
 
 Westminster (Duchess of). 
 
 Re 341 
 
 Whetstone v. Dennis 53 
 
 Whitaker v. Robinson .... 225 
 
 V. Thurston 72 
 
 Widger v. Tepper 336 
 
 Wilcock V. TerreU 328, 333 
 
 Wilding r. Andrews 175 
 
 WilUams r. S. E. Rail. Co. 75 
 
 ■ r. Williams 255 
 
 Williamson v. L. & N. W. 
 
 RaU. Co 83, 85 
 
 Wilson i'. Church 127 
 
 Winterfield v. Bradnum .... 90 
 
 Witham v. Vane 76 
 
 Wood, Re 240 
 
 z'. Bamicot 149 
 
 • V. Boucher 208 
 
 V. Mclnnes 58 
 
 Woodstock, Re 258, 262 
 
 Woolf V. Pemberton 41 
 
 Woolland, Re 240 
 
 Wright t-. Castle 56 
 
 V. Clifford 144 
 
 r. Pitt 134 
 
 Wye Rail. Co. ;-. Hawes . . 76 
 WyUy's Trusts 241 
 
 Yettes V. Biles 204
 
 TABLE OF 
 " RULES «fc ORDERS OF THE SUPREME COURT, 1875." 
 
 PAGE 
 
 Ord. I. r. 1 32 
 
 2 2 
 
 11. r. 1 25,216 
 
 4 57 
 
 8 27 
 
 III. r. 1 216 
 
 2 54 
 
 3 216 
 
 4 26 
 
 7 51,298 
 
 8 222 
 
 IV. r. 1 28 
 
 2 28 
 
 3a 28 
 
 V. r. 1 56 
 
 la 56 
 
 2 66, 377 
 
 3 66, 377 
 
 5 29 
 
 6 56 
 
 7 57 
 
 8 57 
 
 VI. r. 1 58 
 
 2 58 
 
 VII. r. 1 28 
 
 2 36 
 
 VIII. r. 1 378 
 
 2 378 
 
 IX. r. 1 59 
 
 2 59, 62 
 
 3 59 
 
 4 59 
 
 5 59 
 
 6 60 
 
 6a 60 
 
 7 GO, 61 
 
 8 62 
 
 13 63 
 
 X 62 
 
 PAGE 
 
 Ord. XI. r. 1 57 
 
 la 57, 58 
 
 3 58 
 
 5 60 
 
 XII. r. 1 66 
 
 la 66 
 
 2 66 
 
 3 66 
 
 4 67 
 
 5 360 
 
 6b 65,67 
 
 7 65 
 
 8 65 
 
 9 65 
 
 10 65 
 
 11 67 
 
 12 68 
 
 12a 68 
 
 13 65 
 
 14 68 
 
 15 67 
 
 20 68 
 
 XIII. r. 1 72 
 
 9 71 
 
 XIV 51 
 
 XV. r. 1 44,222 
 
 2 45, 222 
 
 XVI. r.l 44,45 
 
 2 45 
 
 3 45 
 
 5 44 
 
 6 49 
 
 7 47 
 
 8 37, 39, 69 
 
 9 46 
 
 9a 48 
 
 10 35 
 
 10a 35 
 
 11 47
 
 Xxiv RULES AND ORDERS OF THE SUPREME COURT, 1875. 
 
 PAGE 
 
 Ord. XVI. r. 12b 167 
 
 13 ..38,45,49,58 
 U 45, 49 
 
 15 58 
 
 16 358 
 
 17 75 
 
 18 76 
 
 20 76 
 
 21 77 
 
 XVII. r. 1 52,54 
 
 2 52 
 
 3 .......... 53 
 
 4 52 
 
 5 53 
 
 6 52 
 
 8 54 
 
 9 54 
 
 XVIII 41 
 
 XIX. r. 1 80 
 
 2 80 
 
 3 89 
 
 4 79, 83, 236 
 
 5 79 
 
 6 72, 80, 199 
 
 7 83 
 
 8 85 
 
 9 83, 88 
 
 10 89 
 
 11 88 
 
 17 87 
 
 18 88 
 
 19 93 
 
 20 86, 94 
 
 21 92 
 
 22 87 
 
 23 87 
 
 21 84 
 
 25 84 
 
 26 85 
 
 27 84 
 
 28 85 
 
 29 72 
 
 29a 117 
 
 XX. r. 1 88, 94 
 
 2 88, 94 
 
 3 88, 89 
 
 XXI. r. 1 80 
 
 XXII. r. 1 86 
 
 2 86 
 
 4 87 
 
 5 91 
 
 G 91 
 
 PAGE 
 
 Ord. XXII. r. 7 92 
 
 8 370 
 
 9 89 
 
 XXIII. r. 1 107, 145 
 
 2 145 
 
 2a 108 
 
 XXR^ r. 1 92 
 
 2 78, 94 
 
 3 94 
 
 XXV 94 
 
 XXVII. r. 1 103 
 
 2 29, 102 
 
 3 102 
 
 4 102 
 
 5 104 
 
 6 103 
 
 7 104 
 
 8 104 
 
 9 104 
 
 10 104 
 
 11 29 
 
 XXVIII. r. 1 94 
 
 2 95, 96 
 
 3 96 
 
 4 95 
 
 5 96 
 
 6 96 
 
 7 102 
 
 8 97 
 
 9 97 
 
 98 98 
 
 11 99 
 
 12 99 
 
 13 96 
 
 XXIX. r. 1 106 
 
 8 lOo 
 
 10 71,98, 105 
 
 11 71, 105 
 
 12 94, 106 
 
 13 106 
 
 14 73,106 
 
 XXXI. r. 1 125 
 
 2 130 
 
 4 127 
 
 5 127 
 
 6 126 
 
 7 128 
 
 9 129 
 
 10 129 
 
 11 132, 170 
 
 12 132 
 
 13 132
 
 RULES AND ORDERS OF THE SUPREME COURT, 1875. XXV 
 
 PAOE 
 
 Ord. XXXI. r. 14 134 
 
 16 135 
 
 17 134 
 
 18 134 
 
 19 129, 13.5 
 
 20 130, 135 
 
 21 130 
 
 22 130 
 
 23 130 
 
 XXXII. r. 2 132 
 
 4 132 
 
 XXXIII. ....222,240 
 
 XXXIV. r. 1 226 
 
 2 227 
 
 3 227 
 
 4 227 
 
 5 228 
 
 6 227 
 
 7 228 
 
 XXXV. r. 2 157 
 
 3 317, 320 
 
 3a ... . 322, 324, 
 
 332, 336 
 
 4 213 
 
 7 213 
 
 8 213 
 
 10 213 
 
 11 67 
 
 12 67 
 
 13 226 
 
 14 67, 226 
 
 16 117 
 
 XXXVI. r. 1 86 
 
 2 137 
 
 3 137 
 
 4 137 
 
 4a 136 
 
 5 137 
 
 6 138 
 
 8 137 
 
 9 136 
 
 10 138 
 
 10a 138 
 
 13 136 
 
 14 139 
 
 15a 139 
 
 17 139 
 
 18 144 
 
 19 144 
 
 20 144 
 
 26 137 
 
 27 137 
 
 U. 
 
 I'AOE 
 
 Ord. XXXVI. r. 28 139 
 
 29a 139 
 
 29b 148 
 
 29c 148 
 
 30 14S 
 
 31 148 
 
 32 148 
 
 33 149 
 
 34 149 
 
 XXXVII. r. 1 112 
 
 2 202 
 
 3 ....114, 203 
 
 3a 114 
 
 3b 114 
 
 3c 116 
 
 3d 117 
 
 3e 116 
 
 3f 115 
 
 4 120 
 
 XXXVIII. r. 1 118 
 
 2 118 
 
 3 118 
 
 4 119 
 
 5 119 
 
 6 116 
 
 XXXIX. r. la 139 
 
 XL. r. 2 146 
 
 5 146 
 
 7 151 
 
 8 151 
 
 9 152 
 
 10 ....153, 161 
 
 11 100 
 
 XLI. r. 1 157 
 
 XLIa 159 
 
 XLII. r. 3 329 
 
 4 . . . . 323, 330 
 
 7 322 
 
 8 322 
 
 9 320 
 
 10 321 
 
 11 321 
 
 12 321 
 
 13 321 
 
 15 ....330, 331 
 
 15a 322 
 
 16 323 
 
 17 323 
 
 18 322 
 
 19 322 
 
 20. .212,322,328 
 21 321 
 
 C
 
 XXvi KU1,KS AND ORDERS OF THE SUPREME COURT, 1875. 
 
 PAGE 
 
 Ord. XLIV. r. 1 323 
 
 2 324, 325 
 
 XLV. r. 1 332 
 
 2 333 
 
 3 333 
 
 4 334 
 
 5 334 
 
 6 334 
 
 7 334 
 
 8 334 
 
 10 334 
 
 XL VI. r. 1 335 
 
 2a 300 
 
 3 300 
 
 4 301, 302 
 
 5 301 
 
 6 302 
 
 7 301 
 
 8 301 
 
 9 302 
 
 10 302 
 
 11 302 
 
 XL VII. r. 1 328 
 
 2 328 
 
 XLVIII. r. 1 329 
 
 2 329 
 
 XLIX 330 
 
 L. r. 2 50 
 
 3 50 
 
 4 50 
 
 5 50 
 
 6 51 
 
 7 51 
 
 LI. r. 1 224 
 
 la 148 
 
 2 224 
 
 2a 225 
 
 3 225 
 
 4 223 
 
 LII. r. 4 216 
 
 Ca 170 
 
 PAGE 
 
 Old. LII. r. 8 214 
 
 LIII. r. 3 200 
 
 4 199,200 
 
 5 202 
 
 6 204 
 
 7 72, 199 
 
 8 199 
 
 LIV. r. 1 210 
 
 LVI. r. 2 79 
 
 3 116 
 
 LVII. r. 1 348 
 
 2 348 
 
 3 348 
 
 4 348 
 
 5 348 
 
 6 348 
 
 6a 348 
 
 8 349 
 
 LVIII. r. 2 344 
 
 3 341 
 
 4 341 
 
 5 345 
 
 6 345 
 
 7 345 
 
 8 343 
 
 9 340 
 
 10 343 
 
 11 345 
 
 12 345 
 
 14 346 
 
 15 340, 346 
 
 16 323, 346 
 
 17 322, 346 
 
 18 346 
 
 LIX. r. 1 70, 160 
 
 2 160 
 
 LXI. r. 1 347 
 
 2 347 
 
 4 348 
 
 5 348 
 
 8 349
 
 A 
 
 OF THE 
 
 PROCEDUEE OF THE CHANCERY DIVISION 
 
 OF THE 
 
 HIGH COURT OF JUSTICE. 
 
 INTEODUCTORY. 
 
 Before an account of the procedure wliicli is observed 
 in the Chancer}^ Division of the High Court of Justice 
 can he intelligent!}'' followed, it is necessary for the 
 reader to have some general knowledge of the history 
 of the several courts of law and equity which, after 
 an interval of seven centuries, were re-united by the 
 Judicature Act, 1873, and now form the divers divisions 
 of one tribunal. 
 
 For this purpose we must direct oiu' attention to 
 times not far removed from the Norman Conquest, and 
 taking the reign of the first Henry as our point of de- 
 ptwture, sketch roughly the rise of English jurispru- 
 dence from the establishment of the first formal Court 
 of Imperial jurisdiction dispensing justice through- 
 out the realm, and exercising authority over all local 
 courts, to the latest reconstruction of om* system of 
 judicature in the year 1875. 
 
 U. B
 
 d INTRODUCTORY. 
 
 Henry I. introduced into England, what I may 
 perhaps be permitted to call a new and improved civil 
 service. 
 
 An official was appointed of great dignity and power, 
 who bore the title of "Justiciar," and whose office, 
 shorn of its political attributes, still surAavcs in that of 
 the Lord Chief Justice of Eni^land. The Justiciar 
 acted as Keutenant-general of the kingdom and regent 
 of the realm in the king's absence, and his staif of 
 assistants, chosen from the barons connected with the 
 royal household, formed a court in the broadest sense, 
 not a court merely for the administration of justice, but 
 a com't having three distinct functions : — As a royal 
 council it exercised (it is true by a merely formal con- 
 sent to the king's will) legislative and consultative func- 
 tions ; in this character it subsists to this day in the 
 Privy Council. As a council of finance, it saw to and 
 regulated the assessment and collection of the revenue ; 
 and as a court of justice it exercised both civil and 
 criminal jm'isdiction, and, by a process which still 
 survives in the Queen's Bench Division in the writ of 
 certiorari, it could call up suits from all lower tribu- 
 nals {a), and, by its vrrit of mandamus, could compel 
 them to do their duty. 
 
 Parris componcre magna, the bureaucracy introduced 
 by Henry I., bore some likeness to the lower ranks of 
 the civil service of British India at the present date, the 
 same individual acting at once as a judge, a collector of 
 revenue, and an administrative official. 
 
 In the reign of Henry II., however, this union of 
 functions ceased, and the king's court or council was 
 
 (<?) See Green's Hist, of the English People, vol. i. p. 145.
 
 INTRODUCTOllY. 8 
 
 broken up by tlie sovoranco of the purely legal 
 members. These members became simply judges, and 
 formed a court whicli still continued to bear the namo 
 of the Aula Regis, or King's Court (h). This separatitm 
 of the Aula Regis from the king's council had a very 
 important bearing on the future of English juris- 
 prudence. 
 
 So long as justice was dispensed by the king in 
 council, by a body possessing legislative as well as 
 judicial functions, the court was not fettered by the 
 strict letter of the law, nor bound to follow precedent 
 and custom to the verge of injustice. To some extent 
 such a court could malie law for the redress of a wrong. 
 But the new court possessed no such powers. It was 
 merely the exponent of the law. However hardly the 
 application of the law might bear upon particular 
 persons, the new coiut was still bound to apply it. 
 If Shylock demanded his pound of flesh according 
 to law, such a court was bound to give him judgment. 
 But ^\'jus summum swpe summa est malitia,^^ and however 
 valuable the new tribunal might be (and it was most 
 valuable) for building up a fixed and certain rule of 
 civil conduct, in place of the arbitrary moral code of 
 successive monarchs, it is obvious that such a court, 
 fenced round with precedents, and restricting itself in a 
 way which wo must now pronounce to bo somewhat 
 pedantic and narrow, must frequently not only have 
 failed to redress a wrong, but, in many cases, have 
 actually aided an unconscientious but acute suitor in 
 the commission of gross injustice. 
 
 To give an instance of this, the Aula Regis presumed 
 
 » 
 
 (i) lb. vol. i. p. 32G. 
 
 b2
 
 4 INTRODUCTORY. 
 
 that every kind of civil injmy must fall within the 
 limits of some particular form of action, {ex. gr. tres- 
 pass, replevin, deht, and so on), and this presumption 
 was so rigidly acted upon, that unless an injury could 
 he referred to some estahlished form of action, the in- 
 jured party was left without remedy. 
 
 This narrowness of the Aula Eegis led to Henry II. 
 reserving to himself and the royal council the cogni- 
 zance of all cases in which the judges failed to do jus- 
 tice, and it is in this reservation that we see the first 
 seeds of the appellate jurisdiction of the House of Lords, 
 the Privy Council, and the equitable jurisdiction of the 
 Lord Chancellor (c) . 
 
 Putting aside the provision of the Grreat Charter, that 
 the court for hearing suits between subject aaid subject 
 should remain in one place, the scheme of judicature 
 commenced in the reign of Henry II. lasted until 
 the time of Edward I. That monarch greatly mo- 
 dified and improved it. By him the Aula Regis was 
 divided into three distinct courts. To the Com-t of 
 King's Bench was assigned the cognizance of all suits 
 (including criminal cases), affecting the king or govern- 
 ment ; to the Court of Exchequer was assigned all 
 cases affecting the royal revenue ; and to the Court of 
 Common Pleas jurisdiction was given in all suits be- 
 tween subject and subject. 
 
 It is no part of this Work to trace the causes which 
 led to the first two of these courts acquiring a concur- 
 rent jurisdiction with the last ; it is sufficient to state, 
 that by a series of acute legal fictions and quibbles, both 
 Queen's Bench and Exchequer eventually succeeded in 
 obtaining cognizance of all civil suits. 
 
 {c) Green'8 Hist, of the Euglisli People, a-oI. i. p. 180.
 
 INTRODUCTORY. O 
 
 In the same reign that this separation of the courts 
 took place, an attempt was made to render the procedure 
 of these courts more elastic, and to give them jurisdic- 
 tion to afford relief in cases which would not fall under 
 any existing form of action, by an act by which it was 
 enacted, that " whensoever from henceforth it shall for- 
 tune in the Chancery, that in one case a writ is found, 
 and in like case falling under like law and requiring 
 like remedy is found none, the clerks of the Chancery 
 (who were the writ issuing officials of the time), shall 
 agree in making the writ, or the plaintiff may adjourn 
 it until the next parliament ; and let the cases be written 
 in which they cannot agree, and let them refer them 
 unto the next parliament, and by agreement of men 
 learned in the law, let a writ be made, lest it should 
 happen that the court should long time fail to minister 
 justice unto complainants" {d). 
 
 New forms of action created under the provisions of 
 this statute were called "actions on the case," but 
 partly owing to the jealousy of the judges (who dis- 
 allowed many of the new writs), partly to the fact that 
 although new complaints were allowed, new and just 
 defences were left unprovided for, and partly to the fact 
 that the new writs being limited to " like cases falling 
 under H];e law, and requiring like remedy," did not 
 apply to dissimilar cases requiring dissimilar remedies, 
 there still remained, and as civilization increased there 
 arose from time to time civil injuries, which were either 
 not susceptible of an}', or at least not adequate, relief 
 at common law, and defences to common law actions, 
 which, although founded on pruiciples of equity and 
 
 (^) 13 Edw. 1, f. 21.
 
 b INTRODUCTORY. 
 
 good conscience, were not capable of being pleaded in 
 the common law courts. 
 
 The old jurisdiction of the king's council, therefore, 
 remained in force, and, indeed, under Edward I. it 
 was greatly developed. As has been truly said by 
 an eminent historian, " his assembly of the ministers 
 and higher permanent officials, and the law officers 
 of the CroAvn, for the fii'st time reserved to itself, in 
 its judicial capacity, the correction of all branches of 
 the law which the lower courts had failed to repress, 
 whether from weakness, partiality or corruption, and 
 especially of those lawless outbreaks of the more power- 
 ful baronage, which defied the common authority of 
 the judges" (c). This jurisdiction of the coimcil for 
 the correction of all breaches of the law, which the 
 lower courts failed to repress, later on took the form of 
 the notorious Star Chamber, and is long since obsolete. 
 The jmisdiction of the council, however, still subsists 
 in the case of appeals from the colonies. 
 
 But besides the jurisdiction of the council itself, the 
 same necessity of tempering the hard and fast rules of 
 the law with equity, led to the equitable jurisdiction of 
 the Lord Chancellor, who at a very early date acquired 
 a separate jurisdiction of his own. It is difficult, if not 
 impossible, to say how this jurisdiction, apai-t from the 
 coimcil, first arose, or how far it was concmrent with the 
 jurisdiction of the council; but it seems to have been 
 thoroughly established under Edward I. In the 
 words of the historian above referred to, the equit- 
 able jurisdiction of the Chancellor " sprang from the 
 defective nature and the technical and unbending rules 
 
 (r) Greou's Hist, of the English People, vol. i. p. 327.
 
 INTRODUCTORY. / 
 
 of the common law. As the council had given rcdi'css 
 in cases where law became injustice, so the Court of 
 Chancery interfered without regard to the rules of pro- 
 cedure adopted by the common law courts, on the peti- 
 tion of a party for whose grievance the common law 
 provided no adequate remedy. An analogous extension 
 of his powers enabled the Chancellor to afford relief in 
 cases of fraud, accident or abuse of trust, and this side 
 of the jurisdiction was largely extended at a later time 
 by the results of legislation on the tenure of land by 
 ecclesiastical bodies (_/'). 
 
 Thus arose the High Court of Chancery, which, from 
 the time of Edward I. down to the end of the year 
 1875 existed as a court of justice, separate and distinct 
 from the ordinary courts of common law, exercising 
 (1) cxdusifc jurisdiction over those cases in which the 
 common law gave no relief, or in which, if relief were 
 given to a plaintiff, injustice would be done to the 
 defendant ; (2) concurrent jm-isdiction in cases where 
 the law did not afford adequate relief, at least without 
 great delay or circuity ; and (3) auxUiary jurisdiction 
 in cases where its peculiar procedure enabled it to obtain 
 evidence not capable of being obtained by the comis of 
 common law. 
 
 The court, however, had nu jurisdiction over cases 
 where the courts of law could afford full and adequate 
 relief. 
 
 The Court of Cliancery differed also very materially 
 from the courts of common law in its method of en- 
 forcing its judgments. The common law courts could 
 enforce their judgments against the proper I u of a suitor 
 
 (/) lb. vol. i. p. 328.
 
 8 INTRODUCTORY. 
 
 or defendant. The Court of Chancery always enforced 
 its orders upon his jjcrson. If he refused compliance 
 with its decree, it imprisoned him for contempt until he 
 I obeyed its order. 
 
 It need scarcely be pointed out that this isolation 
 from the ordinary tribunals caused, at times, much 
 inconvenience, more particularly in those cases in which 
 proceedings in the courts of common law, to which a 
 defendant had no legal defence, were stopped by an 
 injunction from the Court of Chancery. Such conflicts 
 of jurisdiction were a grave source of scandal, and it is 
 obvious that when public attention was once earnestly 
 directed to the fact, that two distinct and in some cases 
 conflicting systems of law were being administered con- 
 currently in the same kingdom, the destruction of such 
 an anomaly w'as only a question of time. 
 
 Accordingly, by the Common Law Procedure Act, 
 1854, an attempt was made to give the common law 
 courts an equitable jurisdiction, by empowering them to 
 entertain equitable pleas in cases where such pleas 
 would have been good ground for an luicouditional 
 injunction in Chancery, restraining the plaintiff from 
 prosecuting the action. 
 
 This act, however, only partially remedied the evil, 
 inasmuch as the common law courts coidd not entertain 
 equitable pleas which w^ould have been sufficient to in- 
 duce the Court of Chancery to grant a conditional in- 
 junction, and it was generally such an injunction, and 
 not an unconditional one, that the court granted in such 
 cases. 
 
 At last, by the Judicature Acts, 1873 and 1875, the 
 old courts of common law and the old Court of Chan- 
 cery, together with the Probate, Admiralty and Divorce
 
 INTRODUCTORY. 9 
 
 Courts, were united and consolidated into one court, 
 called " the Supremo Court of Judicature," possessing 
 the jurisdiction formerly exercised by all the old courts 
 collectively, and administering both law and equity. 
 This new court was divided into two main parts, viz. : 
 (1) the Court of Appeal and (2) the High Court of 
 Justice, the latter being the court in which proceedings 
 were commenced, and the former the court in which 
 appeals from the latter were heard and determined. 
 
 By the Act of 1873, s. 5, it was enacted that all the 
 judges of the High Court should " have in all respects, 
 save as in this act is otherwise provided, equal power, 
 authority and jurisdiction;" and by the 25th section, 
 after various provisions assimilating in particular cases 
 the law to be administered by the new coiu't to that 
 prevailing in the old Court of Chancery, it was enacted 
 that, " generally in all matters not hereinbefore men- 
 tioned, in which there is any conflict or variance between 
 the rules of equity and the rules of the common law 
 with reference to the same matter, the rules of equity 
 shall prevail." 
 
 In consequence of these provisions, one of the most 
 useful purposes of the old Court of Chancery became no 
 longer necessary. Formerly, as has been above pointed 
 out, when a defendant in a common law action possessed 
 a defence consistent with " equity and good conscience," 
 but unavailable in a court of law, either because of 
 the harshness of the common law or because the com- 
 mon law courts could only say yea or nay, and could 
 not, like the Court of Chancery, nicely adjust the rival 
 claims and rights of the parties, he could apply to the 
 Court of Chancery for an injunction restraining the 
 plaintiff from continuing his action upon certain condi- 
 tions, and if in spite of this injunction the latter per-
 
 10 INTRODUCTORY. 
 
 sisted in doing so, then (altliougli the Court of Chancery 
 could not stop the action, for that was beyond its 
 powers) it could and did seize the plaintiff's person and 
 keep him in prison until he purged his contempt by 
 abandoning his action and submitting to the jurisdic- 
 tion of the Chancellor. 
 
 This branch of the jurisdiction is now of course at an 
 end, as the new High Court is not only a court of com- 
 mon law, but also a cornet of equity ; and by the 24th 
 section of the Act of 1873, after providing for equitable 
 claims and defences to have effect in all branches of the 
 new court, it was enacted that the new com-t, and every 
 judge thereof, " shall recognize and take notice of all 
 equitable estates, titles and rights, and all equitable 
 duties and liabilities appearing incidentally in the course 
 of any cause or matter, in the same manner in which 
 the Court of Chancery would have recognized and taken 
 notice of the same in any suit or proceeding duly insti- 
 tuted therein before the passing of this act;" and also, 
 that " no cause or other proceeding at any time pending 
 in the High Court of Justice or before the Court of 
 Appeal, shall be restrained by prohibition or injunction, 
 but every matter of equity on which an injunction 
 against the prosecution of any such cause or proceeding 
 might have been obtained if this act had not passed, 
 either unconditionally or on any terms or conditions, 
 may be relied on by way of defence thereto." 
 
 But although all the judges of the High Court were 
 given equal jurisdiction in law and in equity, yet for 
 the more convenient despatch of business the High 
 Court was divided into five divisions ({/), viz. : — 
 
 (1) The Chancery Division ; 
 
 (2) The Queen's Bench Division ; 
 
 (y) Jud. Act, lb73, B. 31.
 
 INTRODUCTORY. 11 
 
 (3) The Commou Picas Division ; 
 
 (4) The Exchequer Division, and 
 
 (5) The Probate, Divorce and Admiralty Division. 
 These divisions have, however, been since reduced to 
 
 three by the amalgamation of the Queen's Bench, 
 Common Pleas and Exchequer Divisions into one 
 division, called the Queen's Bench Division (//). To 
 each division certain specified judges of the High Court 
 are attached, but this does not prevent any judge from 
 sitting whenever required in a different division, or for 
 any judge of a different division from his own ; and any 
 judge may bo transferred by her Majesty under the 
 sign manual from one division to another (/) . All ordi- 
 nary actions may be commenced in any division of the 
 coui't ; so that the Chancery Division has now cogni- 
 zance of many matters which formerly belonged exclu- 
 sively to the courts of common law, and the (iueen's 
 Bench Division has cognizance of many matters which 
 formerly belonged exclusively to the old Court of Chan- 
 cery. The old exclusive and auxiliary jurisdiction has, 
 in fact, been abolished, and the concurrent alone re- 
 mains. 
 
 As however certain administrative machinery is re- 
 quisite in certain peculiar classes of actions and not in 
 others, such actions are still distributed among the three 
 divisions in the way most convenient. To the Chancery 
 Division there are assigned {k) — 
 
 (1) All causes and matters which were pending in the 
 
 old Court of Chancery on the 1st day of November, 
 1875. 
 
 (2) All causes and matters which have been or shall be 
 
 (/() Order in Council of Dec. (() Jud. Act, 1S73, s. 31. 
 
 1880. (/,•) lb. s. 34.
 
 12 INTRODUCTORY. 
 
 commenced since the 1st day of November, 1875, 
 under am/ Ad of Parliament icJierehij exclusive Jaris- 
 dicfion, in respect of such causes or matters has 
 been given to the old Court of Chancery or to any 
 judges or judge thereof, except appeals from county 
 courts. 
 (3) All causes and matters for any of the following pur- 
 poses : 
 
 (a) The administration of the estates of deceased 
 
 persons ; 
 
 (b) The dissolution of partnerships or the taking 
 
 of partnership or other accounts ; 
 
 (c) The redemption or foreclosure of mortgages ; 
 
 (d) The raising of portions or other charges on 
 
 land ; 
 
 (e) The sale and distribution of the proceeds of 
 
 property, subject to any lien or charge ; 
 
 (f ) The execution of trusts, charitable or private ; 
 
 (g) The rectification or setting aside or cancel- 
 
 lation of deeds or other written instruments ; 
 (h) The specific performance of contracts between 
 vendors and purchasers of real estates, in- 
 cluding contracts for leases ; 
 (i) The partition or sale of real estates ; 
 (j) The wardship of infants and the care of 
 infants' estates. 
 To the other divisions of the court are assigned all 
 causes pending in them on the 1st day of November, 
 1875, and all causes which would have been within 
 their respective jurisdictions if the new court had not 
 been created. There is, however, full power, as will be 
 seen hereafter, of transferring proceedings wrongly 
 commenced in one division, to tlic right one, and of
 
 INTRODUCTORY. 13 
 
 transferring proceedings rightly commenced in one 
 division, to another division, when on account of special 
 circumstances it is desirable to do so. 
 
 The business of the Chancery Division is carried on 
 by a staff of officers consisting of judges, masters of the 
 Supreme Coiu't, registrars, and chief clerks. 
 
 The judges consist at present of the Lord Chancellor 
 (who is president of the division), the Master of the 
 Rolls, two Vice-Chancellors, and two Justices. Although 
 these judges have such divers titles, that is only because 
 the present Master of the Rolls and the two present 
 Vice-Chancellors were appointed before the coming into 
 operation of the Judicature Acts. All future judges of 
 the division (except the president and possibly the M. R.) 
 will be simply designated "Justices" (/). 
 
 The duties of the other officers will fully appear here- 
 after, and it is sufficient to state in this place, that each 
 of the four senior ordinary judges (/. f., exclusive of the 
 president) of the division has three chief clerks attached 
 to him, to aid in the administrative business of his court, 
 and to exercise certain minor judicial functions. The 
 fifth or junior judge has no chief clerks, and his func- 
 tions are limited to hearing in court cases Avhich have 
 been transferred to him from the courts of the four 
 senior judges. 
 
 Owing to the complex nature of the causes assigned 
 to the Chancery Division, and to the rule laid down by 
 the Judicature Act, 1875, that where no other provision 
 
 (l) While this -work is passing Court of Appeal, and cease to be 
 
 tlirough the press the Lord Jus- one of the judges of the Chan- 
 
 tice James has died, and there is eery Division. If, however, this 
 
 a rumour that the Master of the should be so, it will make no 
 
 Bolls will be made president of the difference to the practice.
 
 14 INTRODL'CTOllY. 
 
 was made by that act, or the rules and orders annexed 
 thereto, the then present practice should remain in force, 
 the procedure of the Chancery Division, although as- 
 similated to that of the other divisions of the High 
 Court, still differs from it in many important particu- 
 lars; and, possessing an administrative machinery which 
 is altogether unknown in the other divisions, that 
 machinery is of coui'se carried on according to a pro- 
 cedure peculiar to the Chancery Division, and conse- 
 quently a separate and distinct account of the practice 
 in that division of the coui-t seems to be required, and 
 is intended to be fui'nished in the following pages. 
 
 Before, however, commencing to detail the procedure, 
 it is desirable that I should here point out the autho- 
 rities by which that procedure is regulated, which are 
 contained — 
 
 1. In certain statutes, particularly the Judicature 
 Acts, 1873 and 1870, and the Chancery Procedure Act, 
 1852. 
 
 2. In certain rules and orders wliich parliament has 
 from time to time empowered the judges to make or 
 alter. The most important of these are the Consoli- 
 dated Greneral Orders of 1860 (hereafter referred to as 
 Cons. Ords.) and the Rules of the Supreme Court, 1875 
 (hereafter referred to as R. S. C). 
 
 3. In judicial decisions e\4denced by the reports 
 which record them. These decisions sometimes relate 
 to the interpretation of statutes, rules, or orders, and 
 sometimes to points of practice left untouched by any 
 written authority. In the latter case, the judge fre- 
 quently takes the opinion of the officers of his court 
 most conversant with the particular procedure to which 
 the point relates by sending a written question to them.
 
 INTRODUCTORY. 15 
 
 wliich thoy answer in the form of a certificate. This 
 cei'tificato has no binding effect on tlic judge, and is 
 merely for his guidance. 
 
 Having now sketched very lightly tlio present rela- 
 tion of the Chancery Division to the other branches of 
 the court, I will pass on to the main object of this 
 Work, viz., a concise, but at the same time a practical, 
 account of the procedure observed in that division, pre- 
 mising that all proceedings in it are divided into two 
 principal classes, viz. (1) Actions and (2) Matters; the 
 former being proceedings commenced by writ, and — in 
 form, at least, — necessarily contentious, and seeking 
 relief against a third party ; and the latter being pro- 
 ceedings other than actions, or proceedings in actions, 
 and not necessarily contentious, either in form or fact. 
 
 An action is the ordinro'ij mode of obtaining relief in 
 the High Court. A matter is an e.vtraordinaDj pro- 
 ceeding, and is almost invariably instituted under the 
 provisions of some statute.
 
 Division I. 
 
 OF ACTIONS. 
 
 u.
 
 Peeltmixaet Synopsis. 
 
 SuB-Drr. I. — The "Weit of Suidions. 
 
 II. — The Defexdaxt's Peoceedixgs on Seevice of the 
 Weit. 
 
 III. — The Pleadings. 
 
 rV. — The Evidence. 
 
 Y. — The Teial of the Action. 
 
 YL. — Motion foe Judgiient. 
 
 VII. — The JrDGiiENT. 
 
 VIII. — Peoceedings in the Judges' CHAiCBESs under a 
 
 JUDGIIENT. 
 
 rX. — ^Peoceedixgs in the Chanceey Pay Office. 
 
 X. — FUETHEE CONSIDEEATION. 
 
 XI. — Inteelocutoey Applications.
 
 ( w ) 
 
 PEELIMINARY SYNOPSIS. 
 
 EvEKY action is commenced by a writ of summons, pre- 
 pared by the plaintiff, and calling, in the Queen's name, 
 on the defendant, to " enter an appearance " to it. This 
 writ is "issued," by being sealed either at the London 
 central office or a district registr}^, and must then be 
 served on the defendant, or, where he cannot be found 
 or is out of the jurisdiction, service may be dispensed 
 with, and certain notices or advertisements substituted 
 in its stead (r/) . 
 
 On service of the writ, the defendant either enters an 
 appearance by leaving a memorandum to that effect at 
 the central office or district registry, or neglects to ap- 
 pear; and in the latter case, in actions specially assigned 
 to the Chancery Division, the action goes on as if he 
 had appeared. If he appears, the defendant may in 
 ^certain cases bring in third parties, and may sometimes 
 interplead, which is practically allowing the plaintiff 
 and a third party to fight the matter out between 
 them (b). 
 
 The next step is the delivery of the pleadings (c), which 
 are written, or (where over ten folios in length) printed 
 statements of, (1) claim by the plaintiff, (2) defence by 
 the defendant, and (3) reply by the plaintiff. By these 
 pleadings, an " issue," or disagreement of some material 
 question or questions of fact, or of the law applicable to 
 the facts, is arrived at, or sometimes the disagreement is 
 
 («) Sub-div. I. (<■) Sub-div. III. 
 
 {h) Sub-div. II. 
 
 c2
 
 20 PRELIMINAKY SYNOPSIS. 
 
 both as to the facts alleged, and also to the law appli- 
 cable to them. 
 
 If either the plaintiff or defendant disagrees with his 
 adversary's view of the law, that is to say, if, admitting 
 the truth of the facts alleged by his adversary, he still 
 contends that these facts do not show a good case in law 
 — he " demurs," and in that case the objection — or 
 " demurrer," as it is called, — is argued in open court 
 before the judge, who either gives liis decision in favour 
 of the demurrer or overrules it. If there is no real dis- 
 pute as to the facts, the question of law raised by the 
 demurrer really decides the dispute between the parties, 
 and, judgment being moved pro forma, the action is 
 finished with the decision on the demurrer ; but very 
 often the facts are also disputed, and in that case, if the 
 demurrer is overruled, the case goes on as before, but if 
 it is upheld, leave must be obtained to amend the con- 
 demned pleading, by the addition of new facts sufficient 
 to make it a good statement of claim or defence. The 
 issues of fact are set down for "trial," either before a 
 judge alone, which is the most usual course, or before 
 a judge and jury, or before a judge and assessors, or 
 before an official or special referee, the counsel of each 
 party stating and arguing his case, and producing evi- 
 dence in support of it, either by means of witnesses ex- 
 amined uvd voce, or (by consent), by affidavit, and also 
 producing and reading his documentary evidence if 
 any {d). 
 
 Where the trial is before a judge alone, or a judge 
 and assessors, the judge usually delivers judgment at 
 once, or reserves it until a subsequent day. When the 
 
 {(l) Sub-divs, IV. and V.
 
 PRELlMIiNARY SYNOrslS. 21 
 
 trial is before a judge and jury, the latter return a ver- 
 dict as to the facts, and the judge either then delivers 
 judgment, or leaves the party in whose favour the issues 
 of fact have been found, to " move the court " for judg- 
 ment subsequently. 
 
 Where the trial is before a referee, he makes a report 
 to the court, which is in the natiu'e of the verdict of a 
 jury, stating in whose favour he finds the facts in dis- 
 pute, and upon this report, the party in whoso favour it 
 is made, subsequently moves for judgment (('). 
 
 Judgments are of two distinct classes in the Chancery 
 Division (./'). In one the whole matter in dispute is 
 decided and finally disposed of, either in favour of the 
 plaintiff or the defendant. Such judgments are those 
 arising out of claims for injunctions, specific perform- 
 ance of contracts, or other simple claims. 
 
 In the other class the judgment is merely preliminary 
 to certain other, more or less complicated, proceedings, 
 upon which the real litigation takes place. Such are 
 judgments in administration actions, partnership actions, 
 and the like. In these cases the pleadings rarely show 
 any issue of fact or law, and the judgment is seldom 
 opposed, as it merely consists of a declaration that an 
 estate ought to be administered or a partnership wound 
 up, or the like, together with directions that the judges' 
 chief clerk shall, in chambers, examine the accounts of 
 the trustees, or of the partners, make enquuies as to who 
 are interested in the estate as creditors, mortgagees, 
 legatees, or otherwise, and generally find out the exact 
 state of facts relating to the property in question in the 
 action. Such actions are really only brought into court 
 
 {c) Sub-div. VI. (/) Sulj-dlv. VII.
 
 22 PRELIMINARY SYNOPSIS. 
 
 in order that the judge may see that proper directions 
 are contained in the judgment, and as there are seldom 
 any issues of fact involved, there is seldom a trial of such 
 actions, but merely a motion for judgment, either for 
 default in delivering of a statement of defence, or on 
 admissions contained in the defence, if one be delivered. 
 In such cases evidence is rarely taken, both parties ad- 
 mitting that an administration must be had, or a disso- 
 lution of partnership decreed, and consequently they are 
 called " short actions," and one day in every week is 
 appropriated to them by each of the four senior judges. 
 Such actions usually consume only a few minutes each. 
 
 When, however, the accounts and enquiries come to be 
 taken in chambers (^if), a good deal of ligitation may be 
 anticipated, and this is usually conducted by the solicitors 
 of the respective parties, (indeed in some of the judges' 
 chambers counsel are not heard before the chief clerks,) 
 unless the point is of importance, and then it is ad- 
 journed before the judge himself in his chambers, in 
 most of which counsel may appear, if thought necessary. 
 
 Frequently in the course of an action money or stock 
 or securities have to be paid or transferred into or de- 
 posited in court, and this is done thi'ough the medium 
 of an official called the paymaster-general (//). 
 
 When the chief clerk has examined all the accounts, 
 and made all the enquiiies directed by the judgment, he 
 makes a certificate of the result to the judge, and if any 
 question of law arises on that certificate, the case is again 
 set down to come before the court on " further considera- 
 tion "(/). 
 
 Sometimes the chief clerk's certificate is such that no 
 
 iff) Sub-div. VIII. (<) Sub-div. X. 
 
 (A) Sub-div. IX.
 
 PRELIMINARY SYNOPSIS. 23 
 
 point of law arises, but frequently (particularly in ac- 
 tions for the administration of the estates of deceased 
 persons) such points do arise. For instance, from tlio 
 chief clerk's certificate that the deceased did not leavo 
 sufficient personal estate to pay his debts, but left plenty 
 of real estate, a question may at once arise whether in 
 the particular construction of his will some part of that 
 real estate is not exempt from contributing towards pay- 
 ment of the debts ; and such a point would have to be 
 decided on further consideration, and the question as to 
 the incidence of tlie costs is also dealt Avith at this stage. 
 But in addition to these ordinary steps in an action, 
 there are certain other proceedings called interlocutory 
 applications (/■), which are sometimes resorted to between 
 the issue of the writ and the delivery of the judgment. 
 Such are made either (1) by motion in open court*^ 
 (2) by petition heard in open court, or (3) by summonsl 
 in the judges' chambers. A motion is an application! 
 made to the court, either by counsel or by the suitor in 
 person ; and where it is interlocutory, is made for the 
 purpose of obtaining some temporary but immediate 
 protection, pending the trial of the action. Thus, in 
 cases where an injunction is sought to protect property 
 from injury, it is obvious that before the trial of the ac- 
 tion the property might be irretrievably damaged, and 
 therefore the plaintiff in such a case may "move" for 
 an interlocutory injunction directly he commeiices his 
 action. And so a receiver may be moved for, where 
 property is likely to be made away with, or requires to 
 be managed. Motions are either brought on c.r parte 
 without notice to the other side, or after two days' notice 
 given to the other side. 
 
 (/,) Sub-div. XI.
 
 24 I'RELIMIXARY SYNOPSIS. 
 
 Petitions are usually made use of in administration 
 actions pending tlie enquiries in chambers, and are for 
 the purpose of obtaining allowances, investment of funds, 
 and the like. They are ^NTitten statements of facts, and 
 are heard within a week or ten days of being filed. 
 
 Summonses are perhaps the commonest form of in- 
 terlocutory applications, being used for the purpose of 
 raising all kinds of minor and incidental points. For 
 instance, the amendment of pleadings, the question 
 whether a pleading is emban'assing or not, applications 
 for further time to deliver a pleading or to strike out 
 interrogatories, and the like. They are heard before 
 one of the judges' chief clerks in chambers in the first 
 instance, but may be adjourned at the request of either 
 party before the judge himself in chambers, and he may 
 adjourn them into court for formal argument if they 
 raise points of importance. 
 
 There are also certain motions and petitions called 
 " motions and petitions of course." These are never 
 argued, but are merely formal documents, requiring 
 either counsel's signature or that of the judge. 
 
 All these matters will be found treated of in detail 
 in the first division of this "Work. The method of en- 
 forcing a judgment or an order (which is carried out in 
 various ways, from imprisonment and sequestration of 
 property down to a distraint of goods), and the mode 
 of taxing the costs incurred by a successful litigant, 
 and which have been ordered to be borne by his oppo- 
 nent, and the procedure on appeal from a judgment or 
 order, are treated of in the third division of this Book.
 
 ( 25 ) 
 
 Sub-division I. 
 The Writ of Summons. 
 
 CirArxER I.— The General Form and Nature of the Writ. 
 Chapter II. — The Parties! 
 
 Section l.—rarticular Persons ivith rerjardio ivJwin (he General 
 Rule as to I'arties is modijkd. 
 SUBSEC. 1. — The Crown. 
 
 'J. — Foreign Governments. 
 3. — Corporations. 
 4. — Partnership Firms. 
 5. — Aliens. 
 G. — Married Women, 
 7. — Infants. 
 8. — Lunatics. 
 9. — Paupers. 
 Section 2. — Particular Classes of Case with regard to which 
 
 tlie General Rule as to Parties is inodijicd. 
 Section 3. — Change of Parties hg Death, ^c. 
 Chapter III. — Indorsement of the Writ. 
 Chapter IV. — Issuing of the AVrit. 
 Chapter V. — Service of the AVrit. 
 
 Section 1. — Within the Jurisdiction. 
 Section 2. — Out of the Jurisdiction. 
 
 CHAPTER I. 
 
 THE GE^^ERA], FORM AND NATURE OF A AVRIT OF 
 SUMMONS. 
 
 As I said before, every action in the High Court of 
 Justice must be commenced by the issue of a writ of 
 summons («), which is in form a command by the sove- 
 reign to the defendant, to appear and answer the phiiii- 
 tiff's claim on pain of judgment being given against 
 
 («) R. S. C, Ord. II. r. 1.
 
 26 THE WRIT OF SUMMONS. 
 
 him in liis absence. The following is an example of a 
 
 writ of summons, from a perusal of which its nature will 
 
 be at once understood. 
 
 isso. J. No. 100. 
 In the Higli Court of Justice. 
 Chanceiy Division. 
 
 Birmingham District Registry. 
 V.-C. Hall. 
 
 Between Thomas Jones Plaintiff, 
 
 and 
 
 William Smith Defendant. 
 
 Victoria, by the grace of God of Great Britain and Ireland Queen, 
 Defender of the Faith, To William Smith, of No. 1100, New Street, 
 Bii-mingham, in the county of "Warwick. 
 
 We command you that within eight days after service of this writ 
 on you, inclusive of the day of such service, you do cause an appear- 
 ance to be entered for you in the Chancery Division of our High Coiu't 
 of Justice in an action at the suit of Thomas Jones ; and take notice, 
 that in default of your doing so, the plaintiff may proceed therein, 
 and judgment may be given in your absence. Witness, Sec. 
 
 N.B. — This writ is to be served within twelve calendar months from 
 the date thereof, or, if renewed, from the date of such renewal, in- 
 cluding the day of such date and not afterwards. 
 
 The defendant may appear hereto by entering an appearance either 
 personally, or by solicitor, at the Central Office, Royal Coiirts of Jus- 
 tice, l_or at the office at where issued out of a District Registry.'] 
 
 On the back of this writ is indorsed a short statement 
 of the plaintiff's claim, as, for example, the following : — 
 
 The plaintiff's claim is to have an account taken of the partnership 
 dealings between the plaintiff and defendant, under articles of part- 
 nership dated the 1st day of January, 1875, and to have the affairs 
 of the partnership wound up. And for an injunction and (if neces- 
 sary) a receiver. 
 
 If any party sues or is sued in a representative 
 capacity, this indorsement must state the fact {h), for 
 instance, thus : — 
 
 The plaintiff sues as executor of A. B., and the defendant is sued 
 as administrator of C. D. 
 
 [b] R. S. C, Ord. III. r. 4.
 
 GENERAL YORSl AND NATURE OF. 27 
 
 Beneath this claim must be indorsed the following 
 statement : — 
 
 This writ was issued by Chai-los Roberts, of No. oOO, New Street, 
 Birmingham, in the county of Warwick, solicitor for the said plaintiff, 
 who resides at No. GIO, Temple Row, Birmingham, aforesaid. 
 
 If the defendant resides outside the district registry, 
 an address for service must be added within three miles 
 jof_Temple Bar^ 
 
 From a careful perusal of this model wiit, it will be 
 seen that a great portion of it is purely formal. The 
 first line consists of the year in Avhich the writ is issued, 
 the first letter of the plaintiff's name, and a number 
 which is attached to it by the officer who seals it (as we 
 shall see hereafter in Chapter IV. of this sub-division). 
 
 Then comes the name of the court and division ; and if 
 the writ be issued in the country, and not in London, 
 the name of the district registry out of which it is 
 issued. The name of the judge, to whose court the 
 plaintiff wishes the action to be assigned, comes next ; 
 but owing to there being no administrative staff of chief 
 clerks attached to the junior Chancery judge for the time 
 being, it is not permitted to assign an action to his 
 court, and he only takes actions for hearing in court, 
 v/hich the other judges cannot hear on account of press 
 of work. The junior judge at present is Mr. Justice 
 Kay. Next comes a statement of the parties to the 
 action, of which I shall treat separately in the next 
 chapter. 
 
 The parties are followed by the sovereign's command, 
 which is tested or witnessed in form (but of course not 
 in reality) by the Lord Chancellor for the time being, 
 or, in default of a Lord Chancellor, by the Lord Chief 
 Justice of England for the time being. 
 
 The memoranda as to service and appearance describe
 
 28 THE ^VR1T OF SUMMOXS. 
 
 themselves, but will be further alluded to hereafter 
 under the chapters relating to "issuing of the wiit" 
 and " entering an appearance" respectively. 
 
 We now come to the indorsements. The indorsement 
 of claim being an essential part of the vncit, and varying 
 according to the special circumstances of each case, 
 requires to be considered somewhat minutely, and will 
 be treated of in Chapter III. 
 
 "With regard to the indorsement of the statement by 
 whom the writ was issued, the example shows the 
 simplest form of it ; but where an agent as well as a 
 solicitor is employed, the names and addresses of both 
 must be given ; and where the office of the agent or 
 solicitor, or abode of the plaintiff, is not within three 
 miles of the central office, or within the district registry, 
 as the case may be, an "address for service" must be 
 also given within those limits (e). It should also be 
 observed, that the defendant may make demand in 
 writing calling on the solicitor, whose name is in- 
 dorsed, to declare forthwith whether the writ has been 
 issued with his authority, and if he declares that it has 
 not, all proceedings will be stayed until leave be ob- 
 tained from a judge to pursue the action (d). 
 
 It should be here observed that if the vrvit is to be 
 served out of the jurisdiction of the court, the form is 
 sHghtly different to that given above, in the commanding 
 part, the form being — 
 
 We command you William Smith that within [/i«r iiiso'l the number 
 of dayn directed h>j the court or judge ordering the service or uotici^ after 
 eervice of this Avrit [or notice of this writ, as the case may be"], on you, 
 &c., as in the fonn already given. 
 
 Having described the form of the writ, it only remains 
 to say that it must be prepared by the plaintiff or his 
 
 (f) R. S. C, Old. IV. [d) R. S. C, Ord. VII. r. 1.
 
 GENERAL FORM AND NATURE OF. 29 
 
 solicitor, and may be written or printed, or partly 
 written and partly printed, on cream wove machine 
 drawing foolscap folio paper, 19 lbs. per mill ream or 
 tliereabouts, with an inner margin about three quarters 
 of an inch wide, and an outer margin about two inches 
 and a half wide (e) . 
 
 In practice, the plaintiff's solicitor buys from a law 
 stationer the formal parts of the writ printed on proper 
 paper, and fills this form up in writing, with the names 
 of the plaintiff and defendant, the claim, &c. This 
 writ when prepared is sealed by the proper officer as 
 described in Chapter IV., and is then said to be issued, 
 and then and not till then becomes an authoritative 
 summons. 
 
 With regard to mistakes appearing in the parties or 
 indorsement of claim after issue of the writ, the practice 
 is treated of in the chapters on those subjects re- 
 spectively. With regard to other mistakes it may be 
 here mentioned that at any stage of the proceedings 
 the court or a judge may allow the plaintiff to amend 
 the writ in such manner and upon such terms as may 
 seem just (./). Before the defence is delivered, the ap- 
 plication is made by motion or petition of course ; but 
 after defence, if the defendants oppose the amend- 
 ment, the application must be by summons {(/) . Where 
 notice of trial has been given or notice of an interlo- 
 cutory motion, the application should be by summons, 
 which should state that it is without prejudice to the 
 notice, otherwise the notice will be taken as waived (//). 
 
 (e) E. S. C, Ord. V. r. o; L. R., 2 Ch. D. 221. 
 Ord. LVI. r. 2. {{/) Marriott v. Jfarrlott, 2G W. 
 
 (/) R.S.C.Ord. XXVII.r. 2; E. 41G. 
 Caldwell v. Fagham Harbour Co., (//) Daniell'sronns, 3rded.l27.
 
 30 THE WRIT OF SU.NOrONS. 
 
 CHAPTER II. 
 
 THE PARTIES. 
 
 General rule. It may be stated as a general rule, 
 subject, however, to considerable exceptions, that (1) all 
 persons, wliatever their sort or condition, may sue and be 
 sued in any division of the High Court, and (2) that all 
 persons who may have in the object of an action in the 
 Chancery Division an apparent interest, or against whom 
 the decree sought for will establish a right, or upon 
 whom it wUl impose a duty, ought to be made parties. 
 
 Let us first enquire whether there are any and what 
 sorts or conditions of persons with regard to whom the 
 right of suing, or the liahility of being sued, is subject to 
 modification, and afterwards we can proceed to the more 
 general consideration of what persons o^igltt to he joined 
 as parties to an action. 
 
 Section 1. 
 
 Particular Persons Kith regard to whom the General Pule 
 is modified. 
 
 SuBSEC. 1. — The Crown. 
 It is a rule that the sovereign may be a plaintiff in a 
 
 Chancery action, either in her private capacity as an 
 individual (a), or in her capacity as representing the 
 public generally {h) ; but (except by petition of right the 
 consideration of which does not come within the scope of 
 this Work), the sovereign can only be made a defendant 
 to an action where her rights are merely incidentally 
 
 («) Du Plcssis V. Att.-Gc))., 1 (i) Dan. 13. 
 
 Bro. P. C. ed. Toml. 41.3.
 
 THE PARTIES. 31 
 
 involved, and no dii'eot relief is claimed against her {c). 
 Whenever the sovereign is either plaintiff or defendant, 
 she never sues or is sued in person but by her Attorney- 
 General, or, when that office is vacant, by her Solicitor- 
 General {(I) 
 
 Thus, in the case of land claimed by the sovereign by 
 reason of forfeitm-e, an action will lie by hor for dis- 
 covery of facts material for enforcing the forfeiture (c). 
 Or, again, as head of the Church, or as parens patrice in 
 matters affecting charities, and in certain cases respect- 
 ing the property of idiots and lunatics, or where property 
 is entrusted to trustees for public purposes, or in cases 
 of public nuisance, and also under certain Acts of Par- 
 liament (,/'), it is a privilege of the sovereign by her 
 Attorney- General to intervene for the purpose of assert- 
 ing the right and interest of the public. It is impossible 
 in a small Work of this description to go fully into the 
 cases in which the sovereign has the right to be a plain- 
 tiff, and indeed they rather concern the general rules of 
 equity than the rules which govern procedure. 
 
 As an instance of the sovereign being joined as de- 
 fendant, may be mentioned the case where there is no I 
 heir-at-law of a deceased intestate, whose real property 1 
 is in litigation {g) . 
 
 A suit by the sovereign was formerly called an in- 
 formation, andthe Attorney- General was termed the in- 
 formant, because he was supposed to have been informed 
 of the wrong complained of by some third party. This 
 third party was called a relate. The terms infonnation 
 
 (c) Dan. 125; Ilecve v. Alt.- would lie now. 
 
 Gen., 2 Atk. 223. (/) As, for instance, the Mar- 
 
 {cl) Dan. 125. riage Acts, 4 Geo. 4, c. 70, and 
 
 {e) Die Plessisy. Att. -Gen., swp.; 19 & 20 Vict. c. ll'J. 
 
 but query whether sucli an action (//) Dan. 125.
 
 32 THE WRIT OF SUMMONS. 
 
 or informant are, however, now done away with, the suit 
 heing now called an aotion, and the Attorney- General 
 j)laintiff, as in any other cause (//). 
 
 Where, as is usually the case, the action concerns the 
 sovereign only in her representative capacity, the 
 Attorney- General is really set in motion by a relator, 
 and in that case the relator must he named in the writ 
 for the purpose of answering costs in case the sovereign 
 should he defeated (?), the crown being never liable for 
 costs. 
 
 Sometimes when the relator has also a private in- 
 terest, beyond and above that of the public generally, 
 he may be joined not only as relator but as plaintiff. 
 
 A relator, as such, has no right to take any step in 
 an information without the sanction of the Attorney- 
 General, but where he is also plaintiff, he may of course 
 conduct his own case as plaintiff. 
 
 Where an action by the Attorney-General imme- 
 diately affects the rights of the crown he may proceed 
 mcvo motii without any relator (/.•) ; but even in such 
 cases a relator is frequently named ex gratia, and to give 
 the defendant a security for his costs. Even in charity 
 and other public cases, it would seem to be doubtful 
 whether a relator is absolutely necessary (/). 
 
 As the relator is named for the purpose of answering 
 costs, it follows that he must be a person of substance 
 and reasonably capable of paying them, and unless he 
 be so all further proceedings will be stayed upon the 
 application of the defendant (which may be made by 
 
 {h) K. S. C, Ord. I. r. 1 ; Att.- (/.) Dan. 13. 
 
 Gen. V. Shrewsbury Bridge Co., {I) Be Bedford Charity, 2 Sw. 
 
 W.N. 1880, p. 23. 520; but see Att.-Gen. v. Og- 
 
 (i) Att.-Gen. v. Smart, 1 Vcs. lander, iVes. jun. 24G ; amdi Att.- 
 
 sen. 72; Att.-Gen. v. Barker, 3 Gen.Y. Middleton,2YGS.se:n.Z'i,l. 
 Atk. 579.
 
 THE PARTIES. 33 
 
 summons in chambers), until a responsible relator is ap- 
 pointed (ill). For the same reason neither a feme covert, 
 an infant, nor an idiot, can be a relator. 
 
 Before getting the writ sealed and issued in an action 
 in the nature of an information, a written authority, 
 signed by the person named as relator, must be pro- 
 duced to the officer sealing the same, and the consent of 
 the Attorney-General must also be obtained. This is 
 done by leaving at his chambers a copy of the proposed 
 \vrit and of the proposed statement of claim, together 
 with a certificate of the counsel who has settled the 
 statement of claim, that the action is one which is pro- 
 per for the sanction of the Attorney-General, and also a 
 certificate of the solicitor for the relator, that the latter 
 is a proper person to be relator, and is able to pay costs, 
 and also a certificate that the copy statement of claim is 
 a true copy of the draft as settled by counsel. Although 
 a relator is named for the purpose of being answerable 
 to the defendant for costs, yet where property is in 
 question (as in cases regarding charities), he will be al- 
 lowed his costs out of the property as between solicitor 
 and client, where he has acted properly and for the 
 benefit of the property in question («). 
 
 SuBSEC. 2. — Foreign GoveDimcnts. 
 
 The sovereign power of a foreign state (whether 
 emperor, king or republic) may sue, either on his own 
 behalf or on behalf of his subjects (o), in respect of his 
 or their private rights ; but he cannot sue in respect of 
 
 (w) Ait. -Gen. v. Tijkr, 2 Ed. 303; Moggvidgc v. ThackwcU, 13 
 
 230; Att.-Geii. v. Knujht, 3 M. Vcs. 41G. 
 
 & C. 154. (o) Ilulklt V. King of Spahi, 2 
 
 («) Att.-Gcn. V. Ken; o Bea. Bli., N. S. CO. 
 
 V. D
 
 34 THE WRIT OF SUMMONS. 
 
 his own prerogatives {h). Unlike the British sovereign, 
 such persons must sue in their recognized official names, 
 and not by an attorney, ambassador, or other officer. 
 
 The government of a colony is in the same position 
 with regard to suing as a foreign government (c). 
 
 Like the British sovereign, foreign sovereigns or 
 states cannot be made original defendants to an action 
 where relief is sought against them, as the court has no 
 jurisdiction over them (r/) ; but if they themselves com- 
 mence an action, they ipso facto submit themselves to 
 the jurisdiction, and are liable to be made defendants to 
 a counter-claim or cross action {c), and are then liable 
 to answer interrogatories on oath (,/). 
 
 Where, however, the king of a foreign state is also 
 an English subject, he may be sued in the latter cha- 
 racter (g). 
 
 Where no active relief is sought agaiust a foreign 
 sovereign, but he is interested in the subject-matter of 
 a suit, he may (as in the case of the British sovereign) 
 be made a defendant, but this of course does not compel 
 him to come in, but only enables him to do so and be 
 heard if he likes (//). 
 
 SuBSEC. 3. — Corporations. 
 The power to sue and the liability to be sued in the_ 
 _corporate name is inseparable from all corporations, 
 
 [h) JEmperor of Austria v. Daij, (/) lb. and JCinff of Spain v. 
 
 3 De G., F. & J. 217. IMlett, 7 Bli., N. S. 359 ; Dide 
 
 (c) Foni V. Zofd BaU'unore, 1 of Bedford v. Euig of Hanover, 
 Ves. S. 444. sup. ; Priokau v. United States of 
 
 (d) Duke of Bedford v. liinff of America, L. R., 2 Eq. 659. 
 Hanover, 2 H. L. C. 1 ; Stroiisherg {g) Dule of Bedford v. King of 
 V. Eepuhlic of Costa Rica, Times Hanover, sup. 
 
 Ileport, Nov. 16th, 1880. (A) Gladstone v. Muslims Beg, 9 
 
 {(■) Hullett V. King of Spain, Jur., N. S. 71 ; Smith v. Wegiie- 
 sup. /(•/;, L. R., 8 Eq. 198.
 
 THE PARTIES. 35 
 
 whether solo or aggregate (/) ; but a corporation solo 
 must say in tlie writ in what capacity he sues (Ji) . 
 
 A foreign corporation is in the same position as an 
 Englisli one, but must (if it bo disputed) prove its in- 
 corporation (/), 
 
 Closely allied to corporations are certain companies 
 created by act of parliament or charter, who, although 
 not incorporated, are thereby allowed to sue and be sued 
 by their public officer {iii). 
 
 The officers of a corporation might formerly be joined 
 as defendants for the purpose of obtaining discovery on 
 oath (a corporation answering interrogatories only u.nder 
 their seal), but it is now permissible to interrogate an 
 officer without making him a party (;;). 
 
 SuBSEC. 4. — Partnorslttp Firms. 
 
 Although not corporate bodies, any two or more per- 
 sons claiming or being liable as partners may sue and 
 be sued in the name of their firm ; but any other party 
 may in that case apply, by summons, to a judge for a 
 statement of the names of the persons w^ho constitute 
 tlie firm, to be furnislied in suoli manner, and verified 
 on oath or otherwise as the judge may direct (o). And 
 any one person carrying on business in tlio name of a 
 firm, apparcnthj consisting of more than one person, may 
 he sued in the firm's name (;j) . 
 
 Where tlie firm are plaintiffs, they or their solicitors 
 must on demand in writing, by or on behalf of any 
 defendant, forthwith declare the names and places of 
 
 (i) Dan. 23, 132. {m) Dan. 26. 
 
 [k) lb. 24. («) R. S. C, Ord. XXXI. r. 4. 
 
 (/) Dutch IF. I. Co. V. Yiin (o) R. S. C, Ord. XVI. r. 10. 
 
 Moyaes, 2 Ld. Ray. 1335. (/>) lb. r. 10a.
 
 36 THE WRIT OF SUMMONS. 
 
 residence of all the persons constituting the firm, and 
 in default, the action may be stayed by a judge on ap- 
 plication by summons in chambers (^7). 
 
 It must, however, be borne in mind in suing a firm, 
 that it can only be sued n-Jicn at the time of the action it 
 consists of the same individual partners as it did at the date 
 ivhen the cause of action first arose (r). 
 
 SuBSEC. 5. — Aliens. 
 
 An alien friend may sue and be sued like an English 
 subject (s), but is liable, like every plaintiff who resides 
 out of the jurisdiction, to be called upon to give security:- 
 for costs {t). An alien enemy, or a person residing in 
 the country of an enemy without the Queen's licence, 
 cannot sue during hostilities (»), nor afterwards in re- 
 spect of any contract entered into during the con- 
 tinuance of the war, as such contracts are void {x). 
 Where, however, one foreigner sues another foreigner, 
 the court is very chary of granting a writ of ne exeat 
 regno (//). 
 
 Subs EC, 6. — Married Women. 
 As a general rule, where a husband and wife have a 
 common interest in a property (as, for instance, where 
 the action is in respect of fee simple property devised to 
 the wife), the husband must be joined with hor in what- 
 ever character she appears [z). But where she appears 
 
 {q) E. S. C, Ord. VII. r. 2. {u) Dan. 49. 
 
 ()•) Ex parte BlainCy L. R., 12 [x) Ex parte Boussmalcer, 13 
 
 Ch. Div. 522. Ves. 71. 
 
 (.s) Dan. 28. (y) Lc Carrkrc v. Be Colomie, 4 
 
 (t) Fox V. Bleu; 5 Mad. 147 ; Ves. 58. 
 
 Kerry. Gillespie, 7Bea. 267; Bar- (;) BearCnmre v. Gregory, 2 H. 
 
 tington v. Begnolds, 6 W. E. 307. & M. 491.
 
 THE PARTIES. 37 
 
 as plaintiff, and lias an interest in tlio subject-matter of 
 tlic suit conflicting with, that of her husband, or where 
 she institutes proceedings to recover property settled to 
 her separate use, in which her husband has no interest, 
 she must sue "jpy the intervention of a person called 
 " her next friend," who, like the relator in actions at 
 the suit of the Crown, undertakes the responsibility of 
 answering costs in case of her defeat (a married woman 
 being unable to bind herself to answer costs personally), 
 and the husband must then be made a defendant (a) . ^ 
 Suing without a next Friend. The above 
 general rule is, however, subject to certain exceptions ; 
 viz., that the wife may sue in her own name and with- 
 out either a next friend and without joinder of her hus- 
 band with her as co-plaintiff, or may be sued without 
 joinder of her husband as co-defendant ; (1) where the 
 husband is civill}^ dead ; or (2) is undergoing sentence of 
 penal servitude or transportation ; or (3) after she is judi- 
 cially separated ; or (4) after she has obtained a protec- 
 tion order under 20 & 21 Yict. c. 8-5 ; or (5) where her 
 husband is an alien enemy ; or (G) where she sues for 
 property belonging to her by virtue of the Married 
 Women's Property Act, 1870, or is sued for debts con- 
 tracted before marriage, and for which under the same 
 act, and the Amending Act of 1874, the husband is not 
 liable ; or (7) in any case where she is able to obtain the 
 leave of the court or a judge to sue or defend by herself 
 and without a next friend, and either with or without 
 giving such security for costs as the court or judge may 
 require {b) ; or (8) where she is named as defendant, and 
 
 {a) liohcrts v. Ecuns, L. R., 7 {h) R. S. C, Ord. XVI. r. 8; 
 
 Ch. D. 8oO. MarUma v. Mann, W. N. 18S0,
 
 •38 THE WRIT OF SUMMONS, 
 
 her liusband is plaintiff, in whicli case, of course, he 
 cannot be a co-defendantA 
 
 Next Friend. Although when a married woman 
 sues without joinder of her husband as co-plaintiff, she 
 usually sues by her next friend, the latter cannot com- 
 mence the action without her consent ; and in case he 
 does so, she may apply to the court by motion, to have 
 the action dismissed with costs against him. 
 
 As the next friend is a kind of surety for costs, he 
 must (like a relator) be a person of substance, and if he 
 should be a " man of straw," the court vdll at any stage 
 of the action stay all proceedings until security for costs 
 is given (c). 
 
 For similar reasons, and to prevent a woman using 
 the name of a next friend Avithout authority, the latter 
 must sign a ^vritten authority to the soHcitor to use his 
 name, which must be filed when the writ is issued (d). 
 
 A next friend may (in the discretion of the court or a 
 judge) be changed diiring a suit, proper provisions being 
 made with regard to the defendant's costs (c) ; and on 
 the death of a next friend, a new one will be appointed ; 
 and in case the plaintiff neglects to apply, the defendant 
 may get an order calling on her to do so within a 
 certain time, in default of which the action will be dis- 
 missed (/'). 
 
 SuBSEC. 7. — Infants. 
 The cases in which an infant can claim relief, or be a 
 party against whom relief can be claimed, will be foimd 
 
 (c) Dan.lOi; Martanav. 3fa)i)i, (c) Jones v. Fawcett, 1 Phil. 
 
 L. E., 14 Ch. D. 419. 278; raync v. Little, 14 Eeav. 
 
 {d) 15 & 16 Vict. c. 86, s. 11 ; 617 ; and 16 ib. 563. 
 
 and R. S. C, Ord. XVI. r. 13. (/) Barlcc v. Barlcc, 1 S. & S. 
 
 ^s^kii'^cc^Y- 
 
 100.
 
 THE rARTIES. 39 
 
 discussed in the various worivs treating of tlie law ad- 
 ministered by the court. In a work treating of the 
 23)'ocedure of the coui't, it sufSces to say that an infant i 
 plaintiff cannot sue in person, but only byjais nextj 
 friend (,/'), and ho defends byhis guarSian rtrf ^i'icmJji)J^ 
 
 Next Friend. With regard to tTie next friend of 
 an infant, the rule of the court is very different to that 
 which prevails in reference to the next friend of a 
 married woman, for, as we have seen, the latter cannot 
 commence an action in the name of a married woman 
 without her authority, whereas, in the case of an infant, 
 any person can commence an action in his name as his 
 next friend, even though he be no relative, and the 
 action is commenced against the wish of the infant's 
 parents (//), 
 
 Actions improperly brought in the Names of 
 Infants. Such a power as this of course requires to 
 be carefully watched, in order to prevent its abuse by 
 unscrupulous practitioners who might commence actions 
 in the names of infants merely in order to make busi- 
 ness for themselves ; and, accordingly, the court will, on 
 the application of the defendant (/), or of a third person 
 acting ^;;-o tern, as a next friend of an infant plaintiff (/.), 
 order the removal of a next friend whoso interest ap- 
 pears to be adverse to that of the infant (/), or who is 
 a relative, clerk or nominee of the solicitor for the 
 plaintiff (/»), and will substitute a new one ; and, on the 
 
 (/) R. S. C, Ord. XVI. r. 8. .583 ; Sale v. Sah; ib. ')S6. 
 
 \ij) Ib. {k) Guy V. Gmj, 2 Bca. 460 ; 
 
 [h] Andrews v. Cradoclc, Prcc. To use i/ v. Groves, 11 W. R. 252. 
 
 Ch. 37G ; Zcwla v. ^'ubbx, L. K., (/) Gee v. Gee, 12 W. E. 187. 
 
 8 Ch. D. 591. {ill) Sandfordv. Saudfvrd, 9 Jul-. 
 
 (i) Fox V. SaiccrJirop, 1 Bea. 'iDH.
 
 40 THE WRIT OF SUMMONS. 
 
 like application, will order an inquiry in chambers 
 whetlier it is for the benefit of the infant that such an 
 action should be proceeded with, or whether it has been 
 instituted from improper motives; and if the result of 
 such inquiry is unfavourable to the next friend, the 
 action will be dismissed against him with costs, or stayed 
 as may seem desirable («). 
 
 Next Friend of Infant need not be a Person 
 of Substance. Tlie office of next friend to an infant 
 differs in another respect from that of the next friend 
 to a married woman, viz., that the court does not insist 
 on his being a person of substance ; for otherwise, where 
 the infant or his relatives were poor, he might be de- 
 prived of his rights (o). 
 
 Several Actions for same Cause. It occasion- 
 ally happens that more than one action is brought in 
 an infant's name for the same relief by different next 
 friends. In such a ease an inquiry will be directed as 
 to which should be proceeded with, and the others will 
 be stayed (|?) ; but if it is obvious which action is the most 
 beneficial without the necessity of an inquiry, the 
 action may be stayed at once {q). In general, other 
 things being equal, the action first commenced will be 
 the one allowed to be continued, and the others will be 
 stayed (r). 
 
 Removal of next Friend. A next friend may 
 be removed (on summons or motion suj)ported by affi- 
 davit, notice being of course given to the defendant) 
 
 («) Fozv. Siiurrkrop, su]).; Sale (q) Staniland v. Staiiiland, M. 
 
 V. Sale, sup. ; Giuj v. Guy, sup. E., 21st January, 1864 ; Harris 
 
 (o) Dan. 73. v. Harris, 10 W. R. 31 ; Eovjon 
 
 [p) Mortimcrv. West, 1 Sw. 358; v. Kcmjon, 35 Bea. 300. 
 
 Virtue V. Miller, 19 W. R. 40G. (;•) Compbdl v. Campbell, 2 M. 
 
 & C. 30.
 
 THE r.VRTIES. 41 
 
 where it is desirable to substitute a nearer relative (.s), 
 and a fortiori where the next friend has been guilty of 
 misconduct {t) . A next friend may also by leave of the 
 coui't (but not otherwise) retire, but he will generally 
 be ordered to give security for costs already incurred (/^). 
 
 No next Friend. Where an action is brought in 
 an infant's name without a next friend (r), the de- 
 fendant may move to dismiss it with costs against the 
 solicitor, and where the next friend dies or is removed, 
 the defendant may move to have a new one appointed {.i). 
 
 When an infant plaintiff comes of age penderdc lite, 
 he may abandon the action and either have it dis- 
 missed with costs against himself, or may refrain from 
 taking any step, in which case the defendant may have 
 it dismissed mthout costs ; or the infant may adopt and 
 continue it, in which case he becomes liable for costs 
 ah initio (//). 
 
 Infant Defendants. Infants are made defendants 
 in their own names, and therefore no more need be said 
 here concerning the appointment of guardians ad litem, 
 which will come more fitly under consideration when 
 we come to treat of the defendant's appearance to the 
 writ. 
 
 SuBSEC. 8. — Lunatics and Persons of Unsound Mind. 
 
 Lunatics may be divided into two classes; (1) luna- 
 tics so found by inquisition, and (2) imbeciles who 
 without being lunatics so found by inquisition, are yet 
 in reality unable to manage their own affairs. 
 
 (*) Jf'oo/fv. remhcrto)), L. E., 59G. 
 
 6 Ch. D. 19. {>i) Ilayncs' Cli. V. ;3r„S. 
 
 (0 Russell y. Sharp, 1 J. & AV. (r) Cox v. TFrir/li(, 9 Jur. 981. 
 
 482; Towsc!/v. Grores, 11 W.Il. {.v) Daii. Ch. Tv. 7G. 
 
 252 ; Lander v. IngcnoU, 4 Ha. (y) lb.
 
 42 THE WRIT OF SUMMONS. 
 
 Lunatic so found. A lunatic so found by inqui- 
 sition becomes thereby a kind of ward, and under the 
 protection of the Lord Chancellor, who as keeper of the 
 sovereign's conscience performs his office of parens 
 patn'cc ; and although the Chancellor appoints in every 
 such case persons called committees to manage the estate, 
 and look after the person, of the lunatic, yet the com- 
 mittees cannot act in extraordinary matters without the 
 leave of the Chancellor or the Lords Justices of Appeal. 
 It follows, therefore, that before a lunatic so found can 
 commence an action, such leave must be obtained, wliich 
 is done by laying a proposal before one of the Masters 
 in lunacy, who makes his report to the Chancellor or 
 Justices, upon which an order is made. If the order is 
 favourable the committee commences the action in the 
 name of the lunatic " by A. B. his committee,'' and the 
 committee then stands in the same position as the next 
 friend of an infant. So also, as in the case of an infant, 
 if an action is commenced by a lunatic so found without 
 his committee, the defendant may move or take out a 
 summons to dismiss or stay it {£). 
 
 With regard to imbeciles who have not been found 
 lunatics by inquisition, they can commence and carry 
 on actions by their next friends like infants [a). 
 
 With regard to defendant lunatics, whether so found 
 or not, they are made defendants in the writ in their 
 own names, and appear by guardian ad /if cm, as will be 
 seen hereafter. 
 
 SuBSEC. 9. — Paupers. 
 
 Taking into consideration the fees payable at every 
 step in an action to the court, and the fact that few per- 
 sons are sufficiently conversant with the practice of the 
 
 (r) Dau. Ch. Vv. SI. {<() Li'jhl v. Ll'jld, 2b Bta. 250.
 
 THE PARTIES. 43 
 
 court and the doctrines of equity to commence and cany 
 on an action without the aid of solicitor and counsel, it is 
 obvious that if some special provision were not made on 
 their behalf, poor persons would bo unable to obtain 
 justice, or to defend themselves against unjust claims. 
 A person, therefore, who can make an affidavit stating 
 that he is not worth bl. in the world except his wearing 
 apparel and the matters in dispute in the action, is 
 allowed to sue or defend, as the case may be, in forma 
 2}aiq)cris. It certainly seems at this date somewhat 
 ludicrous to fix the poverty at 5/., as it is only too certain 
 that a man only worth 50/. or even 100/., Avould soon 
 exhaust his means in prosecuting or defending an ordi- 
 nary suit, and that to deny the right of suing /// foniid 
 jxaqjcris to a man who has only 10/. in the world, is a 
 practical denial of justice. 
 
 A person desiring to sue in forma pauperis must pre- 
 sent a petition to the High Court praying to be admitted 
 to sue or defend in forma jjauperis, and that a solicitor 
 and counsel may be assigned him. This petition must 
 concisely state his case, and what proceedings (if any) 
 have been taken. In the case of plaintiff paupers a 
 certificate of counsel must be written at the foot, stating 
 that the petitioner has just cause to be relieved (/>) . 
 This petition and the above-mentioned affidavit of 
 pauperism must be left with tlie secretary of causes at 
 the EoUs, who if he sees no objection to it will draw up 
 the order as of course. By virtue of this order, the 
 pauper is excused from paying court fees, or solicitors 
 or counsel's fees, and the latter are bound to act, and to 
 act gratuitously, whether they like it or not, unless they 
 can satisfy the judge that they have good reason for 
 
 (//) Coiii^. Ord. VII. r. .s.
 
 44 THE -SVHiT OF SUMMONS. 
 
 being- excused {c). Indeed, so strict is the court in en- 
 forcing this duty, that if such a solicitor or coimsel 
 accepts any reward from the pauper, or agrees to accept 
 any such, he will be held guilty of contempt, and the 
 pauper will be promptl}' dispaupered (d). 
 
 A person who has wrongly procured permission to sue 
 ill foniid 2)aitj)eris will be dispaupered on motion (c). 
 
 Sectiox 2. 
 T/ic Persons icho ought to he made Parties. 
 
 As already stated at the commencement of this chap- 
 ter, it is a general rule that all persons who may have 
 in the object of an action in the Chancery Division an 
 apparent interest, or against whom the decree sought for 
 will establish a right, or upon whom it will impose a 
 duty, ought to be made parties either as plaintiffs or 
 defendants. 
 
 This rule, however, is not now of such vital import- 
 ance as formerly, because by Order XVI. r. 1, of the 
 R. S. C, it is ordered, that " all persons may be joined 
 as plaintiffs in whom the right to anj' relief claimed is 
 alleged to exist, Avhether jointly or severally, or in the 
 alternative. And judgment may be given for such one 
 or more of the plaintiffs, as may be found to be entitled 
 to relief, for such relief as he or they maj' be entitled to 
 without any amendment." And by rr. 3 and 5 of the 
 same Order, it is ordered, that all persons may be joined 
 as defendants, against w^honi the right to any relief 
 claimed is alleged to exist, whether jointly, severally, or 
 in the alternative, and judgment may be given against 
 such one or more of the defendants as may be found to 
 
 (r) Cons. Ord. VII. r. 10. [<) Xva-cll v. Whilukcr, G Boa. 
 
 {(l) lb. r. 9. 107.
 
 THE PARTIES. 45 
 
 be liable, according to their respective liabilities, without 
 any amendment. And by r. 13 of the same Order, it is 
 ordered, tliat " no action shall be defeated by reason of 
 the misjoinder of parties, and the coui't may in every 
 action deal with the matter in controversy, as far as 
 regards the rights and interests of the parties actually 
 before it. The court or a judge may, at any stage of the 
 proceedings either upon or without the application of 
 eitlier party, and on such terms as may appear to the 
 court or judge to be just, order that the name or 
 names of any party or parties, whether as plaintiffs or 
 as defendants improperly joined, be struck out, and 
 that the name or names of any party or parties, whether 
 plaintiffs or defendants, who ought to have been joined, 
 or whose presence before the court may be necessary in 
 order to enable the court effectually and completely to 
 adjudicate upon and settle all the questions involved in 
 the action, be added." And by r. 2, a new plaintiff, 
 even, may be substituted, where there has been a ho»d 
 fide mistake. All such applications should, by r. 14, be 
 made by motion or summons before trial, or at the trial 
 itself, and should not be ex parte. Still, although the 
 above rule takes away the former importance of joining 
 the right parties to an action, yet it is still desirable 
 that the proper parties should be ascertained in the first 
 instance, because the plaintiff will have to bear all costs 
 occasioned by not having done so (./'). 
 
 The above general rule must therefore still be ob- 
 served, and in carrying it out, care must be taken not to 
 join as plaintiffs any persons who have interests ad- 
 
 (/) R. S. C, Ord. XVI. rr. 1, v. Hannah, W. N. 1877, p. 3.5 ; 
 
 3 ; and see Chihl v. Stenning, L. R. , Buckett v. Gorcr, L. R. , 6 Ch. D. 
 
 7 Ch. D. 413. As to new plain- 8 ; Clours v. Jlilliard, 4 ib. 41.5. 
 tiffs, see New Westminster Breiccrj
 
 46 THE WRIT OF SUMMONS. 
 
 verse to one another. All 2^c)'sons having such adverse 
 interest should be made defendants. For example, a hus- 
 band and wife, in respect of the wife's property not 
 settled to her fteparate -use, have a common interest, and 
 therefore they may properly be joined together as co- 
 plaintiffs. Hut wliere a woman has property settled to 
 her separate use, her interest is adverse to that of her 
 husband's /egal right, and therefore he should be made 
 a defendant, even though the action may be com- 
 menced at his desire {g) . 
 
 Numerous Class. Where there is a numerous 
 class of persons having the same interest in the subject- 
 matter of the suit (as, for example, creditors of a deceased 
 insolvent, the inhabitants of an unincorporated town or 
 village, &c.), it would obviously be very costly and in- 
 convenient, if not impossible, to join all of them ; and 
 in this case it is permissible to name one or more of 
 such persons to represent the rest, either as plaintiffs or 
 (by leave of the court) as defendants (h). This is very 
 frequently seen in the case of an administration action, 
 commenced by one creditor " on behalf of himself and 
 all other creditors of " a deceased insolvent against the 
 executors of the latter. If a member of the class dis- 
 sents from the course taken by the plaintiff in such a 
 case, he should apply to the com't by motion either to 
 take the conduct of the action out of the plaintiff's 
 hands and to substitute another, or to have the applicant 
 added to the action as a defendant (/"). 
 
 Parties to Administration Actions. This 
 principle was considerably extended in certain specified 
 
 {(j) Rohcris V. L'vans, L. R., 7 D. 109; 5 ib. o40; and 24 W. R. 
 
 Ch. D. 830. ;il7. 
 
 {h) R. S. C, Orel. XVI. r. 9. (/) Watsou v. Care, L. R., 17 
 
 For iu.stiinces, see L. R., 2 Ch. Ch. D. 19, per Cotton, L. J.
 
 THE PARTIES. 47 
 
 cases by the act 15 & IG Vict. c. 8G, s. 42, which Laid 
 doAvn certain rules, of which tlio following is a siini- 
 mary, viz. : — Any residuary legatee or next of kin (as 
 to personal estate), and any person interested in any 
 legacy charged on real estate, or in the proceeds of 
 real estate directed to be sold, or any residuary de- 
 visee or heir (as to real estate), or any cestui que trust 
 (as to settled, real or personal property), may have 
 a decree for administration of such property without 
 making any other person beneficially interested a party. 
 And in all suits for the protection of property pending- 
 litigation, or in cases of waste, one person may sue on 
 behalf of himself and all other persons having the same 
 interest ; and an executor, administrator or trustee may 
 obtain a decree against any one person beneficially in- 
 terested for the administration of the estate. And in 
 actions concerning property vested in trustees, they are 
 to represent the persons beneficially interested to the 
 same extent and in the same manner as executors or 
 administrators represent the persons interested in the 
 personal estate of their testator or intestate (,/). But in all 
 these cases (except the last) the other persons interested 
 have to be served with notice of the decree, and are 
 afterwards as much bound as if they had been made 
 parties ; and by an order, obtained on petition of course, 
 they may obtain leave to attend all subsequent proceed- 
 ings, and may also obtain leave to add to the original 
 judgment or order. In the case of trustees representing 
 their ccstuis que trust, the court may, if it think fit, order 
 the latter to be made parties. 
 
 Parties to Partition Actions. In addition to 
 the foregoing enactment, it is enacted by the Partition 
 
 (J) And see R. S. C, Orel. XVI. r. 7; and Miils v. JoDihxjn, 
 L. R., 13 Ch, D. 639.
 
 48 THE WRIT OF SUMMONS. 
 
 Act (y), that any person entitled to sue for a partition 
 may bring an action for sucli partition against one or 
 more of the parties interested, without making the 
 others parties ; but such other parties are to be served 
 with notice of the judgment, after which they become 
 to all intents and purposes parties, and may have liberty 
 to attend subsequent proceedings, and may apply to the 
 court to add to the decree. This enactment has been 
 added to by the Partition Act, 1876 [k), which enacts, 
 that where it appears to the cornet that the above-men- 
 tioned notice of the judgment cannot be served, or at 
 least without expense disproportionate to the property 
 involved, the court may dispense therewith, and direct 
 advertisements to be published instead, calling on all 
 persons interested to come in and establish their claims 
 by a certain date, in default of which they will be as 
 fully bound by the proceedings as if served with the 
 judgment. 
 
 Construction of certain Instruments. Again, 
 by R. S. C, Ord. XVI. r. 9a, it has been ordered, that 
 in any case in which the right of an heir, next of kin 
 or class shall depend on the construction of any instru- 
 ment, and it shall not be known, or difficult to ascertain 
 who is or are such heir, next of kin or class, and the 
 court shall consider that, to save expense or some other 
 reason, it will be desirable to have such question of con- 
 struction forthwith tried, the court may appoint some 
 person or persons to represent such heir, next of kin or 
 class, and the judgment of the court shall be binding on 
 the persons so represented. 
 
 Doubtful Cases. Where a plaintiff has reasonable 
 ground for doubting from whom he is entitled to obtain 
 
 (7) 31 & 32 Vict. c. 10, s. 9. [Ic) 39 & 40 Vict. c. 17, s. 3.
 
 THE TAIITIES. 49 
 
 redress, he may join all persons against whom he may 
 reasonably suppose himself to have ground of com- 
 plaint (/), and may even claim inconsistent alternative 
 relief from them, and in that case the costs of any 
 against whom he fails may have to be paid by those 
 against whom he succeeds. The case of Child v. >SV^/^- 
 ning [in) will illustrate this new and important rule. In 
 that case the plaintiff, a lessee of land, brought an 
 action against the lessor and other lessees who claimed 
 a right of way over the plaintiff's land under a grant 
 from the same lessor, claiming an injunction, or if the 
 court should hold that the defendant lessees had a right 
 of way, then, instead of an injmiction, claiming damages 
 against that lessor. This latter relief was given, and 
 the lessor being the cause of the whole litigation, was 
 ordered to pay the costs both of the plaintiff and the 
 other lessees. 
 
 Misjoinder. If the plaintiff should issue the writ, 
 with the wrong parties, the court or a judge may, at 
 any time before trial, allow him to add or strike out, or 
 substitute a plaintiff or defendant (»). Such application 
 should be by summons or motion, or made at the trial, 
 and will not be granted ex parte (o). It should be 
 remembered, that if notice of trial or of interlocutory 
 motion has been given, the application to amend should 
 be by summons, which should state that it is without 
 prejudice to the notice (7;). 
 
 {I) R. S. C, Ord. XVI. r. G. and 14. 
 
 (>h) L. E,., 11 Ch.D. 82; oCh. (o) lb. ; and see TUdesley v. 
 
 D. 695; and see also Honduras J/<7;-jo«-, L. R., 3 Ch. D. 77. For 
 
 Rail. Co. V. Lefevre, L. R., 2 form of order, see Edwards v. 
 
 Ex. D. 301. ZowtJier, 24 W. R. 437. 
 
 (w) R. S. C, Ord. XVI. rr. 13 (;;) Ante, p. 29. 
 
 V.
 
 60 the writ of summons. 
 
 Section 3. 
 
 Change of Parties hy Death, S^'C. 
 
 In case of the death, marriage or bankruptcy, or 
 devolution of estate by operation of law of any party to 
 an action, the court or a judge may, if he deems it 
 necessary for the complete settlement of all the ques- 
 tions involved in the action, order that the personal re- 
 presentative, husband, trustee or other successor in in- 
 terest (if any) of such party, be made^ a party to the 
 action, or be served with notice of it {q) . 
 
 In case of an assignment, creation, or devolution, of 
 an estate pendente lite, the action maybe continued by or 
 against the person to, or upon, whom such estate has 
 come or devolved (r). 
 
 It would seem that an order for a change of parties, 
 or for joining a person abead}^ a party, in another 
 capacity, ought in general to be obtained on petition of 
 course (.s), although, in cases of nicety, the application 
 may be made by ex parte motion (;"). 
 
 The order, when obtained, must be served on all the 
 old and new parties, and the order is binding on them 
 from the time of such service, and the new parties must 
 enter an appearance as if the order were a writ of sum- 
 mons {i() ; but any person under no disability other 
 than coverture, or who, being under disability, never- 
 theless has a guardian ad litem in the action, may apply 
 to discharge or vary the order within twelve days from 
 the service; and any party under disability (save as 
 
 (rj) E. S. C, Ord. L. r. 2. (0 llaMaiu v. EcJ^ford, W. N. 
 
 [r) lb. r. 3. 1879, p. 80. 
 (i) lb. r. 4 ; and Fiofci/y. Miller, («) R. S. C, Ord. L. r. 5. 
 
 W. N. 1875, p. 22.5.
 
 THE PARTIES. 61 
 
 above) may apply for that purpose witliin twelve days 
 from the appointment of a guardian ad litem to him or 
 her {x). 
 
 CHAPTER III. 
 
 INDORSEMENT OF CLAIM. 
 
 The writ, as we have seen before, must bo endorsed 
 with a statement of the nature of the claim made, or 
 relief or remedy required by the plaintiff. 
 
 If the claim is for a liquidated demand {i.e., a de- 
 mand for a sum certain), the plaintiff must state how 
 much such demand is, and also how much he claims for 
 costs, and must state that if the amount be paid within 
 four days after service (or where the writ is to be served 
 out of the jurisdiction, within the time allowed for ap- 
 pearance) further proceedings will be stayed {a). In 
 such cases, also, the plaintiff may, what is called, 
 " specially indorse " the writ with particulars of the 
 liquidated sum which he claims, with dates and 
 amounts {h), in which case the plaintiff' may apply for 
 leave to sign judgment, and the defendant will have to 
 satisfy a judge that he ought to be allowed to defend 
 the action, before being permitted to do so (c) . How- 
 ever, these special indorsements are rarely used in the 
 Chancery Division, because a Chancery action is not the 
 appropriate tribunal in which to recover a liquidated 
 
 {x) lb. rr. G, 7. {h) Farpaitc v. JDiclcnaon, 38 L. 
 
 \a) E. S. C, Orel. III. r. 7. T. 17S. 
 
 (<) R. S. C, Ord. XIV. r. la. 
 
 e2
 
 62 THE WRIT OF SUMMONS. 
 
 sum, the Queen's Bench Division of the High Court 
 being the tribunal more usually appealed to for that 
 pui'pose. 
 
 Misjoinder of Causes of Action. In indorsing 
 the "WTit, the chief danger to be avoided is the joinder 
 of several causes of action which ought not to be joined. 
 Before the passing of the Judicature Acts, the right of 
 the plaintiff to join several causes of action in one suit, 
 was very much restricted, and an attempt to do so fre- 
 quently gave rise to a " demurrer for multifariousness," 
 which in effect was an objection, that even granting the 
 truth of all the plaintiff's allegations, yet they were too 
 numerous and too complex to be dealt with in one suit. 
 Such an objection, however, is now in a great measure 
 removed, and subject to some exceptions, which will be 
 presently noticed, the plaintiff may unite in the same 
 action several causes of action ; and joint claims by several 
 plaintiffs may be joined with claims by one or more of 
 them against the same defendant ; and claims by or 
 against a husband and wife may be joined with claims 
 by or against either of them separately {d). 
 
 The rule is subject to the follo^\'ing exceptions, which 
 can, however, for sufficient cause, be abrogated in par- 
 ticular cases by the coiu't or a judge. 
 (1) No cause of action unless by leave of a judge or 
 the court can be joined with an action for the 
 recovery of land, except claims for mesne profits 
 or rent of such land, or damages for breach of 
 any contract under which such land is held {e) . 
 It would seem, however, that leave is not re- 
 quired to join any other cause of action which 
 arises out of or is incident to the claim to the 
 
 {d) R. S. C, Ord. XVII. rr. 1, G, 4. {e) lb. r. 2.
 
 INDOnSKMENT OF CLAIM. bO 
 
 land in question (as for the appointment of a 
 receiver, or an injunction (,/'), or the cancellation 
 of a deed relating to the property (g) ). TVTiere 
 the recovery of the land fomis part and parcel of 
 a general claim to have property administered 
 leave will be granted (A). A foreclosure action 
 is not an action for recovery of land within this 
 rule (/). 
 
 (2) Claims by a trustee in bankruptcy as such, cannot 
 
 be joined with claims by him in any other 
 capacity (/.•) . 
 
 (3) Claims by or against an executor or administrator, 
 
 as such, cannot be joined with claims by or 
 
 against him in his private capacity, unless the 
 
 latter are alleged to arise with reference to the 
 
 estate of his testator or intestate, as the case may 
 
 be (/). 
 
 In order to get leave to transgress any of the above 
 
 exceptions, the plaintiff should, before the writ is 
 
 served {m), apply to the court by ex parte motion for 
 
 the required leave (») . It is not necessary to produce 
 
 any evidence in support of such an application. 
 
 If, without obtaining leave, a plaintiff joins any of 
 
 (/) Gkdhill V. llimhr, L. E., (/) R. S. C, Ord. XVII. r. 3. 
 
 14 Ch. D. 492 ; but see Allot v. (l) It is assumed that this is 
 
 Kennett, 24 W. R. 845; Coolc v. the correct interpretation of R. 
 
 Enchmavsh, L. R., 2 Ch. D. Ill, S. C, Ord. XVII. r. 5. 
 
 [g) Cook V. Enclimarsh, sup. [m) Pilchcr v. Hinds, L. R., 
 
 (A) Gkdhill V. Jlunto; sup. ; 11 Ch. D. 90.5. 
 
 but see Kitchimj v. Kitchiny, 24 {>i) See cases cited, notes (/) 
 
 "W. R. 901 ; MfDiistij V. Kcucahj, and (//), sup. As to mode of 
 
 ib. 919 ; Whetstone v. Denis, L. making an ex parte motion, sec 
 
 R., 1 Ch. D. 99. infra, Sub-div. XI. Chap. II. 
 
 (t) Taivell V. Slate Co., L. li., 3 Sect. 1. 
 Ch. D. 629.
 
 5i THE WRIT OF SUMMONS. 
 
 the proliibited causes of action, a summons to strike out 
 the claim objected to should be taken out. 
 
 Inconvenient Joinder of Claims. If, although 
 not transgressing the above-mentioned rule, the plaintiff 
 should join several causes of action which cannot co)i- 
 venienthj be tried together, the court or a judge may 
 order them to be tried separately (o) ; and if a plaintiff 
 should join several causes of action which cannot be 
 conveniently disjwsed of in one action, the court or a 
 judge may, on application by summons, order any of 
 such causes of action to be excluded, and may dhect 
 the statement of claim and writ to be amended accord- 
 ingly, and may make such order as to costs as may be 
 just {])). 
 
 If the plaintiff finds that he has made a mistake in 
 his indorsement of claim, he may, it is believed, before 
 service of the writ, amend the statement without leave ; 
 but it is safer to get leave. 
 
 If, however, the writ has been served, he must get 
 leave to amend, which (if the statement of defence has 
 not been delivered) will bo granted on motion or petition 
 of coui'se (q), but if the defence has been delivered, then, 
 unless the defendant consents, the application must be 
 by summons {r). 
 
 It has been said, however, by the Master of the Eolls 
 that the indorsement of claun need not be amended if 
 the statement of claim has been delivered (that docu- 
 ment superseding the indorsement of claim) (.s), and as 
 it is very unusual not to deliver a statement of claim in 
 
 (o) R. S. C.,Ord. XVII. r. 1. {/) Marriott v. Marriott, 26 
 
 (;;) lb. rr. 8, 9. W. R. 416. 
 
 [q) lb., Ord. III. r. 2 ; Matthias («) Langev. Laitge, W. N. 1877, 
 
 V. Matthias, "W. N. 1870, p. 214. p. 108 ; Eijrcv. Cox, 24 W. R. 316.
 
 INDORSEMENT OF CLAIM. 55 
 
 a Chancery action, it would scorn that it can scarcely 
 ever be necessary to amend the indorsement after the 
 defence has been delivered. 
 
 It is nevertheless humbly conceived, that the obser- 
 vations of the Master of the Eolls can only be taken to 
 extend to cases where the variance between the writ 
 and the statement of claim consists in the latter claim- 
 ing merely some additional relief by way of supplement 
 to the former, and not altogether differing from it in 
 jioint of substance. For instance, a writ for dissolution 
 of partnership would not require to be amended, in 
 order to admit of the statement of claim containing a 
 claim for an injunction and a receiver; but, on the other 
 hand, a writ for foreclosm-e could scarcely support, with- 
 out amendment, a statement of claim, praying damages 
 against the defendant for inducing the plaintiff to 
 advance money on the mortgage by fraudulent repre- 
 sentations. 
 
 It must not be forgotten that if notice of trial, or of 
 an interlocutory application, has been given, the appli- 
 cation to amend should be by summons, u-hich should 
 state that it is without prejudice to the notice {t). 
 
 CHAPTER IV. 
 
 ISSUING THE WRIT. 
 
 Solicitor's Retainer. Before issuing the writ, the 
 solicitor for an intended plaintiff should take care to be 
 
 (0 Aute, p. 29.
 
 56 THE WRIT OF SUMMONS. 
 
 provided with sufficient evidence of liis authority to 
 commence and prosecute the action ; for if the plaintiff 
 afterwards denies that he gave such authority, and there 
 is nothing but assertion against assertion, the court will 
 say that the solicitor ought to have secured himself by 
 having an authority in writing, and that not having 
 done so, he must abide the consequences of his neglect, 
 and the action will be dismissed, and the solicitor 
 ordered to reimburse the plaintiff all the expenses 
 caused by its having been commenced {u). 
 
 When a solicitor has commenced an action without 
 the plaintiff's authority, the proper coui'se is for the latter 
 to serve notice of motion on the defendant and on the 
 solicitor, that the action may be dismissed, and that the 
 solicitor may pay the costs of the plaintiff as between 
 solicitor and client, and the costs of the defendant as 
 between party and party (r) . 
 
 Sealing. After the "^Tit has been duly prepared, 
 and the proper parties determined, and the proper claim 
 indorsed, the next step is to "issue" it, by which is 
 meant getting it made an authoritative summons of the 
 court. This is done by getting it sealed, either at the 
 London central office by a master of the High Court, 
 or, at one of the various district registries which have 
 been established in various parts of the country, by the 
 registrar (x). The plaintiff or his solicitor must, on 
 presenting the writ for sealing, leave with the officer 
 who seals the same, a copy of the ^NTit (including in- 
 dorsements) on the proper kind of paper, and such copy 
 
 (m) Wriff ht v. Castk, Z'M.eT. 12; (c) XewhUjgin, ^c. Gas Co. v. 
 
 Bird V. Harris, TV. N". 1880, p. Armstrong, L. K., 13 Ch. D. 310. 
 
 166 ; and see Re Savage, L. R., {x) R. S. C, Ord. V. rr. 1, 
 
 16 Ch. D. 557. la, 6.
 
 ISSUING THE WRIT. 57 
 
 must be signed by or for the solicitor (if one be em- 
 ployed), or by the plaintiff himself (if he sue in per- 
 son) (//). 
 
 The officer who seals the writ, at the same time files 
 the copy, and enters a memorandum of such filing in a 
 book called " the cause book," distinguishing the action 
 by the date of the year, the initial letter of the first 
 plaintiff's name, and a number (~) thus : — " 1881. B. 
 No. 102," and this distinguishing mark is placed at the 
 head of the writ, and all pleadings and other documents 
 filed in the action. 
 
 If the writ is issued out of a district registry, the 
 name of the registry is also added to the writ beneath 
 the words Chancery Division (a) thus : — 
 
 1880. B. No. 102. 
 In the High Court of Justice. 
 Chancery Division. 
 
 Birmingham District Registry. 
 Master of the Rolls. 
 
 Sealing for Service out of the Jurisdiction. 
 
 If the writ is intended to be served out of the jm-is- 
 diction the leave of a judge must be obtained before it 
 can be sealed {h). This is done by leaving the unsealed 
 writ at the chambers of the judge, with an affidavit, 
 and the judge marks the order or the writ itself, with- 
 out hearing counsel or solicitor, and a copy of this 
 order must be ^viitten on the copy for filing. The 
 affidavit must state (1) the value or amount of the pro- 
 perty ^1 dispute {c) ; (2) the place or county where the 
 
 il/) lb. r. 7. (i) R. S- C, Ord. II. r. 1. 
 
 {z) lb. r. 8. (0 R. S. C, Ord. XI. r. la. 
 
 {a) lb., Addition of June, 1870.
 
 58 THE WRIT OF SUMMONS. 
 
 defendant Is probably to be found; (3) whetlier the 
 defendant is a British subject or not {d) ; (4) whether 
 or not there is at the place where the defendant resides, 
 a local court which has jurisdiction in the matter {e), 
 and also that the plaintiff is informed and believes that 
 he has a good cause of action within the jurisdiction (/'), 
 and also the special reasons for suing in the High 
 Court (//). 
 
 Concurrent Writs. Where it is doubtful where 
 the defendant is to be found, it is permissible to issue 
 concurrent writs after the issue of the original writ. 
 Such writs are marked " concurrent," and bear the 
 same date as the original writ, and are sealed in the 
 same manner (//) . The original -wi'it may be issued for 
 service within the jurisdiction, and the concurrent ^vrits, 
 or some or one of them, for service out of it, or vice 
 versa {i) ; but, of course, before a concurrent writ can be 
 marked for service outside the jurisdiction, leave must 
 be obtained. 
 
 New Defendants added after Issue. Where 
 a writ is amended after issue by the addition of a de- 
 fendant, the plaintiff must (unless otherwise ordered by 
 the court or a judge) file an amended copy of, and sue 
 out a writ of summons, and serve such new defendant 
 with such writ or notice in lieu of service thereof, as the 
 case may be, in the same manner as original defendants 
 are served (/r) . 
 
 [d] R. S. C, Ord. XI. r. 3. (ff) R. S. C, Ord. XI. r. 3. 
 
 (c) Ib.r. la; Wood\. MacLincs, (/() R. S. C, Ord. VI. r. 1. 
 
 L. R., 4 C. P. D. 67. (0 lb. r. 2. 
 
 (/) Gnat Aust. Gold Co. v. [k) R. S. C, Ord. XVI. rr. 15, 
 
 MaHin, L. R., 5 Ch. D. 1. 13. 
 
 ♦
 
 SERVICE OF THE WRIT. 69 
 
 ciiArTErv V. 
 
 SERVICE OF THE WRIT. 
 
 The writ being issued, it has next to be served on the 
 defendant, and this must be done by the plaintiff or his 
 solicitor, andjoot by the officers of the court. 
 
 If, however, the defendant, by his solicitor, agrees to 
 accept service, no personal service is necessary {a) . 
 
 If the defendant does not agree to accept service, tho 
 writ must (subject to what is said hereafter in regard to 
 substituted service) be personally served on the defen- 
 dant, by tendering him a copy of the writ and producing 
 the original, if required [h). 
 
 But although personal service on a defendant is 
 generally necessary where his solicitor does not consent 
 to accept service for him, yet there are certain excep- 
 tions to the general rule which arise out of the excep- 
 tional status of particular classes of defendants. 
 
 Husband, and Wife. When a husband and wife 
 are both defendants, service on the husband is sufficient 
 unless a judge or the court directs otherwise {c). 
 
 Infants. Service on the father or guardian of an 
 infant defendant, or if he has neither, then upon the' 
 person with whom he resides or under whose care he is, 
 is sufficient, unless a judge or the court directs other- 
 wise {(l). 
 
 Lunatics. If a defendant be a lunatic so found, 
 service on his committee is sufficient ; and in the case of 
 a person of unsound mind not so found, service on the 
 
 («) R. S. C, Ord..IX. r. I. [c) lb. r. 3. 
 
 (//) lb. r. 2. [d) lb. r. 4.
 
 60 THE "WRIT OF SUMMONS. 
 
 person witli whom he resides, or under whose care he is, 
 is sufficient, unless in either case a judge or the court 
 directs otherwise {e). 
 
 Partnership Firm. ^Tiere a firm is sued in the 
 finn name, whether such firm actually consists of more 
 than one person or only of one person, the writ may be 
 served on any one or more members of the firm, or at 
 the principal place of business ^\ithin the jui'isdiction 
 upon any person having at the time of service the 
 management of the firm business (/) . 
 
 Foreigners living out of the Jurisdiction. 
 A foreign defendant living out of the jurisdiction 
 should not be served with the -^Tit, but -with notice 
 that the writ is issued {g) , such notice being indorsed 
 as to address of parties, &c. like a "^Tit of summons. 
 
 Companies. Companies chartered imder the act 
 7 Will. 4 & 1 Vict. c. 73, may be served by service on 
 the clerk of the company, or if he be not kno"v\Ti, or 
 cannot be found, then on any agent or officer of the 
 company, or by leaving it at the usual abode of such 
 agent or officer {//). 
 
 Companies incorporated under the Companies Clauses 
 Consolidation Act, 184o, may be served by sending the 
 writ through the post to the principal office of the com- 
 pany, or to one of the principal offices where there is 
 more than one, or by giving it personally to the secrer_ 
 tary, or, where there is no secretary, by giving it to a 
 director (/). 
 
 [e) R. S. C, Ord. IX. r. 5. (h) R. S. C, Ord. IX. r. 7 ; 
 
 (/) lb. rr. 6, 6a. and 7 WUl. 4 & 1 Vict. c. 73, 
 
 iff) Ite Moicard, L. R., 10 Ch. s. 20. 
 D. 550. (0 R. S. C, Ord. IX. r. 7; 
 
 and 8 Vict. c. IG, s. 135.
 
 SERVICE OF THE WRIT. 61 
 
 Companies incorporated under the Lands Clauses 
 Consolidation Act, 184-3, may be served by sending the 
 writ by post to the principal office, or one of the prin- 
 cipal offices, of the promoters, or by posting it to the 
 secretary, or, where there is no secretary, to the 
 solicitor (/•). 
 
 Companies incorporated under the Railways Clauses 
 Consolidation Act, 1845, may be served, by sending the 
 writ by post to the principal office, or one of the prin- 
 cipal offices, of the company, or by giving it personally 
 to the secretary, or, where there is no secretary, to one 
 of the directors (/) . 
 
 Companies incorporated under the Companies Act, 
 1862, may be served, by leaving the writ, or sending it 
 through the post in a prepaid letter addressed to the 
 company, at their registered office {ni) . 
 
 Inhabitants of Counties, Towns, &c. Service 
 may be effected on a municipal corporation, by serving 
 the mayor or other head officer, or the town clerk, 
 secretary, or treasui'er (;/). 
 
 The inhabitants of a hundred, or other like district, 
 may be served, by serving the . high constable, or one of 
 them, if more than one (o). 
 
 The inhabitants of a county, city, town, or of any 
 franchise, liberty, city, town or place, not being part of 
 a hundred or other like place, may be served, by serving 
 some ^ peace offi cerjtiieieof (o). 
 
 (/.) R. S. C, Ord. IX. r. 7 ; (m) R. S. C, Ord. IX. r. 7 ; 
 
 and 8 Vict. c. 18, s. 134. and 25 & 2G Vict. c. 189, s. 62. 
 
 (0 R. S. C, Ord. IX. r. 7 ; («) R. S. C, Ord. IX. r. 7 ; 
 
 and 8 Vict. c. 20, s. 138. and C. L. P. Act, 1852, s. 16. 
 
 (o) lb.
 
 62 THE WRIT OF SUMMONS. 
 
 Ejectment. Ejectment actions are not usual in the 
 
 Chancery Division, but it may be remarked that in ease 
 of vacant possession, and when the defendant cannot 
 otherwise be served, it is sufficient to post a copy of the 
 writ on the door, or any other conspicuous part of the 
 property. 
 
 Substituted Service. "Where service cannot be 
 promptly made in accordance with the foregoing rules, 
 the plaintiff may apply to the court by a motion ex jJdiie, 
 supported by an affidavit, stating the issue of the writ, 
 that the cause books at the offices where the defendant 
 might have entered an appearance have been searched, 
 but no appearance has been entered, and showing what 
 efforts have been made to serve the defendant, and that 
 all practicable means of doing so have been exhausted, 
 and proposing some method of bringing the wTit to the 
 defendant's knowledge {q) ; and thereupon the court may 
 make such order for substituted or other service, or for 
 the substitution of notice for service, as may seem just [r). 
 Thus the writ has been ordered to be left at the defen- 
 dant's place of business, and a copy to be posted to 
 him («) ; and so where the defendant had absconded, the 
 writ was ordered to be left at his premises, and adver- 
 tisements to be inserted in the Times and Gazette {t). 
 Where the order is for substituted service, the order for 
 it and the writ should be_^rved together in manner 
 prescribed by the order. 
 
 {q) E. S. C, Ord. X.; and see (t) Cool: v. Bay, L. R., 2 Ch. 
 
 Dan. Ch. Pr., 4th ed. vol. i. p. D. 220 ; and see Crane v. JuUi(m, 
 
 404. ib. 220 ; Bafacl \. Ongky, 34 L. 
 
 (r) R. S. C, Ord. IX., r. 2. T. 124. 
 
 («) CapesY.Breicer, 24 W. R. 40.
 
 SERVICE OF THE WRIT. 63 
 
 Indorsement of Service. The person who serves 
 a writ must, within three days afterwards, indorse on 
 Ihe writ the day of the month and week on which such 
 service was effected, otherwise the plaintiff cannot pro- 
 ceed by default (u) ; but of course this rule is inappli- 
 cable to cases of substituted service (.r) ; and the time 
 may be extended by the court on motion (v/). 
 
 (m) R. S. C, Ord. IX. r. 13. {ij) Hastings v. Uurlcy, L. R., 
 
 [x) BijmondY. Croft, L. R., 3 IG Ch. D. 734. 
 Ch. D. 512.
 
 ( 64 ) 
 
 Sub-division II. 
 Defendant's Proceedings on Service of Writ. 
 
 Chapter I. — Appearance . 
 
 Section 1. — General Fractlce. 
 
 2. — Appearance of Infants and Lunatics. 
 Chapter II. — Coxditionai Appearance. 
 Chapter III. — Defaltlt of Appearance. 
 Chapter IV. — Interpleader. 
 Chapter V. — Proceedings to bind a Third Party. 
 
 Upon the writ being served, or notice in lieu of ser- 
 vice being given, the defendant has to consider what 
 course he should pursue. He may either enter an ap- 
 pearance, enter a conditional appearance and apply to 
 set the writ aside for irregularity, or omit to enter any 
 appearance; or he may enter an appearance and inter- 
 plead ; or he may take proceedings to bind a third party 
 who is bound to indemnify him. 
 
 CHAPTEE I. 
 
 APPEARANCE. 
 
 Section 1. 
 
 General Practice. 
 
 By appearing in obedience to a writ of simimons, a 
 
 defendant formally submits himself to the jurisdiction
 
 APPEARANCE. 65 
 
 of the court ; and formorh^ it was considered essential 
 that the defendant should eitlier appear himself, or that 
 under the orders of the court the plaintiff should enter 
 an appearance for him, and until one of these courses 
 was adopted the court had no jurisdiction over the 
 matter in dispute. This theory is, however, now in a 
 great measure done away with, and as we shall see 
 hereafter in the third chapter of this sub-division, judg- 
 ment may now be had in default of appearance. 
 
 An appearance is entered by delivering to the proper 
 officer (who in London is the master of the High Court 
 and in a district registry the registrar), a memorandum 
 in writing, in duplicate, dated on the day of delivering 
 the same, and containing the name and place of business 
 of the defendant's solicitor, or stating that the defendant 
 defends in person, and giving an address for service 
 \y'ithin three miles of Temple Bar if appearance is en- 
 tered in London, or within the district of the District 
 Registry where appearance is entered in a district 
 registry («). If the defendant requires a statement of 
 claim to be filed and delivered, the memorandum should 
 state so. If the memorandum does not contain the 
 addi-esses above referred to, it will not be received; and 
 if such addresses are false or illusory, the appearance 
 will be set aside on the plaintiff applying by summons 
 in chambers {b). 
 
 The following is the form of a memorandmn of ap- 
 pearance (e) ; and it may be here conveniently stated 
 that all defendants who are represented by the same 
 solicitor appear together and in one memorandum ((/). 
 
 (f/)R.S.C.,Ora. XIT.rr.Gb, 7. 
 
 {(■) lb. r. 
 
 10. 
 
 
 (i) lb. r. 9. 
 
 (^0 lb. r 
 
 13. 
 
 
 U. 
 
 
 
 F
 
 66 defendant's proceedings on service of writ. 
 
 1881. S. No. 300. 
 High Court of Justice. 
 
 Chancery Division. 
 
 Vice-Chancellor Hall. 
 
 Smith v. Jones. 
 
 Enter an appearance for Thomas Jones in this action. 
 Dated tliis 3rd day of May, 1881. 
 
 Jaites Beowx, 
 Solicitor for the Defendant. 
 
 The place of business of the said James Bro-wn is 500, Strand, in 
 the coirnty of Middlesex. 
 
 His addi-ess for service is at 500, Strand aforesaid. 
 
 The said defendant requires a Statement of Complaint to be filed 
 and delivered. 
 
 Place of Appearance. With regard to the 7)/^^ 
 of appearance, if the writ is issued out of the London 
 office, the defendant miist_ appear there {e) ; if out of a 
 district registry, then, (1) if the defendant resides or 
 carries on business there, he nnist appear there (/) ; but 
 fl (2) if he neither resides nor carries on business there, 
 he may appear either in London or the District 
 Registry (r/). 
 
 If the defendant enters appearance in the -v^Tong 
 place, the plaintiff may proceed as in default of ap- 
 pearance. 
 
 Removal of Action from District Registry. 
 Although, however, a defendant muHt in the cases above 
 mentioned appear in a district registry, yet any defen- 
 dant may except where the writ is "specially indorsed" 
 (which is very rare in Chancery actions), and even 
 when it is specially indorsed, may, subject to certain 
 
 {c) R. S. C, Ord. XII. rr. 1, (/) lb. r. 2. 
 
 la, 3. (//) lb. r. 3.
 
 APPEARANCE. 67 
 
 limitations, as of right after appearance, and before 
 delivering his statement of defence, remove the action 
 to the London office (//), by serving on the other parties 
 to the action, and delivering to the district registrar, a 
 notice signed by himself or his solicitor, to the effect 
 that he desires the action to bo removed to London. 
 If, however, a judge or the court is satisfied that the 
 defendant giving such notice is merely a formal defen- 
 dant, or has no substantial cause to interfere in the 
 conduct of the action, it may be ordered to proceed in 
 the district registry notwithstanding the notice (/). 
 
 Notice of Appearance. The officer who receives 
 the memorandum of appearance enters it in the cause 
 book (/.•), and seals the duplicate, which thereupon be- 
 comes a certificate of due entry of appearance. The 
 defendant's solicitor must, on the same day, give or post 
 to the plaintiff's solicitor, notice of entry of appearance, 
 accompanied by the sealed memorandum (/). 
 
 Although the writ names a time within which ap- 
 pearance must be entered, yet in reality the defendant 
 may appear at any time before judgment is obtained, 
 or even afterwards by leave of the court ; but in case he 
 appears after the expiration of the time limited in the 
 writ, he must on the same day give notice thereof to 
 the plaintiff or his solicitor, but ho does not gain any 
 further time for delivering his defence by appearing 
 late {m). 
 
 Notice of appearance must also be given forthu-ith by 
 a person who not being named defendant in an action 
 
 {h) lb. r. 4 ; and Orel. XXXV. (/.) Ord. XII. r. 11. 
 
 r. 11. (/) lb. r. Gb (1880). 
 
 (i) Ord. XXXV. r. 12. {m) lb. r. IT). 
 
 f2
 
 PEFESDA^fT S PRtXEEDINGS 0>* SERVICE OF WRIT. 
 
 tte recQverj of land, obtains leave to appear and 
 
 C»). 
 Affpexaaiee after Judgment. A defendant vrha 
 
 ■WT^ies to SKppear after juilgnient \and in administration 
 and other Eke actions it may sometimes be for a de- 
 fendant's advantage to do so) may obtain leave to do so 
 by petitioii of course, if the plaintiff consents ; but if not, 
 the a|j|^ication must be by summons or motion, npon 
 "wMch. no cwJar mil be made, unless tbe defendant sub- 
 mits to be bound by all prior proceedings, including the 
 jtidgment [o). 
 
 Appearance of Partners. An individual or 
 partners sued in the firm name must appear in his or 
 tbeir individual names, but the title of tbe action never- 
 theless remains the same as before (j:))- 
 
 Attaching Solicitor who breaks undertaking 
 to appear. Lastly, a soKcitor wlio has given an 
 mmtettaking to accept service of "writ and to enter an 
 appCTOMHsGe, az^ who omits to do so, is Uable to be 
 afetaelied for contempt ('/) . 
 
 SEcnoiir 2. 
 e of lafeont or Lunatic Defendants. 
 
 An appearaiMje should be entered for a defendant who 
 is an TTifaTit or lunatic (whether so foim.d or not), by the 
 person on whom the writ is properly served, or the 
 
 (») B. S. C, Ori Xn. r. 20. {p) R. S. C, Ord. XH. rr. 12, 
 
 (a.) Beh. Ch. Pr. 139. 12a. 
 
 iq) lb. r. U.
 
 APPEARANCE. 69 
 
 person to whom notice in lieu of service has been 
 properly given, as prescribed on page 59. 
 
 In the case of infants and lunatics nrA >fO found, no 
 further step in the action can be taken on their behalf, 
 until a guardian ad litem is appointed (r) ; but in the 
 case of a lunatic no found by inquisition, the action is 
 defended bj the committee of his estate, if he has one, 
 and if such committee has no interest in the subject- 
 matter of the action adverse to the lunatic. K, how- 
 ever, there is no committee, or the interest of the com- 
 mittee is adverse, then the lunatic must have a guardian 
 ad litem appointed. 
 
 Appointment of Guardian. Where a guardian 
 ad litetii is necessary, the friends of the infEint or lunatic 
 should apply for the appointment forthwith after his 
 appearance, which is done by petition of course in the 
 infant's, or lunatic's, name by his next friend, supported 
 by affidavit of his solicitor, that the proposed guardian 
 has no adverse interest to the infant or lunatic in the 
 subject-matter of the action, and that the proposed 
 guardian is a fit and proper person for the office. 
 
 Neither the plaintiff, nor any person not mijuriSj nor 
 a person out of the jurisdiction, will be appointed {%). 
 An order appointing a guardian ad litem must be left 
 at the central office or district registry for entry. 
 
 Removal of Guardian. A guardian ad litem may 
 be removed for good cause on application by summons 
 or motion, made by any person acting as next friend, 
 for that purpose, of the infant or lunatic ; and in that 
 case, or in case of the death of a guardian pendente lite, 
 
 [r] ZutsJ: utjton V. Setcell, 6 Mad. 21b ; Xftanan v. Sr-Ift, ib. 764 ; and 
 28 ; E. S. C, Ord. XVI. r. 8. see 9 Ha. Append. 27, and 13 
 
 («) Baitjeldr. Grant, 11 W. K. Jar. 776.
 
 70 defendant's proceedings on service of -writ. 
 
 a new one must be appointed, vrho (in a case of re- 
 moval) is appointed by the same order which removes 
 the old one (s). 
 
 CHAPTER II. 
 
 CONDITIONAL APPEARANCE. 
 
 Where a defendant wishes to test the legality or regu- 
 larity of the writ, or service thereof or notice in lieu of 
 service, he can only do so by application to the court {a) ; 
 and before he can apply to the court he must submit, to 
 its jurisdiction. But if he submits to the jmisdiction 
 by an ordinary appearance, he will be taken to have 
 waived all such objections (b). The proper course, 
 therefore, is for the defendant in such a case to enter a 
 conditional ajipearance {c), but this is only allowed by 
 leave of the court, which may be obtained either by 
 petition of course or ex parte motion, on the defendant 
 consenting to submit to any process which may be 
 issued against him on such appearance. As soon as 
 possible after entering a conditional appearance, the 
 defendant should take steps to test his objection to the 
 writ, or the service of it, as the case may be, or he wiU 
 be taken to have waived such objection {d). 
 
 {z) Dan. 146. (d) IFesiman v. Aktiebolagct 
 
 (a) E,. S. C, Ord. LIX. Snickfahril, L. R., 1 Ex. D. 237 ; 
 
 (i) Freston v. Lo.mont, L. R., 1 Itc Eouard, L. R., 10 Ch, D. 
 
 Ex. D. 361. ooO ; BcddiiHjton v. Bcddington, 
 
 (r) Dan. Ch. Pr. 4.59. L. R., 1 V. D. 426.
 
 DEFAULT OF APPEARANCE. 71 
 
 CHAPTER III. 
 
 DEFAULT OF APPEARANCE. 
 
 The consequences of non-appearance by the defendant 
 vary according to the nature of the action ; but as debts 
 or liquidated demands, actions for damages, or actions 
 in the nature of trover or detinue, or actions of eject- 
 ment, are not generally brought in the Chancery Divi- 
 sion, being more appropriately cognizable by the Queen's 
 Bench Division of the Court, I shall confine my re- 
 marks to those actions which are usually, or under the 
 Judicature Act, 1878, assigned to the Chancery Division. 
 
 General Practice on Default of Appearance. 
 In the Chancery Division then, "vvhere the defendant 
 does not appear within the time limited for appearance, 
 the plaintiff may, unless the defendant is an infant or 
 a person of unsound mind not so found by inquisition, 
 file an affidavit of service of the writ, and the action 
 then proceeds as if the defendant had appeared (r) . If 
 the defaulting defendant does not appear within the 
 time allowed for delivering his statement of defence, the 
 plaintiff may forthwith set the case down on motion for 
 judgment (/) ; or if some of the defendants appear, and 
 some do not, he may set it down on motion for judg- 
 ment against those making default, or may wait until 
 the hearing {g) . 
 
 Infants and Lunatics. AVhere, however, the de- 
 fendant is an infant or person of unsound mind not so 
 found, the plaintiff should apply by motion (h) for an 
 
 {r) R. S. C, Ord. XIII. r. 9. {/>) Dan. Ch. Pr. 147; Evans' 
 
 (/)R. S. C.,Ord. XXIX. r. 10. Tr. Ch. D. 586. Ncvci-thelcss, 
 (y) lb. r. 11. iu a recent case in which the
 
 72 defendant's proceedings on service of writ. 
 
 order that some proper person be assigned guardian of 
 such defendant, by whom he may appear and defend 
 the action. No such order vnR be made unless it ap- 
 pears that the vrdt was duly served, and that notice of 
 the summons was, after the time limited for entry of 
 appearance, and at least sis days before the date named 
 for the hearing of the summons, served upon or left at 
 the dwelling-house of the person ^s-ith whom or under 
 whose care such defendant was at the time of serving 
 such writ ; and also (in case of such defendant being an 
 infant not residing with or under the care of his father 
 or guardian) served uj^on or left at the dwelling-house 
 of such father or guardian, if any, unless the judge at 
 the hearing of the summons dispense with such last- 
 mentioned service (e). 
 
 Upon appearance being entered for such defendant 
 by the guardian ad litem so appointed, the action pro- 
 ceeds in the ordinary course. 
 
 Service of subsequent Proceedings. In ac- 
 tions set down on motion for judgment in default of 
 appearance, the statement of claim (if any) and notice 
 of motion for judgment should be filed "svith the master 
 of the court at the central office or with the district 
 registrar, according as the action is proceeding in 
 London or the district registr}^ (_/'), or where the de- 
 fendant has been duly served vdih the writ, they may 
 be served on him without being filed {(/). 
 
 author applied, V.-C. Hall ex- (^) R. S. C, Ord. LIII. r. 7; 
 
 pressed an opinion that such ap- Whitakcrx. Thurston, W. N. 1876, 
 
 pHcations should be by summons. 232; I)ifmoiid\. Croft, L. E., 3 
 
 {e) R. S. C, Ord. XIII. r. 1. Ch. D. 512 ; Morton \. Miller, ib. 
 
 (/) R. S. C, Ord. XIX. it. G, olC. 
 29.
 
 DEFAULT OF APPEARANCE. 73 
 
 Setting aside Judgment obtained for Default. 
 
 "Where, however, judgment has been obtained in default 
 of appearance, it may be set aside by the court or a 
 judge on suclji terms as to costs or otherwise as may 
 seem just(//). The application is usually made by sum- 
 mons, supported by affidavit, satisfactorily explaining 
 why judgment was allowed to go by default, and should 
 be made as quickly as possible. Such applications are 
 seldom granted, except on condition of the defaulting 
 defendant paying all the plaintiff's costs up to, and of, 
 the application, in addition to other terms. 
 
 It will be carefully remembered, that where the writ 
 is irregular, or has been irregularly issued or served, the 
 proper course is not to apply to set aside the judgment, 
 but to set aside the writ. 
 
 . CHAPTER IV. 
 
 INTERPLEADER. 
 
 Interpleader is the right of a defendant who is in 
 possession of property in respect of which the action is 
 brought, but who does not claim any interest in it, and 
 believes that it belongs to some third person who has 
 sued or is expected to sue for it, to insist that the plain- 
 tiff and such third person shall fight the matter out 
 between them, the defendant being ready to bring into 
 court, or to pay, or dispose of the subject-matter of the 
 action in such manner as the court or a judge may order 
 or direct. 
 
 (/O R. S. C, Old. XXIX. r. 11.
 
 74 defendant's proceedings on service of writ. 
 
 Interpleader is seldom resorted to except in actions 
 wliicli are more conveniently assigned to the common 
 law divisions, and, therefore, in a treatise on the practice 
 of the Cliancery Division it is sufficient to say, that the 
 practice is for the defendant to take out a summons re- 
 turnable in chambers, supported by an affidavit, and 
 served on the plaintiff. Upon such simimons the judge 
 may make an order calling on the third party to 
 appear and to state the nature and particulars of his 
 claim, and to maintain or relinquish his claim, and may 
 hear the allegations as well of such third party as of the 
 plaintiff, and in the meantime may stay the proceedings 
 in such action, and may finally order the third party to 
 make himself defendant in the same or some other ac- 
 tion, or to proceed to trial on one or more issue or issues, 
 and may also direct which of the parties shall be plain- 
 tiff or defendant in such trial. With the consent of 
 the plaintiff and such third party, their counsel or 
 attorneys {or, where the subject-matter in dispute is of 
 small value, or, the question is one merely of law, and 
 not of fact, then without any such consent), the judge 
 may dispose of the merits of their claims, and determine 
 the same in a summary manner, and make such other 
 orders therein as to costs and all other matters as may 
 appear to be just and reasonable {a). 
 
 The judge may, if the third party refuses or neglects 
 to comply with any order, declare his rights to be ban-ed, 
 except as against the plaintiff (6), and may, at any stage, 
 refer the matter into com-t instead of chambers {c) ; and 
 where there is a question of law too important to be 
 
 [a] 1 & 2 Will. 4, c. 58, s. 1, 24 Vict. c. 126, ss. 14, 15. 
 applied to Chancerj- Division by (i) lb. sect. 3. 
 
 R. S. C, Ord. I. r. 2 ; aud 23 & (c) lb. sect. 5.
 
 TROCEEDINGS TO BIND PERSON NOT PARTY TO ACTION. 75 
 
 decided summarily, and no dispute as to facts, may order 
 a special case to be stated (d). 
 
 CHAPTER V. 
 
 PROCEEDINGS TO BIND A PERSON NOT A PARTY TO AN 
 ACTION. 
 
 Where a defendant claims to be entitled to contribu- 
 tion or indemnity, or any other remedy or relief over 
 against any other person, or where from any other 
 cause it appears that a question in the action should be 
 determined, not only as between the plaintiff and the 
 defendant, but as between the plaintiff, defendant, and 
 any other person, or between any or either of them, the 
 court or a judge may, on notice being given to such 
 last-named person, make such order as may be proper 
 for having the question determined (e). 
 
 Effect of bringing in a Third Party. The 
 bringing in of a third party under this rule does not 
 alter the rights of the plaintiff against the defendant, ^ 
 nor give the plaintiff any rights against the third party, 
 nor the third party any rights against him (/) ; nor does 
 it enable a defendant to obtain actual present relief. 
 The sole effect is to bind the third party not to dispute 
 the validity of the proceedings, with a view to obtaining 
 future relief against him (g). 
 
 {(l) 23 & 24 Vict. c. 126, s. l.J. {ff) Fadwick v. Scott, L. R., 2 
 
 \e) R. S. C, Ord. XVI. r. 17. Cli. D. 736 ; Warner v. Ticinwg, 
 
 (/) Williams v. S. E. Rail. Co., 24 W. R. 536. 
 L. R., 26 W. R. 3.32.
 
 76 defendant's pkoceedings on service of writ. 
 
 Method of bringing in Third Party. A de- 
 fendant wishing to bring in a third party under this 
 rule shoidd get the leave of the court (obtained on 
 motion, of which notice must be given to the plain- 
 tiff (d) ) to serve the third party with a notice, sealed 
 by the proper officer with the seal with which -^Tits of 
 summons are sealed. A copy of such notice must be filed 
 with the proper officer, and the notice served (together 
 with a copy of the statement of claim, or where none 
 has been delivered, with a copy of the writ) on the third 
 party, in Kke manner as a WTit of summons is served (e). 
 
 If the person so served, desires to dispute the plaintiff's 
 claim in the action as against the defendant on whose 
 behalf the notice has been given, he must enter an 
 appearance in the action within eight days from the 
 service of the notice. In default othis doing so, he 
 will be deemed to admit the validity of the judgment 
 obtained against such defendant, whether obtained by 
 consent or otherwise ; but a person making such default 
 may still apply to the court or a judge for leave to 
 appear {/). 
 
 If, however, he does appear, the defendant may apply 
 to the court or a judge for directions as to the mode 
 of having the question in the action decided, and 
 the court or judge may, upon the hearing of such 
 application, if it appear desirable, give the thii"d party 
 liberty to defend the action, upon such terms as may 
 seem just, and may direct such pleadings to be de- 
 livered (g) or amended, and generally direct such pro- 
 ceedings and give such directions as shall seem proper 
 
 [d) Wye Valley Rail. Co. v. (/) lb. r. 20. 
 
 Uawes, L. R., 16 Ch. D. 489. (y) See Withain v. Vane, 2S 
 
 {() R. S. C, Ord. XVI. r. 18. AV. R. 276.
 
 PROCEEDINGS TO HIND PERSON NOT PARTY TO ACTION, 77 
 
 for having the question most conveniently determined, 
 and as to the mode and extent in or to whicli the third 
 party sliall be bound or made liable by tlie decision of 
 the question (//). 
 
 At present it does not seem to be well settled whether 
 or not a third party brought in can in his turn bring in 
 a fourth (/) ; but where a defendant claims contribution, 
 indemnity, or the like, against a co-dcfendantx it is not 
 necessary to get leave to serve him with the notice 
 above mentioned. In such a case it is sufficient to 
 serve him with a copy of the defence (/i-) . 
 
 (/i) E. S. C, Orel. XVI. r. 21. Knoop, 30 L. T. 219. 
 ((■) Compare Walker \. Balfotir, [k) Funiess v. Bootli, L. R., 4 
 
 26 W. R. 511 ; and Foider v. Cli. D. 586.
 
 ( '8 ) 
 
 Sub-division III. 
 The Pleadings. 
 
 ChAPTEE I. — PRELIiaXAEY. 
 
 Chaptee II. — Specific Pleadings of Fact. 
 Section 1. — Statement of Claim. 
 
 2. — Statement of Defence and Counter-claim. 
 3. — Hephj and subsequent Fleadings. 
 Chaptee III. — DEiruEEEES. 
 
 Chaptee IV. — iloviNG ox Admissions in an Adveesaey's Pleading. 
 Chaptee V. — Amendjeent of Pleadings. 
 Chaptee VI. — Default of Pleading. 
 Chapter VII. — Discontintjance. 
 
 CHAPTER I. 
 
 PRELIMINARY. 
 
 A PLEADING is the wTitten or printed statement of a 
 litigant's demand or claim, or of his defence or answer 
 thereto, or of the reply to such defence or answer. 
 
 Pleadings formerly consisted of a bill and answer, 
 and sometimes a replication ; but since the Judicature 
 Acts came into operation they consist of — (1) A state- 
 ment of claim by the plaintiff ; (2) A statement of 
 defence or a demurrer by the defendant ; and (3), A 
 reply or demurrer by the plaintiff. No pleading sub- 
 sequent to a reply is allowed except by special leave of 
 the court or a judge obtained on summons {a). The 
 
 {a) R. S. C, Ord. XXIV. r. 2.
 
 PRELIMINARY. 79 
 
 object of pleadings is to arrive at an issue, either of 
 fact or law, or both ; that is to say, to arrive at some 
 point at which one party affirms a proposition of fact or 
 a proposition of law which the other denies. When 
 the denial is a denial of fact, it is called a statement of 
 defence or reply, as the case may be. When it is a 
 denial of law, it is called a demurrer. 
 
 Printing of Pleadings. Every pleading which 
 contains less than ten folios of seventy-two words each, 
 (every figure being coimted as one word) may be eitlier 
 printed or written, or partly printed or partly written, 
 and every other pleading must be printed (/.*). Plead- 
 ings must be printed upon cream wove machine drawing 
 foolscap folio paper, 19 lbs. per mill ream or there- 
 abouts, in pica type, leaded, with an inner margin about 
 three-quarters of an inch wide and an outer margin 
 about two and a half inches wide {c). 
 
 Counsel's Signature. It is usual, but not now 
 compulsory (d), for pleadings in the Chancery Division 
 to be signed by the counsel by whom they have been 
 settled, where they have (as is almost universally the 
 case) been settled by counsel. It is very desirable that 
 this custom should be observed, as not only do some 
 of the judges object to its non-observance, but it gives 
 the other side notice of the counsel by whom theii* op- 
 ponents will be represented, and thus often renders it 
 possible for the opposing counsel to settle between them- 
 selves trifling matters of procedure which might other- 
 wise be the occasion of expensive wrangling. 
 
 Delivery of Pleadings. Every pleading is de- 
 livered by the pleading party to the solicitor of every 
 
 (/;) R. S. C, Ord. XIX. r. T). (^0 R. S. C, Orel. XIX. i: -1. 
 
 (c) R. S. C, Ord. LVI. r. 2.
 
 80 THE PLEADINGS. 
 
 other party who appears by a solicitor, or to the party 
 personally if he does not appear by a solicitor ; but 
 if no appearance has been entered by any party, then 
 such pleading is filed with the proper officer at the 
 central office or district registry, as the case may be (r) . 
 Let us now examine the different pleadings in detail. 
 
 CHAPTER II. 
 
 SPECIFIC PLEADINGS OF FACT. 
 
 Section 1. 
 
 Statement of Claim. 
 
 Rule as to Delivery of Claim. The plaintiff 
 onay, if he think fit, at the same time as, or at any time 
 after, the service of the ^\Tit of summons, and he mus^t 
 within six weeks from the time of the defendant's entry 
 of appearance (unless the defendant, upon entering ap- 
 pearance, states that he does not require it) deliver to 
 the defendant a statement of his complaint, and of the 
 relief or remedy to which he claims to be entitled (/). 
 But where a plaintiff delivers a statement of claim with- 
 out being required so to do, and such delivery is un- 
 necessary or improper, he may have to pay the costs 
 occasioned thereby {g) . 
 
 With regard to this, it may be laid down as a general 
 rule, that where there is no question of fact or law to 
 
 {e) R. S. C, Ord. XIX. r. G. (f/) R. S. C, Ord. XXI. r. 1. 
 
 (/) lb. r. 1 ; and Ord. XXT. This mlo appears to bo self-con- 
 r, 1. tradictorj-.
 
 SPECIFIC PLEADINGS OF FACT. 81 
 
 be determined (as, for instance, in a creditor's adminis - 
 tration action, wliero the only thing to be done is to 
 ascertain tho debts and distribute the assets), a state- 
 ment of claim is improper; for the object of pleadings 
 being to raise some issue or dispute of fact or law, it is 
 obviously useless to employ them where no such dispute 
 can arise. But where the rights of parties under an 
 iustrmiient have to be ascertained, or any question of 
 construction arises, or where trusts have to be carried 
 out, a statement of claim is desirable, because it brings 
 clearly before the court the points of law on which the 
 opinion of the court is desired {h) . 
 
 Form. The following is tho form of a statement of 
 claim : — 
 
 1876. E. No. 233. 
 lu the High Court of Justice. 
 Chaucery Division. 
 V.-C. Hall. 
 
 Writ issued 22nd Doocmber, IS 76. 
 
 Between John Briggs Blaintiff, 
 
 and 
 Thomas Jones Defendant. 
 
 Statement of Claim. 
 Delivered the day of , 1876, Ly Charles Smith, of No. r.OO, 
 Southampton Row, in the county of Middlesex, agent for Alfred 
 Robinson, of No. 300, High Street, in the city of Exeter, .solici- 
 tor for the above-named plaintiff. 
 1. By indenture dated the 25th of March, 1873, and made betwcou 
 the defendant of the one part, and the plaintiff of the other part, in 
 consideration of the sum of 500/. lent by the plaintiff to tho defen- 
 dant, the defendant granted to the plaintiff and his heirs, a messuage 
 or dwelling-house, with its appurtenances, situate in High Street, 
 in the city of Exeter, and being No. 200 in the said street, subject to 
 a proviso for redemption of the same premises on payment by the 
 
 {h) Breton v. MacJcctt, W. N. Colchy, L.R., 1 Ch. D. 693 ; Tay 
 
 1875, p. 255; 2?o//csv. Coo/.-, W.N. hr v. Luckcti, W. N. 1875, p. 
 
 1876, p. 28 ; and see Gnen v. 193. 
 
 U. O
 
 82 THE PLEADINGS. 
 
 defendant, his heirs, executors, administrators or assigns to the 
 plaintiff, his executors, administrators or assigns of the sum of 500^., 
 ■with interest for the same in the meantime at the rate of ^)l. per cent, 
 per annum on the 29th day of September then next. 
 
 2. The whole of the said jirincipal sum of 500i?. Avith an arrear of 
 interest thereon remains due to the plaintiff on his said security. 
 
 The plaintiff claims as follows : — 
 
 (1) That an account may be taken of what is due to the plaintiff 
 for principal money and interest on his said security, and 
 that the defendant may be decreed to pay to the plaintiff 
 what shall be found due to him on taking such account, 
 together with his costs of this action, by a short day to be 
 appointed Ijy the court, the plaintiff being ready and willing, 
 and hereby offering, upon being paid his principal money, 
 interest and costs at such appointed time, to convey the said 
 mortgaged premises as the court shall direct. 
 
 (2) That in default of such payment the defendant may be fore- 
 
 closed of the equity of redemption in the said mortgaged 
 premises. 
 
 (3) Such further or other relief as the nature of the case may 
 
 require. 
 
 Aethxte Undeehill. 
 
 It will be seen from the above simple example, that 
 a statement of claim consists of (1) the " title " or 
 formal heading, (2) the " stating part " or statement 
 of facts npon which the plaintiff relies, and (3) the 
 "claiming part" or statement of the relief which he 
 claims. 
 
 1. The Title. As to the formal parts, they are like 
 those of the writ, viz., the reference to the cause book, 
 the name of the court, division, district registry (where 
 the writ was issued out of one), and judge, to which the 
 action is attached, the date of the issue of the writ, 
 and the names of the parties. If the action is for 
 the administration of the estate of a deceased person, 
 the words "In tlio matter of the estate of A. B. 
 deceased" must be inserted immediately above the
 
 SPECIFIC PLEADINGS OF FACT. 83 
 
 names of the parties, both in tlio writ and in the plead- 
 ings. The description of the pleading (/, c. " statement 
 of claim "), and the name and place of business of the 
 solicitor and agent (if any) delivering the same, or the 
 name and addi'ess of the plaintiff if appearing in person, 
 and the date of delivery, must also appear {d). 
 
 2. Stating part. As to the stating part, it should 
 be as concise as possible, and should consist of a statement 
 of the material facts upon which the plaintiff relies, but 
 not the evidence by which they are to be proved (e). 
 For instance, if a party sues in respect of a trespass, 
 which the defendant has admitted in a letter to the 
 plaintiff, the fact of the trespass should be stated in the 
 statement of claim, and not the letter which is the 
 evidence of the trespass (/). 
 
 The stating part sliould be divided into paragraphs, 
 each paragraph containing as nearly as may be a 
 separate allegation. Dates, sums and numbers must 
 be exp ressed in figures and not in words~(i/). 
 
 Where a plaintiif seeks relief in respect of several 
 distinct causes of HQtioii /on iided ojt, separate and distinct 
 facts, these separate and distinct facts should be stated 
 separately and distinctly, and not mixed up alto- 
 gether (A). Of course, where there are several distinct 
 kinds of relief claimed, all arising out of the same facts 
 (as, for instance, in a patent action where an injunc- 
 tion, and also an account of profits, or, in the alternative, 
 damages are all claimed), there is no jiecessity to state 
 the same facts separately. 
 
 {d) R. S. C, Ord. XIX. r. 7. v. X. i- K W. Rail. Co., L. R., 
 
 (e) lb. r. 4. 12 Ch. D. 787. 
 
 (/) Davy V. Garrett, L. E., 7 {(/) R. S. C, Ord. XIX. r. 4. 
 
 Ch, D. 485 ; and see WUUanmn \h) Tb. r. P. 
 
 g2
 
 84 THE PLEADINGS. 
 
 Whenever the contents of a document are material, 
 it is sufficient to state the effect thereof as briefly as 
 possible, "vsithout setting out the whole or any part of 
 the document, unless the jirecise icords of the document or 
 any part thereof arc material (J). However, where the 
 rights of parties under a deed or will have to be deter- 
 mined, the precise words are almost always material, 
 and it is usual, and certainly convenient, to set forth 
 the document or will (except the merely formal parts) 
 thus : " A. B. late of in the county of duly made 
 and executed his last will dated the day of , 
 
 18 , which, omitting formal parts, was in the words 
 and figures following, that is to say, ' I devise,' &c." 
 
 Where any contract or relation between persons does 
 not arise from express agreement, but is to be implied 
 from a series of letters or conversations, or otherwise 
 from a number of circumstances, it is sufficient to allege 
 such contract or relation as a matter of fact, and to refer 
 generally to such letters, conversations, or circumstances 
 without setting them out in detail ; and if in such case 
 the plaintiff desii"es to rely in the alternative upon more 
 contracts or relations than are to be implied from such 
 circumstances, he may state the same in the alternative (A-). 
 
 Where, however, the language of letters is material, 
 it is usual and proper to set them out. 
 
 Wherever it is material to allege malice, fraudulent 
 intention, knowledge, or other condition of mind, it is 
 sufficient to allege the same as a fact, without setting 
 out the circumstances from which it is to be inferred (/), 
 for that would be pleading evidence. And so, again, 
 where it is material to allege notice of a fact, it is suffi- 
 cient to allege such notice as a fact, and not to set forth 
 
 (0 E. S. C, Orel. XIX. r. 24. (0 lb. r. 25 ; Eerrbig v. Bis- 
 
 (/.) lb. r. 27. choffxheim, W. N. 1S7C, p. 77.
 
 SPECIFIC PLEADINGS OF FACT. 85 
 
 tlio form or terms of notice, unless the precise terms of 
 such notice are material (w). 
 
 And it would seem that this rule applies, oven in 
 eases of implied notice, as such notice is in reality 
 nothing more than knowledge infeiTcd from circmn- 
 stances, which circumstances (as we have already seen) 
 need not be specified. 
 
 In spite, however, of these principles, it has been (as 
 is submitted somewhat inconsistently) held, that a 
 pleading should not contain conclusions of law drawn 
 from facts (;/). It certainly seems that allegations of 
 malice, notice, or fraud, or an allegation that a series of 
 letters constitute a legal contract, are statements of 
 conclusions of law, and if so, it is difficult to reconcilo 
 this decision with the rules of court. 
 
 It is not necessary to allege any matter of fact which 
 the law presumes in the plaintiff's favour, or as to which 
 the burden of proof lies upon the other side (o), as, for 
 instance, consideration for a deed, or that the husband 
 of a married woman married since 1874, received assets 
 with her sufficient to satisfy the plaintiff's demand {j)). 
 3. Claiming part. The claiming part must state 
 specifically the relief which the plaintiff claims, cither 
 simply or in the alternative {q), and may also ask for 
 general relief {i.e., "such further or other relief as the 
 nature of the case may requii-e ") ; under which latter 
 claim, any omission in the specific claims (which is con- 
 sistent with them(r)) may be rectified (s). If it is 
 
 (;«) R. S. C, Ord. XIX. r. 26. L. R., 13 Ch. D. 811. 
 
 (h) Per Mellish, L. J., Watson (</) lb. r. 8. 
 
 V. liodwell, 45 L. J., Ch. 746; {>■) Cargill\. Bower, Ij. E., 10 
 
 WilUamson v. L. % N. W. Rail. Ch. D. 502. 
 
 Co., L. R., 12 Ch. D. 787. («) Breslaucr v. Barwkk, 24 W. 
 
 (o) R. S. C, Ord. XIX. r. 28. R. 901. 
 
 {p) See Mattheics v. Whittle,
 
 86 THE PLEADINGS. 
 
 proposed that tlio action should be tried at the assizes 
 instead of in London, a note to that effect must be 
 appended at the foot of the claim (/). 
 
 Section 2. 
 
 Statement of Defence and Counter-claim. 
 
 Time for Delivery. Where a statement of claim 
 is delivered, the defendant must deliver a statement of 
 defence within eight days from the delivery of the state- 
 ment of claim, or from the time limited for appearance, 
 whichever shall be last, unless such time is extended by 
 the court or a judge. And where a defendant has 
 appeared, and stated that he does not require any state- 
 ment of claim, and to whom no statement of claim has 
 been delivered, he may, but is not bound to, deliver a 
 statement of defence at any time within eight clays after 
 appearance, unless such time is extended by the court or 
 a judge {u). 
 
 Title. The formal parts of the statement of defence 
 are exactly like those of the statement of claim, mth the 
 exception that the date of the issue of the writ is not stated. 
 
 The stating part is also subject to the same rules as 
 the stating part of the statement of claim. 
 . Denial of Facts alleged in Claim. It is not suf- 
 ficient for a defendant to deny generally, or to refuse to 
 admit generallj^ the facts alleged in the plaintiff's state- 
 ment of claim, but he must deal specifically with each 
 allegation of fact of which he does not admit the truth {v) ; 
 , and where he denies an allegation of fact, he must not do 
 
 (0 E. S. C, Ord. XXXVI. r. 1 ; (c) K. S. C, Orel. XIX. r. 20 ; 
 
 Eedmayne v. VauyJian, 24 W. R. and sec Jones v. Qiibui, 40 L. T., 
 
 083. N.S. 13.5; Ruttcrx. riCfjcnt^'L.'R., 
 
 in) RS.C.,Ord,XXII.rr. 1,2. 12 Ch. D. 758.
 
 SPECIFIC PLEADINGS OF FACT. 87 
 
 60 evasively {ir) ; in fact, ho must not use Avliat tho old 
 pleaders call " a negative pregnant." Thus, if it is 
 alleged that the defendant received 1,000/., it is not sufli- 
 cient for him to deny that he received 1,000/., but ho 
 must deny that he received that sum "or any other sum," 
 or else ho must set out how much of it ho did receive. 
 
 And so, when a matter of fact is alleged, with divers 
 circumstances, it is not sufficient to deny it as alleged 
 along with those circumstances, but a fair and substan- 
 tial answer must bo given. 
 
 Every allegation of fact in a statement of claim which 
 is not denied specifically or by necessary implication in 
 the statement of defence, or stated to bo " not admitted," 
 is taken to be admitted, except as against an infant, 
 lunatic or person of unsound mind not so found, and it 
 is not sufficient merely to " put the plain! iif to proof" (,r). 
 It should, however, be borne in mind that tho defendant 
 will have to pay the costs of unnecessary denials (//) . 
 
 Where the plaintiif alleges a contract, a bare denial 
 of the contract by the defendant is construed only as a 
 denial of the making of the contract in fact, and not of its 
 legality or sufficiency in point of law, whether with re- 
 ference to the Statute of Frauds, or otherwise (~) ; and, 
 indeed, it would seem that where tlie Statute of Frauds 
 is pleaded, the facts must be stated which arc alleged to 
 bring the case within the statute (a) . 
 
 And so, a defence founded on fraud, the Statute of 
 Limitations, a release, or any other plea " in confession 
 and avoidance," must be specifically pleaded, and will 
 not be proveable under a mere denial of liability, unless, 
 of course, such facts appear by the statement of claim, 
 
 {iv) lb. r. 22; TUdesh/v. Harper, (y) R. S. C, Orel. XXII. r. 4. 
 
 L. R., 10 Ch. D. 393. (--) R. S. C, Ord. XIX. r. 23. 
 
 (.r) R. S. C, Ord. XIX. r. 17 ; («) FkUch v. iS»eh(s, 48 L. J. 
 
 JIarrisv. Gamble, L. R., 7 Ch. D. 394 ; Clarke v. Callow, 46 L. J. 
 
 877. ■');! ; Jrakclrc v. Paris, 2') W. R. GO.
 
 88 THE PLEADINGS. 
 
 in which case there is no need for the defendant to allege 
 them (b). 
 
 Several grounds of Defence. It is competent 
 for a defendant to plead any number of distinct defences, 
 so long as they are not actually inconsistent mth one 
 another (c). 
 
 Denial of Plaintiff's representative capacity. 
 If a defendant wishes to deny the right of the plaintiff 
 to claim as an executor, or as a trustee, or in any repre- 
 sentative, or other alleged, capacity, or wishes to deny 
 the constitution of any partnership firm, he must do so 
 specifically (d). 
 
 Defence arising after Action brought. Lastly, 
 any ground of defence which has arisen after the com- 
 mencement of the action, may be pleaded either alone or 
 with any other ground of defence ; and if it has arisen 
 after the defence has been dehvered, or the time for de- 
 livering a defence has expii'ed, the defendant may, within 
 eight days after such new matter has arisen, by leave of the 
 court or a judge (obtained on summons), deliver a further 
 defence setting it up (c) . But, in such case, the plaintiff, 
 if he confesses that such defence is a bar to him, may 
 abandon his action by delivering a confession in the fol- 
 lowing form, and may thereupon sign judgment for his 
 costs up to that date (/) : — 
 
 In the High Court of Justice. 1881. B. No. 300. 
 
 Chancery Division. 
 V.-C. HaU. 
 
 Between John Brown Plaintiff, 
 
 and 
 
 Thomas Jones Defendant. 
 
 The plaintiff confesses the defence stated in the paragraph of 
 the defendant's statement \_or further statement] of defence. 
 
 [b) K. S. C, Ord. XIX. r. 18 ; G Q. B. D. 302. 
 
 Daiikim v. Lord Penrhyn, L. E., {d) R. S. C, Ord. XIX. r. 11. 
 
 4 App. Ca. 59. (e) R. S. C, Ord. XX. rr. 1, 2. 
 
 (c) R. S. C, Ord. XIX. r. 9; (/) lb. r. 3. 
 and Haivkeshjv. Bradshaic, L. R.,
 
 SPECIFIC rLEABTNGS OF FACT. 89 
 
 Counter-claim. In addition to or substitution for 
 a statement of defence, a defendant may deliver a 
 " counter-claim," claiming relief against the plaintiff in 
 respect of some right or claim of the defendant, whether 
 sounding in damages or not, and such counter-claim has 
 the same effect as a statement of claim in a cross-action, 
 60 as to enable the court to pronounce a final judgment 
 in the same action both on the original and on the 
 cross-claim. But the court or a judge may, on the ap- 
 plication of the plaintiff, before trial, if the counter- 
 claim cannot bo conveniently disposed of in the action, 
 or ought to be made the subject of a separate action, or 
 ought not to be allowed, refuse to allow the defendant 
 to use it {g). 
 
 This application should, it would seem, be by motion . 
 A c ounter-cla im wiUnotTe allowed to stand if quite 
 unconnected with tlio original action (//). 
 
 The counter-claim and statement of defence form one 
 document, but it is essential that the defendant should 
 separate the statements intended as defences from the 
 statements upon which it is intended to rely by way of 
 counter-claim, and to state specifically which facts are 
 intended to be used by way of counter-claim (?'). 
 
 In fact the counter-claim must be as specific and self- 
 contained as a statement of claim (/.) . It is, therefore, 
 proper to finish the statement of defence, and then to 
 add, " and by way of counter-claim the defendant states 
 as foUows." 
 
 {g) lb. r. 3, and Ord. XXII. (i) R. S. C, Ord. XIX. r. 10 ; 
 
 r. 9 ; Huggcns v. Tweed, L. R., 10 Crave v. Barnieot, L. R., G Ch. D. 
 
 Ch. D. 359. 753 ; Lees v. Fatterson, L. R., 7 
 
 (A) Xaglor v. Farrcr, W. N. Ch. D. 868. 
 
 1878, p. 187 ; McLag v. Sharp, {k) HoUowag v. YorJc, W. N. 
 
 W. N. 1877, p. 21G. 1877, p. 112.
 
 90 THE PLEADINGS. 
 
 Where the Scame facts have to be alleged for the 
 counter-claim as for the defence, it is not necessary to 
 set them out anew, hut is sufficient to state that by way 
 of counter-claim " the defendant repeats the statements 
 contained in paragraphs 1, 2," &c. (/). 
 
 The rules in relation to the statements in statements 
 of claim are equally applicable to those in counter- 
 claims. 
 
 The question has arisen more than once whether a 
 counter-claim has the effect of an independent action, or 
 whether it is not entirely subsidiary to the action in 
 which it is pleaded. For instance, if the original action 
 is dropped, does the counter-claim fall with it, and is a 
 counter-claim pleadable in respect of matters which have 
 arisen subsequent to the issue of the writ of summons ? 
 On this point the law is at present far from clear : the 
 Master of the Rolls holding that the counter-claim is 
 part of the original action and falls with it, and can 
 only be pleaded to facts occurring before the writ was 
 issued (w). Mr. Justice Fry, on the other hand, and 
 some of the common law judges, taking the contrary 
 view {n) . The argument for either view is of consider- 
 able weight, and it is difficult to express any opinion as 
 to which the Court of Appeal may eventually hold to be 
 correct; but it would seem that the words of the act and 
 rules favour the contention of the Master of the Kolls, 
 whereas the \iew of Mr. Justice Fry is more consistent 
 with convenience and with that desu'e to prevent mul- 
 
 (l) JBirmingham Estates Co. v. pool, ^-c. Co. v. Gibb, 5 ib. 713. 
 
 Smith, L. E., 13 Ch. D. 507; («) Jicddall v. jUaitland, Jj. H., 
 
 Green v. Sevin, ib. 589. 17 Ch. D. 174 ; Wlnterficld v. 
 
 (?«) Vavaseur v. Kr/ipp, L. R., Jiradnum, L. R., 3 Q. B. D. 324; 
 
 15 Ch. D. 474 ; Original Ilarlk- Siooke v. Tcujlor, 5 ib. 5G'J.
 
 SPECIFIC TLEADINGS OF FACT. 91 
 
 tiplicity of suits and unnecessary litigation which is a 
 distinguishing feature of the Judicature Acts. 
 Third Parties brought in by Counter-claim. 
 
 Where a defendant by his defence sets up any counter- 
 claim which raises questions between himself and the 
 plaintitf along with any tliird person, he must add 
 to the title of his defence a further title, similar to the 
 title in a statement of claim, setting forth the names of 
 all persons who, if such counter-claim were to be en- 
 forced by cross action, woidd be defendants to it, and 
 must deliver his defence to such of them as are parties 
 to the action, within the period within which he is 
 required to deliver it to the plaintiff (o). 
 
 Where any such third person is not a party to the 
 action, he must be summoned to appear, by being 
 served with a copy of the statement of defence and 
 counter-claim ; and such service is regulated by the 
 same rules as exist with respect to writs of summons. 
 The copy of the statement of defence and counter-claim 
 so served, must be indorsed with a notice to such third 
 party, thus (^j) : — 
 
 " To the within -named Arthur Hill. 
 
 " Ttike notice, that if you do not appeal' to the within counter-claim 
 of the witliin-namcd Thomas Jones witliiu S days from the service of 
 this defence and counter-claim upon you, you will be liable to have 
 judgment given against you in your absence. 
 
 " Appearances are to be entered at the Central Office, Royal Courts 
 of Justice, W.C." 
 
 Any person, not being a defendant to an action, 
 who is served with a defence and counter-claim, must 
 
 (o) R. S. C, Ord. XXII. r. 5 ; Ch. D. 73G. 
 Bear V. Siconlcr, L. R., 4 Ch. D. (p) R. S. C, Ord. XXII. r. G. 
 
 476; I'adwkkv. Scott, L. R., 2
 
 92 THE I'LEADINGS. 
 
 appear thereto as if he had been served with a writ of 
 summons {q). 
 
 This right of the defendant to bring in a third party 
 by way of counter-claim must not be confounded with 
 the right of bringing in a third party n-ho is bound to 
 indemnifij the defendant against the claim of the plaintiff. 
 The latter case has been already treated of at p. 75. 
 
 Section 3. 
 The Reply and subsequent Pleadings. 
 
 Time. A plaintiff must deliver his reply (if any) 
 wltliin tlirco weeks after the statement of defence, or the_ 
 lastjiL.tho statements of defenoe shall have beeiL_de-^ 
 liveredj unless the time is exteudod hy a judge or the 
 court (;•) . The formal parts of the reply are like those 
 of the statement of defence. 
 
 Joinder of Issue. Where the plaintiff denies all 
 the material facts alleged by the defendant by way of 
 defence (and not by way of counter-claim), he is allowed 
 to deny them generalhj, and this general denial is called 
 "joining issue;" the form being, "the plaintiff joins 
 issue on the defendant's statement of defence " (s). 
 Where, however, the plaintiff does not deny all of the 
 defendant's facts, but wishes to admit them and explain 
 away their prima, facie effect, he only joins issue on so 
 much as he denies, and pleads the explanatory facts as 
 to the rest (t), and it is then for the defendant to join 
 issue on these. 
 
 (7) R. S. C, Ord. XXII. r. 7. (s) R. S. C, Orel. XIX. r. 21. 
 
 {)■) E. S. C, Ord. XXIV. r. 1. {t) Rally. Ei-c, L. R., 4 Ch. D. 
 
 341.
 
 SPECIFIC PLEADINGS OF FACT. 93 
 
 Departure. The plaintiff must, however, in doing 
 so, be careful not to commit what is known as " a 
 departure ;" that is to say, he must not raise any new 
 ground of claim, or allege any new fact inconsistent 
 with his statement of claim (<^). In fact a reply (not 
 being a joinder of issue) must add some fact to those 
 contained in the statement of claim, in support of, 
 and not in contradiction, to them {.v). For instance, 
 plaintiff sues for breach of a contract ; defendant retorts 
 that the breach has been released by deed. It would bo 
 a departure for the plaintiff to reply that, although this 
 was so, the release was upon the terms that the defen- 
 dant should pay a sum of money equivalent to the 
 amount claimed in the action. For such would be an 
 admission that the claim for the breach of the original 
 contract, the subject of the action, was bad ; and that 
 the plaintiff was in reality trying to enforce another 
 contract altogether ( i/) . The proper com'se to be taken 
 by a plaintiff who should find that he had made a 
 mistake in claiming on the original and released agree- 
 ment, would be to_ani£iuLhisj3laim. 
 
 Reply to Counter-claim. Where the defendant 
 has delivered a counter-claim, it is not open to the plain- 
 tiff to join issue on it, or to deny generally the facts 
 contained in it ; for a counter-claim has the same in- 
 cidents as an original statement of claim, and must be 
 replied to specifically (~). 
 
 In fact, a reply to a counter-claim has all the incidents 
 
 («) R. S. C, Ord. XIX. r. 19. (;) R. S. C, Ord. XIX. r. 20; 
 
 (.i) Brcslauer v. Barwick, 24 Benboiv v. Low, L. R., 13 Ch. D. 
 W. R. 901. 553 ; aiidjUtMioL^iafficicntioxe- 
 
 {ij) See Collanihcll v. Fl'ajht, ppgt, J^y— way-nf rofci-^ncCr thci 
 W. N. 1877, p. 125. statcmcD t of claim . Gncn\.Sevbi,\ 
 
 ibTsSO.
 
 94 THE PLEADINGS. 
 
 of a defence to an original statement of claim, including 
 the pleading of new matter which has arisen subse- 
 quently to the commencement of the action [a), and 
 instead of the plaintiff joining issue on it, it is for the 
 defendant to join issue on his reply. 
 
 Pleadings subsequent to Reply. No pleading 
 is allowed subsequent to a reply without special leave, 
 except a joinder of issue, and such leave is usually only 
 granted on terms {b). 
 
 Every pleading subsequent to a reply must be de- 
 livered within four days after the dehvery of the pre- 
 vious pleading, unless the court or a judge extend the 
 time (c). 
 
 Close of Pleadings. So soon as either party has 
 joined issue upon any pleading of the opposite i)arty 
 simply, without adding any further or other pleading 
 thereto, the pleadings as between such parties is con- 
 sidered to be " closed " ((/) ; and they arc also considered 
 to be closed by default of pleading (e). 
 
 CHAPTER III. 
 
 DEMURRERS. 
 
 A DEFENDANT instead of delivering a statement of de- 
 fence or subsequent pleading, and a plaintiff instead of 
 a reply, or subsequent pleading, may " demm* " to his 
 opponent's previous pleading, or to any part of it (/) . 
 
 {a) E. S. C, Ord. XX. rr. 1, 2. (c) E. S. C, Ord. XXIX. r. 12. 
 
 (i) R. S. C, Ord. XXIV. r. 2. (/) R. S. C, Ord. XXVIII. 
 
 (c) lb. r. 3. r. 1. 
 {d) R. S. C, Ord. XXV.
 
 nEMURRERS, 05 
 
 The "demiHTcr" is dorivcd from the Latin druiorari, 
 and signifies a stoppage in pleading, and is in the 
 nature of an allegation that, admitting the facts in the 
 previous pleading to be true, yet they do not show any 
 cause of action or ground of defence (as the case may 
 be) to which effect can be given as against the party 
 demurring. 
 
 A demurrer must state specifically whether it is to the 
 whole, or to a part only, and, if so, to what part, of the 
 pleading demurred to, and must state some ground in 
 law for the demurrer ; but the party demurring is not 
 limited to such ground on the hearing of the de- 
 
 The following example shows the form of a de- 
 murrer : — 
 
 1870. No. 
 In the High Com-t of Justice. 
 Chancery Division. 
 V.-C. HaU. 
 
 Smith V. Jones. 
 
 The plaintiff demurs to so much of the defendant's statement of 
 defence as alleges that the matters mentioned in paragraph 1 7 thereof 
 constitute a release, and the plaintiff says that the same is Lad in law, 
 on the ground that such alleged release is not imder seal, and on other 
 grovmds sufficient in law to sustain his demurrer. 
 
 Where, however, a party wishes to demur to part of 
 a pleading, and to answer or deny or join issue on the 
 residue of the pleading, ho must combine both demurrer 
 and answer, denial or joinder of issue, in one docu- 
 ment {h). 
 
 Demurring and Pleading together. Where a 
 party wishes not merely to demur to part, and plead in 
 answer or denial to the residue, but wishes to both demur 
 
 (<7) lb. r. 2. (A) lb. r. 4.
 
 96 THE PLEADINGS. 
 
 and plead to the tcJioIe or the same pari of a pleading, 
 he must obtain special leave on summons to do so {d). 
 If the judge thinks the demiuTer reasonable, this leave 
 will be granted, or leave will be reserved to plead if^ 
 the demurrer shall be overruled {e). 
 
 Time. A demurrer is delivered in the same way 
 and within the same time as any other pleading (./), 
 and, if frivolous, a summons may be taken out to set it 
 aside with costs (g). 
 
 Entry for Argument. A demurrer is what is 
 called "a dilatory proceeding," that is, it has a tendency 
 to delay matters, and, consequently, in order to prevent 
 this as much as possible, all demurrers are heard as 
 quickly as may be, and do not wait imtil the hearing 
 of the action. Thus either party may enter a demurrer 
 for argument immediately (which is done by leaving a 
 memorandum of entry with the registrar), and must on 
 the day of such entry give notice of it to the other 
 party; and if a demun-er is not entered and notice 
 given within ten days after delivery, and if the party 
 whose pleading is demurred to does not obtain and 
 serve on the other party within such time leave to 
 amend his pleading, the demurrer is held to be allowed 
 without argument (//). 
 
 Briefs and Argument. When the demuri'er has 
 been set down, both sides instruct theu' counsel with 
 copies of the pleadings and the demurrer and counsel's 
 opinion (if any). A copy of the pleadings and demurrer 
 
 {(l) R.S.C.Ord. XXVIII. r.o. Ch. D. 112. 
 
 {e) Ih.; and see Hell V.Wilkin- {g) E. S. C, Onl. XXVIII. 
 
 son, 20 W. R. 275. r. 2. 
 
 (/) R S. C, Ord. XXVIII. (/<) lb. r. G. 
 r. 3 ; Hodges v. Hodges, L. R., 2
 
 DEMURRERS. 97 
 
 is also left with the officer of the court who sits beneath 
 the judge, for the use of the judge. 
 
 When the day arrives for the argument the demurrer 
 is called on, and the counsel for the demurring party 
 urge their objections to, and the coimsel for the other 
 party defend the pleading demurred to,. and one of the 
 counsel for th e demurring party replies, and the judge 
 then delivers his decision. 
 
 In the argument of a demurrer all allegations of fact 
 are taken to be admitted, but not, it would seem, 
 allegations of fraud or other intention (/). 
 
 Demurrer allowed. If the judge allows the de- 
 murrer to the iciiolc of a statement of claim, then, unless 
 the plaintiff sees his way to make out a materially 
 different case, and obtains leave to amend his pleading 
 accordingly (which is rarely refused where there is any 
 reasonable ground), the action is practically at an end, 
 and, unless the court orders otherwise, the plaintiff 
 must pay to the demurring defendant the costs of the 
 action (k). This is often the case where an action is 
 brought to test the validity of a claim founded on the 
 disputed construction of a document, or where all the 
 facts on both sides are admitted, but the legal result of 
 those facts is in dispute. For it is obvious that when 
 the disputed construction or the legal result of the facts 
 is determined, as it is determined on the hearing of the 
 demun-er, it is useless to go to trial for the purpose of 
 proving facts which were never in dispute, and which 
 when proved would avail nothing. It is, however, 
 necessary, even in that case, to move pro forma for 
 judgment, as the decision of the demurrer is technically 
 
 (0 Kcshitt V. Bcvriihjc, 9 Jar., (/.) II. S. C, Onl. XX VII I. 
 
 N. S. 1014. r. 9. 
 
 U. H
 
 98 
 
 THE PLEADINGS. 
 
 only like the verdict of a jury, i. c, a decision as to tlie 
 issues or points in dispute, and it still remains for the 
 com't to give judgment just as it does where no points 
 are disputed at all. 
 
 Where a demurrer is allowed to apart only of a state- 
 ment of claim, or to the whole or a part only of a defence, 
 reply or other pleading, then (subject to the court allow- 
 ing an amendment of the pleading or part of the pleading 
 demurred to) the matter demurred to is taken to be 
 struck out of the pleading, and the rights of the parties 
 continue the same as if it had never been pleaded (/) ; 
 but the unsuccessful party (unless the court orders other- 
 wise) has to pay to the successful one the costs of the 
 demurrer (;;?). 
 
 The practical result is, that where the iclioh of a de- 
 fence or other subsequent pleading is demurred to 
 successfully, and no leave to amend it is given, the 
 pleading party stands in the position of never having 
 pleaded a defence or subsequent pleading, as the case 
 may be, at all; and, as we shall see hereafter, the plain- 
 tiff is at liberty to move for judgment for default of 
 pleading (;<). 
 
 And, similarly, if the whole of a reply is demurred to 
 successfully, the statements of the defence are taken to 
 be admitted, and the pleadings to be closed, the effect of 
 which will be seen hereafter. 
 
 Where, however, only part of a pleading is demuiTed 
 to successfully, that part only is struck out, and the residue 
 of tlio pleading remains as before. 
 
 Demurrer overruled. Where a demuiTcr is over- 
 ruled, tlie demurring party must pay to the opposite 
 
 (/) R. S. C, Ord. XXVIII. (//,) lb. r. S. 
 
 *■• 10. («) li. s. c, Old. XXIX. r. 10.
 
 DEMURRERS. 99 
 
 party tlio costs occasioned by the demurrer, unless the 
 court directs otherwise (o) ; but the court may make such 
 order, upon such terms as shall seem right for allowing 
 the demurring party to raise by pleading any case he 
 may be desirous of setting up in opposition to the matter 
 unsuccessfully demurred io{p); and it would seem that, 
 subject to compensating the opposite party, and doing 
 his best to press the action on, he is entitled to this in- 
 dulgence (</). 
 
 Where, however, no such leave is asked for or granted, 
 the result of a demurrer being overruled is, that there is 
 no denial of the facts contained in the previous pleading 
 of the opposite party; and such party may move for 
 judgment for default of pleading, or he may use the 
 admissions when the action comes to trial in ordinary 
 course. 
 
 Where the demurrer overruled is only to part of a 
 pleading, that part is taken to be admitted ; and, as we 
 shall see hereafter, the opposite party may either move 
 for judgment on that part, or may wait till the trial of 
 the action in ordinary course, and then take the facts 
 demurred to as admitted without further proof. 
 
 CHAPTEE IV. 
 
 MOVING ON ADMISSIONS IN AN ADVERSARY'S PLEADING. 
 
 Closely allied to demurrer is the right of moving on 
 admissions of fact in the pleadings, for an order for 
 relief in respect of such admissions. 
 
 Any party to an action may, at any stage, apply to 
 
 [o) E. S. C, Ord. XXVIII. (y) Iklls. 7r,7/a«sw;, 20 W. R. 
 
 r. 11. 27'). 
 
 (;;) lb. r. 12. 
 
 h2
 
 100 THE PLEADINGS. 
 
 the court or a judge for such order as he may be 
 entitled to, upon any admissions of fact in the pleadings, 
 without waiting for the determination of any other 
 question (if any {a)) between the parties {h). 
 
 Such application is made by motion on notice in 
 the ordinary way, and may be made so soon as the 
 right of the party applying, to the relief claimed, has 
 appeared from the pleadings ; and the court may on 
 such motion give such relief subject to such terms 
 (if any), as it may think fit (c). 
 
 The object of this rule has been explained by Sir George 
 Jessel, M. E., in the following words : " The 11th rule of 
 Order XL. enables the plaintiff or defendant to get rid 
 of so much of the action as to which there is no con- 
 troversy. That is the meaning of it. It may be that 
 the whole issue may not be in controversy, and there- 
 upon either party may be entitled to more on admissions 
 of fact in the pleadings. "What amounts to admissions 
 of fact in a pleading is defined by the 17th rule of 
 Order XIX ; ' every allegation of fact in any pleading 
 . . . . if not denied specifically or by necessary 
 implication, or stated to be not admitted in the pleading 
 of the opposite party, shall be taken to be admitted.' 
 Consequently all you have to find is no specific denial, 
 or no specific refusal to admit" ((/). 
 
 Thus, where a defendant pleads evasively, and makes 
 no specific denial of the claim, judgment may be 
 obtained against him under this rule ie). 
 
 (a) Cluttonv. Lee, 2i'W.'R.G07. argument, it will be ordered to 
 
 (b) R. S. C, Ord. XL. r. 11. go into the general paper (Ch. 
 
 (c) lb. ; and lleiheriiniion v. Reg. Notice, Ap. 1S77). 
 LongrUjg, L. R., 10 Ch. D. IC2. (rf) Tliorpv. l[uhhuorth,lj.'R,., 
 If, on the motion being made, it 3 Ch. D. GIO. 
 
 appear.^ that tLoro must bo an (e) lb.
 
 MOVING ON ADMISSIONS IN ADVERSARY'S PLEADING. 101 
 
 So, where in a suit to take the accounts of a part- 
 nership, the defendants admitted the partnership, and 
 that they had not accounted, but alleged that the plain- 
 tijff had not accounted and owed money to the firm, an 
 account was ordered to be taken of the partnership 
 dealings under this rule (/). 
 
 Indeed, where the right to the relief claimed is admitted, 
 an order may be made under this rule dispensing with 
 any further hearing, and, if necessary, reserving further 
 consideration or liberty to apply in chambers {[/). 
 
 Default in Pleading not sufficient. The ad- 
 mission, however, must be an admission on the ])Ieadi))fjs, 
 and therefore default in delivering a pleading is not 
 sufficient (//) ; although, as we have seen, where a 
 pleading is delivered, default of a specific denial in it 
 is a sufficient admission. The proper course when no 
 pleading is delivered, is to set down the case on motion 
 for judgment for default of pleading (see p. 105). 
 
 The exercise of the power given to the coiu't to make 
 orders or admissions is discretionary, and cannot be de- 
 manded as of right (?) ; but wherever it appears to be 
 just and proper on the face of the pleadings that the 
 expense and delay of a formal trial of the whole or any 
 part of the action should be dispensed with, the court 
 exercises the power. 
 
 (/) Tttrquandw. Wilson, J-i.H., (/() Litton v. Litton, L. R., 3 
 
 1 Ch. D. 85 ; Rumsey v. Ecadc, ib. Ch. D. 793 ; Gillott v. Kerr, 24 
 
 643 ; Gilbert v. Smith (partition W. E. 428. 
 
 action), L. R., 2 Ch. D. 626 ; (;) 3[cUor v. Sidtbottom, 25 W. 
 
 Burnellx. BurneU,'L.l^.,nC)x. R. 401; Pike v. Fitzgibbon, 41 
 
 D. 213. L. T., N. S. 148. 
 
 {(j) Bennett v. Moore, ib. 692.
 
 102 THE PLEADINGS. 
 
 CHAPTER V. 
 
 AMENDMENT OF PLEADINGS. 
 
 If a party finds that he has made any mistake in a 
 pleading, or wishes to add anything to it, or otherwise 
 wishes to alter it, he may, if plaintiff, do so witho ut any 
 leave once a t any time before the expiration of the time 
 1 limited for rej^ly, and before replying, or (when no de- 
 fence is deKvered) at any time before the expiration of 
 four weeks from the appearance of the defendant, or 
 where there is more than one defendant, from the ap- 
 pearance of the last who shall have appeared {a) . 
 
 Similarly a defendant may amend a counter-claim or 
 set-off (but not a defence), at any time before the expi- 
 ration of the time allowed him for pleading to the reply, 
 and before pleading thereto ; or in case there be no 
 reply, then at any time before the expiration of twenty- 
 eight days from the filing of his defence {h). 
 
 The above powers of amendment are subject to this, 
 that the opposite party may within eight days after the 
 amended pleading has been delivered, apply to the 
 court or a judge to disallow the amendment which 
 may be done upon terms or otherwise, and also that 
 no amendment can be made without leave during the 
 pendency of a demurrer {c). 
 
 But, in addition to the above-mentioned powers of 
 amendment without leave, any party may by leave of the 
 
 (a) R. S. C, Ord. XXVII. r. 2. ^<) lb. r. 4, and Ord. XXVIII. 
 
 («) lb. r. 3. r. 7.
 
 AMENDMENT OF PLEADINGS. 103 
 
 court or a judge amend at any stage of the action {d). 
 This leave should be applied for by summons in 
 chambers (c), otherwise the applicant will have to bear 
 his extra costs. 
 
 Compulsory Amendment of Scandalous or 
 Embarrassing Pleading. In addition to these 
 powers given to a party to amend his own pleading, he 
 may at any stage take out a summons to strike out 
 or amend any matter in his adversary's pleadings which 
 may be scandalous, or which may prejudice, embarrass 
 or delay the fair trial of the action, and, on such an 
 application, all such amendments will be made as may 
 be necessary for the purpose of determining the real 
 questions or question in controversy (/). 
 
 By "scandalous matter" is meant any matter imma- 
 terial to the action, which is contrary to good manners, 
 or which charges another with any offence against 
 morals or law. 
 
 Where statements of immorality, or dishonesty, and 
 so on, are material to the issue, they are of course 
 not scandalous ; but in such case they must not be 
 loose and general, but particular acts of immorality or 
 dishonesty must be charged ; for a person cannot well 
 defend himself against general and hazy charges {()). 
 A pleading is emb arrassing where it pleads evidence (//), 1 
 o r j ^aises iTrrm atgrial issnftSj"or otherwise offends against ) 
 
 [d) R. S. C, Ord. XXVII. L. T. 411. 
 
 rr. 1, 6, and see Ord. LIX. {h) Davy v. Garrett, L. R., 7 
 
 (e) Marriott v. Marriott, 26 TV. Cli. D. 473 ; As/ceiv v. iV'. .E. Hail. 
 E. 416. Co., W. N. 1875, p. 238. 
 
 (/) R.S.C., Ord. XXVII. r.l. (/) Jlcuffk v. Chamberlain, 25 
 
 iff) Mozley v. Cowie, 47 L. J., W. R. 742. 
 Ch. 271 ; Harbord v. Monk, 38
 
 104 THE PLEADINGS. 
 
 However, leave will always be given to amend, 
 unless it will work some injustice to the other side (A-). 
 
 Time. A party who has obtained leave to amend 
 forfeits the order, unless he amends and delivers the 
 amended pleading within the time named in the order, 
 or if no time is named, then within fourteen days (/), 
 unless the time is extended. 
 
 How made. The amendment is made in writing 
 in the pleading already delivered, unless the amend- 
 ment requires more than two folios to he inserted in 
 any one place, or unless the amendments are too 
 niimerous to make it convenient to have them made in 
 writing, in either of which cases the pleading as 
 amended must be reprinted («?). And whenever a 
 pleading is amended, it must be marked with the date 
 of the order, and of the day when the amendment is 
 made (u). 
 
 Effect of Amendment on Pleadings ali'eady 
 delivered. Where a plaintiff has amended his claim 
 after delivery of the defence, the defendant may either 
 deliver a new defence or obtain leave to amend his 
 former one, or rely on his original one, but in the latter 
 case the amendments ■ttdll be taken to be admitted, and 
 the defence will stand as an answer pro tanto (o). 
 
 Of course the same practice will obtain where a 
 defendant amends his defence after the delivery of the 
 reply, the plaintiff having the option of delivering a 
 new reply, of obtaining leave to amend the old.one, or 
 of relying upon the old one. 
 
 IVall, L. R., 7 
 
 {k) TUdesley\. Harper, L. R., 
 
 (;«) lb. r. 8. 
 
 lOCh. D. 393. 
 
 («) lb. r. 9. 
 
 [l] R. S. C, Ord. XXVII. rr. 
 
 (o) Boddij V 
 
 7, 10. 
 
 Ch. D. 164.
 
 DEFAULT OF PLEADING. 105 
 
 CHArTER YI. 
 
 DEFAULT OF PLEADING. 
 
 Claims for debts, detention of goods, or damages, or 
 some or all combined, or for ejectment, are not the 
 proper subjects of Chancery actions, the Queen's Bench 
 Division of the court being more suitable for adjudi- 
 cating upon them ; and, as with regard to such claims, 
 the procedure on default by a defendant in pleading is 
 different to that which obtains in other actions {a), I 
 shall not touch upon that procedure in this work. 
 
 By Defendant. In a Chancery action then (not 
 being brought in respect of any of the above matters), if 
 a defendant, or one of several defendants, who ought to 
 deliver a defence makes default in delivering one, or in 
 delivering a demurrer, the plaintiff may set the action 
 down at once on motion for judgment against such 
 defaulting defendant, or, where there are several defen- 
 dants, he may set it down at the time when it is entered 
 for trial against the other defendants {b) . 
 
 The effect of this is, that there is no trial of the action 
 at all. The action, however, goes into the ordinary list 
 of actions for trial, and comes on in its turn, but no 
 evidence is necessary, and the action is treated as if the 
 statement of claim were true and uncontradicted ; and 
 such judgment is given, as, upon the statement of claim, 
 the coui't may consider the plaintiff to be entitled to. 
 In fact the action is treated as if the issues of fact had 
 been tried before a juiy and found in favour of the 
 plaintiff, and the latter had then set down the action on 
 motion for judgment. 
 
 («) R. S. C, Ord. XXIX. rr. 2-8. (A) lb. rr. 10, 11.
 
 106 THE PLEADINGS. 
 
 However, any judgment by default may be set aside 
 by a court or a judge on sucb terms as may seem just 
 to him (f). 
 
 By Third Party. Where a third party is brought 
 in, and makes default in pleading, the opposite party may 
 apply for such judgment as he may appear to be entitled 
 to. It is apprehended that this application should be 
 made by an ordinary motion (or in very light eases by 
 summons) ; and upon the application, such judgment 
 may be given, and may be ordered to be entered, or 
 such other order may be made as may be necessary to do 
 complete justice (d). 
 
 By Plaintiff. Where a plaintiff fails to reply, or a 
 defendant to deliver a subsequent pleading, within the 
 proper time, the pleadings are closed at the expiration 
 of that time, and the facts stated in the last pleading 
 are taken to be admitted (e). 
 
 It would seem that a defendant cannot move for 
 judgment on his counter-claim if the plaintiff discon- 
 tinues the action ; and, if this is good law, it would seem 
 to follow that he cannot do so where the plaintiff simply 
 makes default in pleading to it, the counter-claim not 
 being an independent action, but merely a mode of 
 cutting down the plaintiff's claim (/). 
 
 If a plaintiff, being bound to deliver a statement of 
 claim, does not do so within the prescribed time, the 
 defendant may move to have the action dismissed for 
 want of prosecution ; and on the hearing of such motion, 
 such order may be made as may scorn just {[/). 
 
 (c) R. S. C, Ord. XXIX.r. 14. L. R., 3 Ch. Div. 106; but see 
 
 {d) lb. r. 13. contra,, Si'ddanv.Jfaiaaiid, Ij.R., 
 
 {e) lb. r. 12. 17 Ch. D. 183, and Aitkin v. 
 
 ( f) Vacascur v. Krupp, L. R., iJunbar, 4G L. J., Ch. ISO. 
 15 Ch. D. 474; liolfe v. McLaren, («/) R. S. C, Ord. XXIX. r. 1.
 
 DISCONTINUANCE. 107 
 
 CIIAPTEIt VII. 
 
 DISCO:STINUANCE. 
 
 It is convenient to notice at this place the subject of 
 discontinuance of an action. The plaintiff may dis- 
 continue his action or any part or parts of his alleged 
 cause of complaint by giving a notice of discontinuance 
 to his adversary at any time before taking any further 
 step after the delivery of the statement of defence 
 (except on interlocutory application), and in that case 
 he must pay the costs of the action or of so much of it 
 as is discontinued (A) . 
 
 Discontinuance may also be effected at any other 
 stage of the action, even at or after trial, by leave of the 
 court or a judge (/). 
 
 A defendant cannot withdraw or discontinue his 
 defence or counter-claim without leave (/). Discon- 
 tinuance does not prevent the institution of a new 
 action (i). 
 
 The notice of discontinuance need not be formal — a 
 mere letter will be sufficient {J). 
 
 Leave to discontinue will not be given where it would 
 be unjust to the defendant, as where a verdict or award 
 is substantially in his favour he is entitled to judgment 
 so as to prevent the plaintiff bringing a subsequent 
 action (A-). And so also where a plaintiff has obtained 
 an interlocutory injunction, subject to paying damages 
 in case it is not confirmed at the hearing, he will not be 
 
 {h) R. S. C, Orel. XXIII. r. 1. G42. 
 
 (i) lb. {/>■) Slahhchmidt v. JTalford, 
 
 (J) The romcrania, 39 L. T. L. R., 4 Q. B. D. 217.
 
 108 THE PLEADINGS. 
 
 allowed to discontinue without paying the damages (l). 
 However, where a plaintiff discontinued a delivery of a 
 defence, the defendant was not allowed to proceed with 
 his counter-claim (/»). 
 
 A defendant may sign judgment for the costs of a 
 discontinuance {n). 
 
 (!) Newcomen v. Coulson, L. R., (»i) Vavaseur v. Krupp, L. E,., 
 
 7 Ct. D. 764. 15 Ch. D. 474. 
 
 (h) R. S. C, Ord. XXin. r. 2a.
 
 ( 109 ) 
 
 Sub-division IV. 
 Evidence. 
 
 Chapter I. — Pkelijunary. 
 Chapter II. — Evidence op Witnesses. 
 Chapter III. — Interrogatories. 
 Chapter IV. — Documentary Evidence. 
 
 CHAPTER I. 
 
 PRELIMIMARY. 
 
 "When the pleadings are closed (/. e. when either party 
 has joined issue, or when the plaintiff does not reply 
 or demur within the proper period to the defendant's 
 defence, or the defendant does not plead or demur to 
 the plaintiff's reply within the proper time) the plain- 
 tiff has to consider whether any, and if so what, evi- 
 dence it will be necessary for him to adduce at the 
 hearing. 
 
 Evidence is the proof which a party produces of the 
 truth of the material allegations of fact contained in his 
 pleadings. 
 
 Now, where no statement of defence has been de- 
 livered, then as all the statements in the claim are to be 
 taken as admitted as true (except as against infants and 
 lunatics not so found), it is obvious that no evidence is 
 required, and in such a case the action is heard without 
 evidence upon motion for judgment. And so, where other
 
 110 EVIDENCE. 
 
 pleadings are delivered besides the claim, all allega- 
 tions not denied are taken to be admitted, and conse- 
 quently no evidence is required with regard to them ; 
 and in administration actions, partition actions, fore- 
 closure actions, and so on, it will very generally be found 
 that enough is admitted by the defendant to enable the 
 plaintiff to go to the hearing without evidence, because 
 in such actions the judgment is but rarely the final 
 settlement of the dispute, being generally a mere pre- 
 liminary formality. Thus, in an administration action 
 against trustees for misapplying trust funds the judg- 
 ment would be that the trusts of the trust instrument 
 be carried into execution by the court, and that the 
 trustees do account for all sums received and paid by 
 them. 
 
 It is obvious that such a judgment could only under 
 the most exceptional circumstances be resisted, because 
 every cestui que trust is entitled to have the trust estate 
 administered by the court. The real fight would arise 
 after the judgment, when the accounts are taken which 
 were ordered by the judgment to be taken, and it is 
 then that evidence would be material. In such cases, 
 therefore, evidence is not very often necessary at the 
 hearing. However, where an infant, or a lunatic not so 
 found, is defendant, it is necessary to produce evidence 
 unless the judgment asked for is purely formal. 
 
 Affidavits of Service. However, it must not be 
 forgfjttcu that in all actions, whether the facts are 
 admitted or not, a party ought to be provided at the 
 hearing of every application by the court (except of 
 course mere ex parte ones), with an afiidavit proving 
 the service of the notice of the application on the other 
 parties ; for if tlio latter do not appear in court, either
 
 PRELIMINARY. Ill 
 
 in person or by counsel, no order will bo made, unless 
 the party making the application produces such an affi- 
 davit to the registrar in court before the rising of the 
 court on that day (a). Formerly, the party served had 
 to be prepared with an affidavit of that fact, so that lie 
 may get his costs of attendance in case the party giving 
 him the notice should fail to a]^)pear in support of his 
 application ; but this is no longer necessary (6) . 
 
 Where, however, there are material issues of fact in 
 dispute between the plaintiff and the defendant, as, for 
 instance, where the action is for an injunction for in- 
 fringement of a patent, or the creation of a nuisance, or 
 the taking away of support from land, or the like, 
 where the judgment is generally the final step in the 
 action, then evidence of the disputed facts upon which 
 each paiiy relies must be produced at the hearing. 
 
 Such evidence may conveniently be divided into three 
 groups, viz., 1st, the evidence of witnesses ; 2ndly, the 
 evidence of the opposite party elicited from him by 
 means of interrogatories ; and 3rdly, the evidence of 
 docmnents. 
 
 It forms no part of the object of this Work to give a 
 treatise on evidence. Such a treatise to be of any 
 service would be as large as the book itself. In fact, the 
 subject of evidence is one which has given rise to a 
 great many works, among which Mr. Justice Stephen's 
 scientific digest is by far the best for the purposes of 
 the student, and Mr. Taylor's learned and complete 
 treatise the most useful to the practitioner. In these 
 works will be found all questions concerning the rele- 
 vancy of evidence to the questions in issue, concerning 
 
 (rt) But query, Avliothcr this is {h) Jamcn v. Crow, L. R., 7 C'li. 
 
 now necessary, Chorlton v. Dickie, J). -110. 
 L. R., 13 Ch. D. 160.
 
 112 EVIDENCE. 
 
 primary and secondary evidence of documents, con- 
 cerning judicial notice of facts, documents, decrees, 
 judgments, and so on, and concerning presumptions, 
 competency of witnesses, and the onus of proof. 
 
 To a work like this belongs only the task of stating 
 Jiow the evidence is placed before the court. 
 
 CHAPTER II. 
 
 THE EVIDENCE OF WITNESSES. 
 
 The evidence of witnesses is given either vica voce or by 
 affidavit ; and, if viva voce, either in open court or before 
 an examiner. 
 
 In the absence of any agreement between the parties, 
 the witnesses at the trial of any action must be examined 
 viva voce in open court, but the court or a judge may at 
 any time, for sufficient reason, order that any particular 
 fact or facts may be proved by affidavit, or that the affi- 
 davit of any witness may be read at the hearing or trial 
 on such conditions as the court or judge may think rea- 
 sonable, or that any witness whose attendance in court 
 ought for some sufficient cause to be dispensed with, be 
 examined by interrogatories, or otherwise, before a com- 
 missioner or examiner. But where it appears that the 
 otlier party hond fide desires the production of a witness 
 for cross-examination, and that such witness can be pro- 
 duced, an order will not be ma(ie authorizing the evidence 
 of such witness to be given by affidavit {((). 
 
 Usual Practice. The most usual practice in the 
 Chancery Division is for the parties to agree to take the 
 
 {n) R. S. C, Old. XXXVII. r. 1.
 
 THE EVIDENCE OF AVITNESSES. 113 
 
 evidence of their witnesses by affidavit, but the witnesses 
 attend in court at the hearing, or before an examiner, 
 for the purpose of being cross-examined by the other 
 party viva voce. 
 
 The agreement to take evidence by affidavit must be 
 a formal written consent, signed by both solicitors, and . 
 not merely to be gathered from a correspondence {b). I 
 
 There is, however, one difficulty about an agreement 
 to take evidence by affidavit, viz., that, although a wit- 
 ness can be compelled to attend in court to give evidence 
 viva voce, there is no means of forcing a witness to make ' 
 an affidavit, and consequently it might happen, that if / 1 
 the agreement were irrevocable, a party might find him- 
 self left without the means of proving his case. In such 
 an event, the proper course is to ajiply by summons in 
 chambers for leave to be relieved from the agreement, 
 and to have the witness examined vied voce at the trial (c), 
 and this leave being granted, the witness can be com- 
 pelled to attend by subjxxiia. 
 
 A subpoena is a species of writ, or letter missive, from 
 the sovereign addressed to the witness, commanding him 
 to attend before the coui't, or before one of the examiners 
 of the court, or a special examiner, "to testify the truth 
 according to your knowledge in a certain action depend- 
 ing in our High Court of Justice, Chancery Di^ision, 
 wherein A, B. is plaintiff, and C. D. defendant, on the 
 part of the said A. B." 
 
 Where the witness only is required to attend, the 
 writ is called a subi)aina ad testificandum. Where he is 
 
 (J) Kew Westminster Brewery {c) Warner v. Moses, L. 11., 16 
 
 Co. V. Hannah, L. K., 1 Ch. D. Ch. D. 100. 
 278. 
 
 U. I
 
 114 EVIDENCE. 
 
 required to bring any document with liLin, it is de- 
 signated a subpcona duces tecum. 
 
 The mode of issuing this writ is to procui'e a blank 
 form at a law stationer's, fill it up, and take it, together 
 with a document called a prcecipe (which is a short me- 
 morandum or request to the proper officer to issue the 
 "«Tit), to the central office or district registry (as the case 
 may be), where it will be sealed. The party then serves 
 it on the witness, at the same time tendering his reason- 
 able travelling expenses. 
 
 Neglect to attend to a subpoena is punishable by im- 
 prisonment for contempt of com-t, or the witness may be 
 sued for the damages which the absence of his testimony 
 |may have caused. 
 
 Evidence by Affidavit. Where evidence is taken 
 by affida%it, the affidavit must be intituled like a plead- 
 ing, do-^Ti to and including the names of the parties ; 
 must be made (on pain of costs being disallowed) (d) in 
 the first person ; contain a full and true address and 
 description of the deponent {e) (/. e., the person making 
 it); and, if he be a party to the action, must state so. 
 The body of the affida\dt is divided into paragraphs, 
 each paragraph as far as possible confined to a distinct 
 portion of the subject (/), and should, if well drafted, 
 be a clear and unambiguous account of the %ritness's 
 story. In affidavits to be used at the hearing, the witness 
 must (on pain of disallowance of costs) only speak to 
 facts known, and not as to his belief, or information, 
 or hearsay, nor must he bo argumentative {[/), or 
 scandalous, or irrelevant. Affidavits used on interlocu- 
 tory applications (motions, summons, &c.) may contain 
 
 {d) Cons. Ord. XVIII. rr. 1, 2. (/) lb. r. 3a. 
 
 {e) n. S. C, Ord. XXXVII. {.'/) H'- !•• 3. 
 
 r. .3b.
 
 THE EVIDENCE OF WITNESSES. 115 
 
 allegations of mere bejlief. Every affidavit should state 
 the deponent's means of knowledge. The affidavit is 
 signed by the witness, or marked if he be illiterate. 
 
 Swearing. At the foot of the affidavit is the 
 " jurat," which is a statement that the affidavit was 
 sworn, where it was sworn, the date, and tlio commis- 
 sioner before whom it was sworn, describing him as 
 such commissioner. The affidavit may be sworn before 
 any one of certain officers, but in practice affidavits are 
 sworn either before (1) a master of the Supreme Court ; 
 (2) a District Registrar ; or (3) a commissioner to 
 administer oaths in the Supreme Court of Judicature ; 
 the commission being entrusted to a great number of 
 solicitors of standing and position all over the country. 
 
 Where the affidavit is sworn out of England, but 
 within the British empire, it may be sworn before any 
 person entitled to administer oaths there (//). Outside 
 the empire it may be sworn before the British ambas- 
 sador, or minister, or the secretary of legation, or 
 consular, or vice-consular, or acting consular officer (/), 
 or before any person authorized to administer oaths in 
 such country; but the latter alternative is practically 
 never used, because the court would require evidence of 
 the fact of such person being so authorized. 
 
 If the deponent cannot read, the affida^'it must of 
 course be read to him before it is sworn, which is usually 
 done by the person before whom it is sworn, and in 
 that case it must be certified in the jurat that the 
 affidavit was so read by or in the presence of the swear- 
 ing officer, and that the deponent seemed perfectly 
 to understand it (/.) . If a person other than the swearing 
 
 {Ji) 15 & IG Vict. c. SG, s. 22. (/.) R. S. r;., Onl. XXXVIT. 
 
 (0 lb. r. 3f. 
 
 i2
 
 116 EVIDENCE. 
 
 officer reads the affidavit to the deponent, it must he so 
 stated, and such person must first he sworn to read 
 truly, and must attest the deponent's signature. Like 
 remarks apply to the case of a foreigner, to whom 
 the affidavit must be translated by a sworn interpreter. 
 Any such affidavit not having the requii-ed certificate 
 cannot be used, unless the judge or court is satisfied 
 that the affidavit was in fact read over and explained 
 and thoroughly understood. 
 
 "Where an affidavit is made by more than one person, 
 and the whole of the deponents are not sworn at the 
 same time, there will be several jiu-ats, and each must 
 state to whom it relates. If all are sworn together, the 
 jurat should state so (/). 
 
 Erasures, &C. No affidavit having in the jurat or 
 the body any interlineation, alteration or erasure can 
 be made use of without leave; unless the interlineation 
 or alteration (other than by erasure) is initialled in the 
 margin by the swearing officer, nor in the case of an 
 erasure, unless the w^ords or figures appearing at the 
 time of swearing the affidavit to be rewritten, are also 
 written in the margin and signed or initialled by the 
 swearing officer {)ii) . 
 
 Printing. Affidavits used at the hearing must, it 
 would ajipear, be printed {n), except where they have 
 been used on any proceedings without having been 
 printed (o) ; but they may be sworn either in print or 
 in manuscript, or partly in print and partly in manu- 
 script {p). 
 
 (/) R. S. C, Ord. XXXVII. («) R. S. C, Ord. XXXVIII. 
 
 r. 3c. r. 6. 
 
 [ill) lb. r. 3e. ('/) Rules as to costs, Ord. II. 
 
 [p) R. S. C, Ord. LVl. r. 3.
 
 THE KVIDENCK OF WITNESSES. 117 
 
 How Written. Affidavits when written, must be 
 written on foolscap paper done up bookwise, otherwise 
 the filing officer may refuse to file them unless good 
 cause is shown to the contrary. "When printed they 
 must (like all other printed proceedings) be printed on 
 similar paper and in a similar way to that on which 
 pleadings are printed. 
 
 At the foot of every affidavit it must be stated ovtl 
 whose behalf it is filed (q) . \ 
 
 Exhibits. Sometimes documents or things are re- 
 ferred to in affidavits, and they are then called " ex- 
 hibits." Thus, in patent cases, a model is, perhaps, 
 exhibited to a witness, and he refers to it as " the 
 exhibit now produced and shown to me and marked A." 
 The exhibit is marked with tlie letter by which it is 
 referred to, and a memorandum is put on it containing 
 the sliort title of the action and a statement that it is 
 the exhibit marked A. referred to in the affidavit, whicli 
 memorandum must be signed by the swearing officer. 
 
 Filing Affidavits. When evidence is taken by 
 affidavit, the affidavit must be taken, together witli a 
 printed or (where allowable) a written copy, to the 
 central office or district registry, where the original is 
 filed, and the copy is retained to be examined, and 
 when examined is marked and returned as an office 
 copy, excej)t in certain urgent cases diuing the long 
 vacation when the offices are not open, and in which 
 the court will act on the original affidavit (;•). It must 
 be remembered, however, that affidavits used before tlie 
 (^hief clerks or judge in cliambers miif<f be filed in 
 London (s). Every affidavit must state, in a footnote, 
 on whose behalf it is filed (f). 
 
 (r/) Rules as to costs, Ord. V. r.ll. (*) R. S. C, Orel. XIX. r. '29u. 
 {>■) R. S. C. (Costs), Ord. V. r. (;. (/) R. S. C. (Costs), Ord. V. r. 1 1 .
 
 118 EVIDENCE. 
 
 When a copy is wanted in a hurry the solicitor must 
 get the copy marked as urgent at the divisional seat, in 
 which case it mil be examined before all others not so 
 marked, and if filed before two p.m., will be ready on 
 
 the next morning. 
 
 Time for filing Evidence. When evidence is 
 taken by affidavit the plaintiff must cause his affidavits 
 to be filed and deliver a list of them to the defendant 
 or his solicitor jvithin fourteen_days after the consent to 
 take the evidence by affidavit has been given {u). 
 
 The defendant on his part must file and deliver a list 
 of his affidavits to the plaintiff or his solicitor ^J lhiTi^ 
 fourteen_da^ after delivery of the plaintiff's list (v). 
 
 Within sev en days after the expiration of the fourteen 
 days given to the defendant the plaintiff must file and 
 deliver a list of Ids affidavits in reply i^if any), but these 
 must be confined strictly to matters in reply {tc), and if 
 they are not, an objection may be ta ken to them at the 
 hearing, but not before (x). 
 
 AVhere a party wishes to file further evidence after 
 the time limited for filing his evidence has expired, he 
 can onl}' do so by leave of the coirrt or a judge, which 
 is applied for by motion before the hearing of the 
 action (?/). 
 
 Furnishing Copies. Where affidavits are printed, 
 the party printing must fiurdsh any number of copies 
 (not exceeding ten) to any other party on demand, at the 
 rate of one penny per folio for the first, and one half- 
 penny per folio for every other copy (c) ; and where they 
 
 (u) R. S. C, Ord. XXXYIII. (y) 15 & 16 Vict. c. 86, s. .38; 
 
 r. 1. S,)iith V. Filffrim, L. R., 2 Ch. 
 
 (i) lb. r. 2. D. 138; Thexton v. Edmonston, 
 
 [ic) lb. r. 3; but aec Peacock v. L. R., 5 Eq. 373. 
 
 Harper, L. R., 7 Ch. D. 648. (r) Rules as to costs, Ord. V. 
 
 {x) Gilbert v. Com. Op. Co., r. 3. 
 L. R., 16 Ch. D. .')ni.
 
 THE EVIDENCE OF WITNESSES. 119 
 
 are written, copies must be furnished on deman(i,within 
 twentjT^-four hours on payment of proper charges (a). 
 
 Cross-examination. Wliore one of the parties (as 
 is almost invariably the case where the facts are dis- 
 puted) desires to cross-examine a witness who has made 
 an affidavit on behalf of the opposite party, he may 
 serve on such party by whom such affidavit has been 
 filed a notice requiring the production of the deponent 
 for cross-examination before the Court at the trial. 
 Such notice may be served at any tmie not later than 
 fourteen days next after the end of the time limited for 
 filing affidavits in reply (subject to the order of the 
 judge). 
 
 If after such notice the maker of such affidavit is not 
 produced, his affidavit will not be allowed to be used 
 without special leave of the court {h) ; l)ut the objection 
 to their being used must bo made at the hearing, and it 
 is irregular to move to have the affidavits taken off the 
 file(c). 
 
 The party whose_3^itness is required to bo cross- 
 examined.jnust bear the expense of his production in 
 the first instance (rf), and is entitled to compel his 
 appearance by subpceua as if ho were coming to be 
 examined in his behalf (c) . 
 
 In general the cross-examination or re-examination 
 of a witness at the hearing takes place in open court, 
 affidavits taking the place of the examination in chief, 
 which, however, may also be taken vii-d voce if in- 
 sisted on. 
 
 (a) lb. r. 9. Ch. 579. 
 
 {b) R. S. C, Ord. XXXVIII. (d) R. S. C, Ord. XXXVIII. 
 
 r. 4. r. 4. 
 
 ((') 31eyrick v. Jo7ies, 46 L. J., {r) lb. r. 5.
 
 120 EVIDENCE. 
 
 Examination before an Examiner. However, 
 
 tlie parties to an action may by writing signed by them 
 or their respective solicitors, and filed at the central 
 office, or the district registry as the case may be, agree, 
 or a judge in chambers may order, that the viva voce 
 examination, cross-examination and re-examination of 
 any person, or cross-examination and re-examination 
 of any person who has made an affidavit, shall be taken 
 before one of the examiners of the court, or a special 
 examiner, or before commissioners appointed for that 
 purpose. And the court or a judge may 0)xler that this 
 shall be done where it appears to him that, owing to 
 age, infirmity or absence of such witness out of the 
 jurisdiction of the court, or for any other cause which 
 appears sufficient, or where it is expedient for the 
 purposes of justice that such order should be made (./"). 
 
 And where the witness resides in certain specified 
 colonies, the cornet may award a writ to any court there, 
 requiring the judges thereof to hold a sitting for the 
 examination of witnesses within their jurisdiction (r/). 
 
 Where the witness is abroad, it is not usual for the 
 Chancery Division to appoint a commission, although 
 it has power to do so. Grenerally, either a writ is issued 
 to the Colonial Court (in colonies), or a special examiner 
 is appointed in foreign countries (//). 
 
 Where the witness is in England, the evidence is 
 either taken before the examiner of the couii in Rolls 
 
 (/) Ord. as to Evid., Feb. Act, 1S73, s. 76. 
 
 1861, r. 10, and Dan. Ch. Pr. [/i) Crofts v. Middldoii, 9 Ha. 
 
 805, and R. S. C, Ord. XXXVII. App. IS, 7o; Edwards v. Spaight, 
 
 r. 4. 2 J. & H. 617; Loud. Bank of 
 
 [g) 13 Geo. 3, c. 63, k. 44 ; 1 Mexico v. Hart, L. R., 6 Eq. 
 
 Wm. 4, c. 22, 8S. 1, 2; Jud. 467.
 
 THE EVIDENCE OF WITNESSES. 121 
 
 Yard, or before a special examiner, who is usually a bar- 
 rister. 
 
 An order for a special examiner will not usually bo 
 made (if opposed) unless strong reasons are shown by 
 affidavit for adopting that course, as the expense to the 
 parties is considerable, the special examiner being 
 entitled to chai'ge two guineas a day for his expenses 
 for every day in which he is necessarily detained in the 
 performance of his duties, and in addition throe guineas 
 for every day in which he is bona fide employed in 
 examining witnesses, togetlier with Is. 6f/. per mile 
 travelling expenses (/) . 
 
 The aiSdavit should also show the fitness for the 
 office of the person proposed to be appointed. 
 
 In examinations before the examiner of the court 
 10s. per witness per hour is payable in stamps, and if 
 the witness is (as is unusual) not examined at the 
 examiner's office, Zl. per diem additional, besides reason- 
 able travelling and other expenses (/.•). 
 
 The examination takes place in the presence of the 
 parties, their counsel, and solicitors, and is conducted as 
 an examination in court would bo (/). The examiner 
 administers the oath, and writes down, with liis own 
 hand (/«), what the witness says, on foolscap paper, book- 
 wise on both sides, or brief form on one side only {n). 
 The general examination should be taken down in a 
 narrative form, and not as question and answer; but 
 where a question is objected to, it should be taken down, 
 
 [i) Sched. 1 to Regs, as to Fees, {m) lb. s. 32 ; Stohart v. Todd, 
 
 H. T. 18G0. 2 W. E. 017 ; but sco Bolton v. 
 
 {k) Ord. as to Court Fees, Oct. Bolton, 2 Ch. D. 217. 
 1875, sched. ('0 Ord. Gth March, 1800, r. 
 
 {!) 1.5 & 16 Vict. 0. 8G, s. 31. 10.
 
 122 EVIDENCE. 
 
 together "witli the objection, and the examiner's opinion 
 as to its validity, which he is bound to state to the 
 parties ; but he has no power to decide the point. He 
 may also state any special matter to the court (o) . 
 
 When the examination is concluded, the examiner 
 reads over the deposition to the witness, who ought to 
 sign the same, and the examiner also signs it, and 
 transmits it to the central office or district registry (as 
 the case may be) to be filed (p). 
 
 "When a deposition is intended to be used on the 
 trial, the rule as to printing affidavits applies to it 
 (sup. p. 116). 
 
 Evidence de bene esse. Where there is a pro- 
 babihty of evidence being lost by the death or absence 
 of a witness, the court will allow his evidence to be 
 taken out of the regular course, or de bene esse, as it is 
 called (q). Evidence so taken can only be used con- 
 tingently upon the witness not being able to be produced 
 to be examined in the action in the usual way, and if, 
 when the time for the ordinary examination arrives, he 
 is alive and in the country, the evidence taken de bene 
 esse will be rejected. 
 
 The principal cases in which evidence is allowed to be 
 taken in this way are, where the witness is upwards of 
 seventy, or is dangerously ill, or about to leave the 
 country, or is the only person who can prove a fact of 
 great importance. 
 
 Where the application is made by reason of the age, 
 illness, or purposed emigration of tlie witness, it is 
 usually made by petition of course, although, in urgent 
 cases, it may be made by ex jmrte motion. AVhere it is 
 
 (o) 15 & IG Vict. c. 86, s. 32. {<}) Warner v. Moses, L. E., 
 
 {p) lb. s. 34. IG Ch. D. 100.
 
 INTEllTlOGATOllIES. 123 
 
 made by reason of tho witness being the only person 
 who can prove a fact of great importance, it must bo 
 made by motion on notice. 
 
 In every case the application must Ije supported by 
 affidavit of the facts. 
 
 If the application is granted, the witness may bo 
 subpoenaed, and the examination, cross-examination, and 
 re-examination is conducted before an examiner, or more 
 \isually a special examiner, and the depositions are filed 
 by him in the usual way. They cannot, however, be 
 used without an order of the court, which is absolutely 
 discretionary (>-). 
 
 CHAPTER III. 
 
 INTERROGATORIES. 
 
 One of the main distinctions which formerly existed 
 between common law and Chancery procedure was, tliat 
 the very object of the latter was to obtain from the 
 defendant what was called " discovery," /. c, an admis- 
 sion or denial under oath of the truth or falsehood of 
 the matters upon which the plaintiff relied. This dis- 
 covery was obtained by making tlio defendant answer 
 by affidavit, certain written questions or "interroga- 
 tories." Under the early x^ractice, these interrogatories 
 formed part of the bill of complaint ; afterwards (under 
 the Chancery Procedure Act, 18-j2) they formed a 
 
 (;•) See Hunter, 7.5, and Forsylh v. EUicc, 2 M. & G. 209.
 
 124 EVIDENCE. 
 
 separate and distinct document, being in fact the bill 
 turned into the most searchingly interrogative form. 
 Much useless questioning of course resulted from this 
 procedure under which the whole of the bill was invari- 
 ably interrogated upon. Indeed counsel used to teach 
 their clerks how to turn bills into interrogatories in a 
 mechanical kind of way, and it is still related of one of 
 them that his master made a wager that if the first five 
 lines of the Paradise Lost were interpolated in a bill, 
 the clerk would quite unconsciously turn them into in- 
 terrogatories, which in fact he did in the most approved 
 fashion. " "Was it of man's first or some other and 
 what disobedience ? and the fruit of that forbidden or 
 some other and what tree ? whose mortal or some other 
 and what taste brought death into the world ? or some 
 and what part or parts thereof, or how otherwise ?" &c. 
 
 However, that has all been changed, and instead of 
 interrogatories being the invariable resort of the plain- 
 tiff, they are now used sparingly, and only where facts 
 can be most readily ascertained by means of them. In 
 fact, strictly speaking, they should be confined to ma- 
 terial allegations of fact in the interrogator's pleading 
 not admitted by the other party, or as to material al- 
 legations of fact pleaded by the opposite party, but 
 not as to the evidence by which such facts are to be 
 proved {a). However, such a principle is not strictly 
 enforced, and a plaintiff is frequently permitted to in- 
 terrogate before delivering his claim ; in cases, for in- 
 stance, where he cannot otherwise assess his damages. 
 
 Times for interrogating. The plaintiff may de- 
 
 (a) Saunders v. Jones, L. R., 7 Ch. D. 43.5 ; and see Bcnbow v. 
 Low, 16 ib. 93.
 
 INTERROGATORIES. 125 
 
 liver iuterrogatories to the defendant (1) witli his state- 
 ment of claim, or at any subsequent time before the 
 close of the pleadings, or (2) by leave of the court or a 
 judge at any other time. 
 
 The defendant may deliver interrogatories to the 
 plaintiff (I) with his statement of defence, at any sub- 
 sequent time before the close of the pleadings, or (2) by 
 leave of the court or a judge at any other time. There 
 is no objection in the Chancery Division to the plaintiff 
 delivering iuterrogatories before the delivery of the 
 statement of defence {b), but a defendant will not 
 usually be allowed to deliver interrogatories before 
 delivering his defence ; and it is no ground for doing so 
 that he cannot otherwise tell what ground of defence to 
 take up {c). It is, however, submitted that a plaintiff 
 ought to be allowed leave to interrogate as to damages 
 suffered by him before he delivers his claim, and that a 
 defendant wishing to pay money into court ought to be 
 allowed to interrogate the plaintiff as to the amount to 
 be paid in before delivering his defence. No party can 
 deliver two sets of interrogatories to the same opponent, 
 without an order (r/). 
 
 When an order is required for delivering interroga- 
 tories, it may be applied for by motion (c), or probably 
 by summons in chambers. 
 
 (b) Harhord v. Monk, L. R. , 9 for delivery before the statement 
 
 Ch. D. G16. of defence. JJisnci/v. Zoiit/bourne, 
 
 {c) Disney v. Lo)ighournc, 2 ib. L. R., 2 Ch. D. 704. 
 
 704. {e) Disney v. Longbourne {sup.) ; 
 
 [d] R. S. C, Ord. XXXI. r. 1. L. i- T. Ins. Co. v. Davies, L. R., 
 
 It requires the most exceptional 5 Ch. D. 77'"). 
 circumstanccH to obtain an order
 
 126 EVIDENCE. 
 
 Form of Interrogatories. The form in which 
 interrogatories are drawn up is as follows : — 
 
 1881. S. No. 1660. 
 In the High Court of Justice. 
 Chancery Division. 
 V.-C. HaU. 
 
 Between John Smith Plaintiff, 
 
 and 
 Tliomas Jones Defendant. 
 
 Interrogatories on behalf of the above-named plaintiff for the 
 examination of the above-named defendant. 
 
 1. Did not the defendant on the day of ,18 , or on 
 some other and what date, receive, as trustee of the indenture of 
 settlement in the pleadings mentioned, or how otherwise, a sum of 
 1,000/., or some other and what sum, from A. B. or some other and 
 what person, in discharge of a mortgage debt due from the said A. B. 
 to the trustees of the said indenture or how otherwise ? 
 
 2. Has the defendant invested the said sum of 1,000?., or the sum 
 so received by him as aforesaid, in some and which of the stocks, 
 funds and securities authorized in that behalf by the said indenture, 
 and if not, why not, or how otherwise ? 
 
 3. Is it not a fact that the defendant invested the said sum of 
 1,000?. in his own name as part of his capital in the trade of a founder, 
 carried on by him in co-partnership with divers other person at Bir- 
 mingham, in the county of Warwick, and that the same sum still re- 
 mains so invested : and if not, where is the said sum now invested, 
 and in whose name, and when was the same invested upon its present 
 security ? 
 
 4. Is not the defendant's said trade of a highly speculative cha- 
 racter ? 
 
 The defendant is required to answer all the above interrogatories. 
 
 Time for answer. Interrogatories must be an- 
 swered within ten days from the date of delivery, unless 
 the court or a judge grant further time, usually applied 
 for by summons (^). 
 
 Objections to answering. If the interrogatories 
 
 {e) R. S. C, Ord. XXXI. r. C.
 
 INTERROGATORIES. 127 
 
 or any of them are objectionable, there are two ways of 
 taking the objection to them, or to the one objected to, 
 viz. : — 
 
 1. Where the ground of objection is that they are 
 scandalous or irrelevant, or not asked bond fide for the 
 purpose of the action, or that the matters inquired into 
 are not STifficiently material at that stage of the action, 
 or that an answer would tend to criminate the person 
 interrogated, or on any other ground, the objection may 
 be taken in the affidavit in answer (/). 
 
 2. Where the ground of objection is that the inter- 
 rogatories are unreasonable, or vexatious, or scandalous, 
 an application may be made in chambers to strike them 
 out within four days after delivery of the interroga- 
 tories [fj). 
 
 Interrogating Corporations. Where any party 
 to an action is a corporation, or a joint stock company, 
 or any body of persons empowered by law to sue or be 
 sued in its own name, or in the name of an officer or 
 other person, any opposite party may apply at chambers 
 for an order allowing him to deliver interrogatories to 
 any member or officer of such corporation, company or 
 body (A). Before, however, a member can be interro- 
 gated, it must be shown that he has the required 
 information, and that there is no officer capable of 
 giving it (/). 
 
 Formerly it was usual to make an officer of a corpo- 
 ration a defendant, solely for the purpose of interro- 
 gating him, but the above rule now renders this un- 
 necessary [j). 
 
 (/) lb. r. 5 (1878). (i) Berkley v. Standard Co., L. 
 
 [jg) lb. R., 13 Ch. D. 97. 
 
 [h) R. S. C, Orel. XXXI. r. -4. {J) J^'^^^on v. C/iinr/i, L. R., 9 
 
 Ch. D. 552.
 
 128 EVIDENCE. 
 
 However, it is still open to a plaintiff to join a person 
 as defendant, solely for tlie purpose of discovery (k) 
 where such a course is desii-able. 
 
 Form of Answer. The form of the affidavit in 
 
 answer to interro^-atories is as follows : — 
 
 1881. S. No. 16C0. 
 In the High Court of Justice. 
 Chancery Division. 
 V.-C. HaU. 
 
 Between John Smith Plaintiff, 
 
 and 
 
 Thomas Jones Defendant. 
 
 The Answer of the above-named defendant to the interrogatories 
 
 exhibited for his examination T)y the above-named plaintiff. 
 In answer to the said interrogatories I, the above-named , make 
 oath and say as follows : 
 
 1. I did on the day of , IS , receive as trustee of the 
 indenture of settlement in the pleadings mentioned a sum of 1,000/. 
 from A. B., in discharge of a mortgage debt due from him to the 
 trustees of the said indenture. 
 
 2. I have invested 800/., part of the said sum of 1,000/., in mortgage 
 of freehold hereditaments at , in the county of , by virtue 
 of an indenture dated the day of , 188 , and made 
 between Samuel Jones of the one part and me of the other part. 
 
 3. The sum of 200/., residue of the said sum of 800/., stiU remains in 
 my hands uninvested, but is not used by me in my business, nor in- 
 vested as part of my capital in the same. 
 
 4. I object to answer the 4th of the said interrogatories on the ground 
 that the same is irrelevant and scandalous. 
 
 Sworn, (Sec. 
 
 This affidavit is sworn in the usual way, like any other 
 affidavit, and should be fled, like an affidavit, at the 
 central office or district registry. If it exceeds ten folios, 
 it must (unless a judge orders otherwise) be printed 
 under Order XXXI. r. 7. 
 
 Objections to Answer. ■\Vhere a party objects to 
 the sufficiency of the affidavit, the objection may be de- 
 
 (/•) On- v. Tliriprr, L. R., 4 Cli. D. 92.
 
 INTERROGATORIES. 129 
 
 temiined on summons in chambers (/), as also, where he 
 omits to answer altogether; and the judge may order 
 the interrogated party to answer, or answer further, as 
 the case may be, either by affidavit or viva voce (in) . 
 
 The summons should state specifically to what part or 
 parts of the interrogatories a fm'ther answer is re- 
 quired {n), and the order, when made, should be served 
 on the party or his solicitor. 
 
 If any party from whom discovery is sought objects 
 to the same or any part thereof, the judge may, if satis- 
 fied that the right to such discovery depends on the de- 
 termination of any question in dispute in the action, or 
 that for any other reason it is desii-able that any question 
 in dispute in the action should be determined before 
 deciding upon the right to such discovery, order that 
 such question in dispute be determined fii'st, and reserve 
 the question as to the discovery (o). Thus, where a per- 
 son disputed a horse-dealer's account, and the dispute 
 was, whether certain horses were sold on commission, 
 the com-t refused to order the horse-dealer to disclose 
 the prices until it had been decided whether the horses 
 had or had not been sold on commission {p). 
 
 Default in answering. If any party fails to 
 comply with any order to answer interrogatories, he is 
 liable to be attached (i. e., sent to prison for contempt), 
 and also, if plaintiff, to have his action dismissed for 
 want of prosecution, and, if defendant, to have his de- 
 fence (if any) struck out, and to be placed in the same 
 
 (0 R. S. C, Ord. XXXI. r. 9 ; («) Anstet/ v. Woolwich Co., L. 
 
 Chesterjield CoUienj Co. v. Black, 24 R., 11 Ch. D. 439. 
 
 W. R. 783. (o) R. S. C, Ord. XXXI. 
 
 (»h) R. S. C, Ord. XXXI. r. 19. 
 
 r. 10. (p) lie Leigh, L. R., 6 Ch. D. 
 
 256. 
 
 U. K
 
 130 EVIDENCE. 
 
 position as if he had not defended {q), and the interro- 
 gating party may apply in chambers, or by motion, for 
 an order to this effect (r). 
 
 Using Answer. With regard to using the affidavit 
 in answer to interrogatories, at the hearing, any party 
 may use all or any of the answers of the opposite ptnrty ; 
 but the judge may look at the whole of the answers, and 
 if he shall be of opinion that any others of them are so 
 connected with those put in evidence, that the latter 
 ought not to be used alone, he may direct them to be 
 put in (.s) . 
 
 No party can use his own answers as evidence in his 
 own favour. 
 
 The affidavit can only be cross-examined upon where 
 any party gives notice that he means to use the affidavit 
 as part of his evidence at the hearing, or upon any other 
 proceeding against any other party ; in which cases, the 
 party against whom it is used may cross-examine upon 
 
 it(0- 
 
 Lastly, it must be remembered that if interrogatories 
 have, in the opinion of the taxing officer, been unrea- 
 sonably, or vexatiously, or lengthily administered, the 
 party administering them will have to pay, not only the 
 cost of them, but also of the answers {u). 
 
 [q] R. S. C, Ord. XXXI. r. («) E. S. C, Ord. XXXI. r. 
 
 20. 23. 
 
 (>•) lb. ; and iv-wsoM V. Loe, 26 {t) Manli/ v.Beivicl-e,8'D.,'M.& 
 
 W. R. 138 ; as to the evidence Gr. 470. 
 
 on such application, see R. S. C, (?<) R. S. C, Ord. XXXI. r. 2. 
 Ord. XXXI. rr. 21, 22.
 
 DOCUMENTARY EVIDENCE. 131 
 
 CHAPTER lY. 
 
 DOCUMENTARY EVIDENCE, 
 
 Notice to admit. A party who proposes to put in 
 evidence documents whicli are in his own possession, 
 should give notice to the other side to admit them. 
 Such a notice is in the following form : — 
 
 In the High Court of Justice. 
 Chancery Division. 
 V.-C. HaU. 
 
 Smith V. Jones. 
 Take notice, that the plaintiff {or defendant) in this action proposes 
 to adduce in evidence the several documents hereunder specified, and 
 that the same may be inspected by the defendant {or plaintiff) liis 
 solicitor or agent at on the of instant, between the 
 
 hours of and , and the defendant {or plaintiff) is hereby 
 
 required within, forty-eight hours from the last-mentioned hour to 
 admit that such of the said documents as are specified to be originals 
 were resjDectively written, signed or executed as they purport re- 
 spectively to have been ; that such as are specified as copies are true 
 copies ; and that such documents as are stated to have been served, 
 sent or delivered were so served, sent or delivered respectively ; saving 
 all just exceptions to the admissibility of all such documents as evidence 
 in this action. 
 Dated, &c. 
 To Mr. 
 
 Solicitor {or agent) for the defendant {or plaintiff). 
 
 (Signed) John Beowx. 
 
 Solicitor {or agent) for the plaintiff {or defendant). 
 
 Description of Documents. 
 
 Originals. 
 Deed of Covenant between A. B. and C. D., 
 
 first part, and E. F., second part 
 
 Letter, Defendant to Plaintiff 
 
 Copies. 
 
 Letter, Plaintiff to Defendant 
 
 Notice to produce Papers 
 
 k2 
 
 Dates. 
 
 January Ist, 1848. 
 March 1st, 1879. 
 
 March 'ind, 1879. __ 
 December 2ud, 1879.
 
 132 EVIDENCE. 
 
 In case the party to whom this notice is given refuses 
 or neglects to admit such documents, he will have to 
 pay the costs of proving them ; unless, at the hearing, 
 the court shall certify that the refusal or neglect was 
 reasonable (a). 
 
 Omission to give Notice. In case a party omits 
 to give such notice, he will not be entitled to his costs 
 of proving the documents, unless the taxing master is 
 of opinion that the omission was a saving of ex- 
 pense (b). 
 
 Proof of Admission. An ajEfidavit of the solicitor 
 or his clerk, of the due signature of any admission of the 
 due execution of documents annexed to the notice, is 
 sufficient evidence of the fact of such admission (c). 
 
 Where documents are not admitted, their execution 
 must be proved in the ordinary way, for which see 
 books on evidence. 
 
 Discovery of Documents. "Where the opposite 
 party has documents in his possession relating to the 
 subject-matter of the action, the other party may, with- 
 out any evidence, apply in chambers for an order direct- 
 ing such opposite party to make dis.covery on oath of 
 the documents which are or have been in his possession 
 or power relating to any matter in question in the 
 action. A similar application may be made at any 
 stage for the pivdHction of documents [d). 
 
 The affidavit to be made by a party against whom 
 such order is made, must specify the documents, and 
 also which (if any) of them he objects to produce (e). 
 
 (a) R. S. C, Ord. XXXII. {d) R. S. C, Ord. XXXI. rr. 
 
 r. 2. 11, 12. 
 
 (i) lb. {e) lb. r. 13. 
 
 ((■) lb. r. 4.
 
 DOCUMENTARY EVIDENCE. 133 
 
 This affidavit should be in the following form : — 
 
 1881. J. No. 
 In the High Court of Justice. 
 Chancery Division. 
 V.-C. Hall. 
 
 Between John Smith Plaintiff, 
 
 and 
 Thomas Jones Defendant. 
 
 I, the above-named defendant Thomas Jones, make oath and say as 
 follows : — 
 
 1. I have in my possession or power the documents relating to the 
 matters in question in this action, set forth in the first and second 
 parts of the schedule hereto. 
 
 2. I object to produce the documents set forth in the second part 
 of the said schedule. 
 
 3. I object to produce such documents, on the ground that the 
 same exclusively consist of letters which have passed between myseK 
 and my solicitor in relation to this action, and of a case submitted to 
 counsel in relation thereto, and of his opinion thereon. 
 
 4. I have had, but have not now in my possession or power, the 
 documents relating to the matters in question in this action, set forth 
 in the third part of the said schedule hereto. 
 
 5. The last-mentioned documents were last in my power or posses- 
 sion on the day of last. 
 
 6. On that day I delivered them to of , in whoso pos- 
 session to the best of my belief the same now are. 
 
 7. According to the best of my knowledge, information and belief, 
 I have not now and never had in my possession, custody or power, or 
 in that of my solicitors or agents, or any of them, or of any other person 
 or persons on my behalf, any document whatsoever, or any copy of or 
 extract from any document whatsoever, relating to the matters in 
 question in this action, or any of them, or wherein any entiy has been 
 made relative to such matters or any of them, other than and except 
 the documents set forth in the said schedule hereto. 
 
 Sworn, &c. 
 
 It is one of the curiosities of our procedure, that the 
 accuracy of this affidavit cannot be questioned by the 
 other side, unless the deponent has in his pleadings or 
 in the answer admitted the existence of some document
 
 134 EVIDENCE. 
 
 not set fortli in the scliedule, or unless from the state- 
 ments in the answer or pleadings it can be reasonably 
 inferred that such document is in existence, in which 
 cases only, a summons may be taken out for a further 
 and better affidavit (/). 
 
 Inspection of Documents. The next step is to 
 obtain inspection of the documents in the hands of the 
 opposite party ; and this is done by serving him "«ith 
 notice to produce them to the party or his solicitor, and 
 to permit copies to be taken ; and any party refusing to 
 comply with such notice, forfeits the right to put such 
 documents in evidence, unless he can satisfy the court 
 that they relate solely to his own title (he being a 
 defendant), or that he had some other sufficient cause 
 for his refusal ( g) ; and, in addition, the party requiring 
 inspection may apply to the judge by summons for an 
 order for compulsory inspection {/i). Where, however, 
 such order is applied for with respect to documents not 
 disclosed by the pleadings of the opposite party on such 
 an affidavit as above mentioned, the applicant must file 
 an affidavit showing what documents he requires to 
 inspect, that he is entitled to inspect them, and that 
 they are in the possession or power of the opposite 
 party (?)• 
 
 Where a party means to comply with a notice to 
 inspect, he must, within two days where the documents 
 have been disclosed in his pleadings or affida\T[t, or 
 within four days where they have not, deliver to the 
 
 (/) See.S'aM//v. Browne, L.R., {g) R. S. C, Ord. XXXI. r. 
 
 17 Eq. 402 ; Noel v. Noel, 1 D., 14. 
 
 J. & S. 468; Wright v. Pitt, L. (//) lb. rr. 11, 17. 
 
 B., 3 Ch. Ap. 809; Carver v. (i) lb. r. 18. 
 Finto Leitc, 7 ib. 90.
 
 DOCUMENTARY EVIDENCE. 135 
 
 party requiring inspection, a notice, stating a time 
 ^vithin three days when the documents may bo inspected 
 at his solicitor's office, and stating which (if any) of 
 them he objects to produce, and why (./). 
 
 Reserving Discovery and Inspection. The 
 principles with regard to reserving interrogatories until 
 after certain issues are tried, and the results of failui-e 
 to comply with an order to answer interrogatories stated 
 at p. 129, equally apply to the discovery and inspection 
 of documents (Z'). 
 
 Putting Adversary's Documents in Evidence. 
 A party having learnt the contents of documents in the 
 possession or power of his adversary, may wish to put 
 them in evidence at the trial. For this purpose he 
 must give his solicitor notice to produce them at the 
 hearing, and, if he refuses or neglects to comply with 
 such notice, the party giving it may give secondary 
 evidence of the document at the hearing. 
 
 Subpoena Duces Tecum. Where a document which 
 a party proposes to put in evidence is in the possession 
 of a third party, a writ of subpcena duces tecum must be 
 taken out, and served in the same way as a subpcena ad 
 test, {ante, p. 113). The writ must, however, specify the 
 documents required to be produced. 
 
 Using Evidence taken in other Proceedings. 
 Sometimes it is desired to use at the hearing evidence 
 taken in another action. For this purpose an order (made 
 on petition of course) is required : but at the hearing, the 
 opposite party may of course object to any portion of the 
 evidence, as if it were original evidence. 
 
 U) lb. r. IG. (/.) lb. rr. 19, 20.
 
 ( 136 ) 
 
 Sub-division V. 
 
 Trial of the Action, or of Issues of Fact 
 in it. 
 
 Chaptee I. — PEELrmNAEY Observations. 
 Chapter II. — Trial before a Judge and Jury. 
 Chapter III. — Triad before a Judge and Assessors. 
 Chapter IV. — Trial before a Judge alone. 
 Chapter V. — Trial of Issues before Keferee. 
 
 CHAPTER I. 
 
 PRELIMINARY OBSERVATIONS. 
 
 By the trial of an action is meant the hearing in open 
 court of the matters of fact in dispute. 
 
 Notice of Trial. The plaintiff may give notice of 
 trial with, or at any time after, his reply ; and if he does 
 not do so within sis weeks after the close of the plead- 
 ings, the defendant may do so, or may, in the alterna- 
 tive, apply to the judge in chambers to dismiss the action 
 for want of prosecution {a) . 
 
 The notice of trial must be given ten days at least 
 before the date of the trial, unless the other party con- 
 sents to take short notice, which is four days, and can- 
 not be countermanded without leave (b) : the notice 
 must state whether the trial is to be the trial of the 
 action, or only of issues therein {c) , and must specify the 
 mode of trial proposed by the notifying party. But 
 either party may within four days apply by motion or 
 
 («) U.S. C, Orel. XXXVI. r. -la; (i) R. S. C, Ord. XXXVI. 
 
 TTif/yw V. Eveli/n, L. R., 13 Ch. D. n: D, 13. 
 138; Frcdsonv. Loc, 2GW. R.138. (r) lb. r. 8.
 
 PKELIMINARY OBSERVATIONS. 137 
 
 summons for a change of mode ; or, by special leave, 
 after four days (d) . 
 
 Modes of trying Actions. There are three, viz. 
 (1) before a judge and juiy, (2) before a judge and as- 
 sessors, and (3) before a judge alone, which is by far 
 the most usual plan in the Chancery Division. Certain 
 issues of fact in an action may also be tried before an 
 official or special referee ; but the action itself cannot (e). 
 
 If the party giving notice of trial chooses (as he 
 usually does) any other mode than that of a judge and 
 jury, the opposite party may within four days (or such 
 extended time as a judge or the court shall allow) give 
 notice of his desire to have the issues of fact tried by a 
 judge and jury, and in that case, if the other party ob- 
 ject, it lies upon him to convince the court, on motion or 
 summons, that the matter is one which a jury is not 
 competent to deal with, either from its great complexity 
 as regards facts, or from fact and law being so inter- 
 mingled together that it would be difficult (if not im- 
 possible) to direct a jury by separating the law from the 
 fact ; or because the questions, as regard the law, are of 
 such a delicate nature, and require a knowledge of sucli 
 refined law, that they could not be conveniently presented 
 to a jury(./). On the other hand, the judge may, 
 either at or before the trial, mero motu, order the trial of 
 any issue to be had before a jury, if he considers that it 
 will be more convenient [g). 
 
 It is essentially a matter of discretion witli the judge 
 whether the case is proper for a jury or not, and the i 
 
 {d) lb. rr. 3, 5. (/) R. S. C, Ord. XXXVI. 
 
 [e) Non obstante R. S. C, rr. 3, 4 and 26 ; and per Jcsscl, 
 
 Ord. XXXVI. r. 2; see per M.'R., Bordicr v. BurrcU,!,.^.., 
 
 Brett, L. J., Layman v. East, L. 5 Ch. D. 514. 
 
 R., 3 C. P. D. 15G. [g) R. S.C, Ord. XXXVI. r. 27.
 
 138 TRIAL OF THE ACTIOX, OR OF ISSUES OF FACT IX IT. 
 
 Court of Appeal will rarely interfere with his decision, 
 unless based on a misapprehension of law {Ii). But 
 where personal character will be affected by the result of 
 a trial, it is strong ground for insisting upon a jury (/). 
 
 The court, on motion,jmay order that different ques- 
 tions of fact in an action may be tried by different 
 modes, and that one or more of such Cj^uestions be tried 
 before the other or others ; but such an order will only 
 be made under the most exceptional circumstances (A-) . 
 
 Entry for Trial. An action cannot be entered for 
 trial until after notice of trial, but must be entered 
 within six days thereafter (except where it is to be tried 
 at the assises) (/). If the party giving notice does not 
 enter it on the day of the notice, or the day afterwards, 
 the other party may enter it within four days(wi). 
 Actions to be tried before a judge alone are entered 
 at the registrar's office, or at the district registry, by 
 leaving a praecipe (or request) there, together with two 
 copies of the pleadings in print, where they are printed, 
 one being for the use of the judge (ii). Trials before a 
 judge and jury, or at the assizes, are entered like 
 common law actions with the district registrar (o). 
 
 (7i) Swindell v. Birm. Syndicate, r. 6 ; and see Emma Mining 
 
 L. E,., 3 Ch. D. 133; JRuston v. Co. v. Grant, L. E., 11 Ch. D. 
 
 Tobin, L. R., 10 Ch. D. 565. 918; and Fierci/ y. Young, 15 ib. 
 
 (j) Leigh v. BrooJcs, L. R., 5 475. 
 
 Ch. D. 592 ; and see as to other (/) E. S. C, Ord. XXXVI. 
 
 cases, Spratt t. Ward, L. R., 11 rr. 10, 10a. 
 
 Ch. D. 240 ; Singer Co. v. Loog; (m) Ib. r. 14. 
 
 ih. 656; and TFedderburnv. Picker- («) Eegs. Not. Feb. 1877; R. 
 
 ing, 13 ib. 769; Garling v. Royds, S. C, Ord. XXXVI. r. 17; ib, 
 
 25 W. E. 123 ; West v. White, Ord. XXXV. rr. 1, la. 
 
 L. R., 4 Ch. D. 631 ; Mirehouse {o) Eegs. Not. Feb. 1877; Clark 
 
 V. Barnet, 26 W. R. 690. v. Cookson, L. R., 2 Ch. D. 746 ; 
 
 (A) R. S. C, Ord. XXXVI. R. S. C, Ord. XXXVI. r. 15a.
 
 TRIAL BEFORE A JUDGE AND JURY. 139 
 
 CHAPTEE II. 
 
 TRIAL BEFORE A JUDGE AND JURY. 
 
 Where a case is to be tried before a jury, it practically 
 leaves the Chancery Division for that purpose, and goes 
 either to the assizes or to the Middlesex or London 
 sittings for trial in the same way as a common law 
 action. If the action is being tried, judgment is 
 generally given by a common law judge, or if only 
 issues in the action are being tried, the action returns to 
 the Chancery Division on motion for judgment. 
 
 Any application for a new trial in jury cases must be 
 made in the Queen's Bench .Division {a) . Where an 
 order is obtained for a trial by jury, it is necessary that 
 the order should state the reasons for which it was 
 made {h) : but of course no reasons are necessary where 
 the action is entered for a jury without order (c). Where 
 an action has been entered for trial in the Chancery 
 cause book before the judge, the officer of the Queen's 
 Bench Division or the district registrar of the assize 
 town will not enter it for trial before a jury, unless the 
 solicitor brings either a judge's order, or a certificate 
 of the Chancery registrar annexed to the statement of 
 claim, that the action has been subsequently marked jury 
 trial at defendant's [or plaintiff's] instance, in accordance 
 with a notice given by the defendant [or plaintiff] {d). 
 
 (a) R. S. C, Ord. XXXIX. r. 29a. 
 
 r. 1 ; Hunt v. Cit!/ of London Ecal {c) Warner V. MurdocJi, L. R., 
 
 Fropcrtij Co., L. R., 3 Q. B. D. 4 Ch. D. 750. 
 
 19. (r/) W. N. 1877, rt. II. page 
 
 (*) R. S. C, Ord. XXXVI. 162.
 
 140 TRIAL OF THE ACTION, OR OF ISSUES OF FACT IN IT. 
 
 CHAPTER III. 
 
 TRIAL BEFORE A JUDGE AND ASSESSORS. 
 
 "When a trial takes place before a judge and assessors 
 it is heard in such manner and upon such terms as 
 the court or a judge shall direct (a) ; and it is therefore 
 apprehended that in such cases the proper course is to 
 move the court for the appointment of an assessor or 
 assessors, and for directions as to the manner and time 
 of trial. Such modes of trial are, however, very rare in 
 the Chancery Division, although the judge not unfre- 
 quently orders a j)articular skilled person to view pro- 
 perty, and to report to him upon its condition. 
 
 CHAPTER IV. 
 
 TRIAL BEFORE A JUDGE ALONE. 
 
 As I have said before, by far the most usual course in 
 the Chancery Division, is to have an action tried before 
 a judge alone. In that case he invariably decides both 
 facts and law at the same time, and dehvers his judg- 
 ment at the conclusion of the trial, so that there is no 
 occasion to move for judgment subsequently. 
 
 The action having been set do"«Ti, will appear in the 
 paper and be called on for hearing in its turn. It 
 generally happens that where a judgment is likely to be 
 resisted, some weeks (or even in busy times, months) 
 elapse before an action is reached. 
 
 Short Actions. But besides these really litigated 
 actions (such as actions for injvmctions to prevent the 
 
 (a) R. S. C, Ord. XXXVI. r. 28.
 
 TRIAL BEFORE A JUDGE ALONE. 141 
 
 commission or continuance of wrongs, whether ex con- 
 tractu or ex delicto), in which the judgment concludes the 
 action, there is a class of actions peculiar to the Chancery 
 Division, in which the judgment is rarely resisted, and 
 merely forms the prelude to further proceedings in the 
 judges' chambers, and in court on further consideration. 
 
 To this class belong actions for the administration of 
 the estate of an intestate, or of the trusts of a will or 
 settlement, the partition of estates held by tenants in 
 common, foreclosure actions, and other administrative 
 business. In actions of this class, the judgment asked 
 for is generally such as cannot be decently resisted. 
 For instance, in an action for foreclosure, the plaintiff 
 generally asks that an account may be taken of what is 
 due to him on the mortgage, and that the defendant 
 may be ordered to pay the amount by a day certain 
 (generally six months), or in default, that he may be 
 declared to be foreclosed of his equity of redemption. 
 It is obvious, that, supposing the mortgage to exist, 
 there can be no valid resistance offered to such a claim, 
 although when the account comes to be taken in cham- 
 bers, a fierce fight may be made over the items. So, 
 where a cestui que trust asks, that the trust may be 
 administered by the court, he has a right to the relief 
 prayed, and the trustee cannot prevent him getting it, 
 although in chambers afterwards many nice points may 
 arise in reference to how the trust should be carried out. 
 
 In such cases as these, therefore, where the trial is 
 not likely to last more than ten minutes, the action may 
 be set down as " a short action " on the certificate of 
 counsel that it is fit to be heard as short, and it will 
 then be placed in the paper for the first succeeding 
 short action day (one day a week being devoted to this 
 class of work). The certificate of counsel is a prima
 
 142 TRIAL OF THE ACTION, OR OF ISSUES OF FACT IN IT. 
 
 facie groimd for setting an action down as short. If 
 the other party considers that the action ought not to 
 be heard as short, he should appear when the action is 
 called on, and if he can show the court any fair reason 
 why it should not be heard as a short action, it will be 
 ordered to be put into the general hst ; but the mere 
 desire of the defendant that the action should not be 
 heard as a short action, is not sufficient {a) . Of course 
 an action with witnesses ought not to be marked short. 
 
 Notice of an action, being marked short, must be at 
 once given to the other party in the usual way. 
 
 Briefs. Some days before an action (whether 
 marked short or otherwise) is likely to be in the paper, 
 the solicitors for the party or parties wishing to be 
 heard, should deliver their briefs to counsel. In con- 
 tested actions, two counsel are usually employed for 
 each party (although in very important cases three or 
 even four may be justified), one generally being a 
 Q. C, and the other the junior, who has drawn the 
 pleadings and advised on the case ; and even in short 
 actions, where the property involved is large, the employ- 
 ment of two counsel may be justified. The briefs should 
 consist of a copy of the pleadings and affidavits (if 
 any), counsel's opinion on the case (if any), observations 
 of the solicitor, copies of documentary evidence, and 
 (where evidence is to be taken viva wee) proofs, /. e., 
 statements of what each -fitness is prepared to prove. If 
 it is intended to cross-examine the opponent's witnesses, 
 and they are known, the solicitor should find out their 
 several characters, and should notify the same in the 
 briefs of his counsel, together with any hints or infor- 
 mation relative to their intended cross-examination 
 which may stiike him. Such observations are fi-equently 
 
 (a) Fchtead\. Grey, L. K., 18 Eq. 92.
 
 TRIAL IJEFORE A JUDGE ALONE. 143 
 
 of the greatest service. Where real property is in 
 question, a plan should he furnished to counsel. 
 
 It is an excellent and usual plan to hind up the 
 pleadings and affidavits bookwise, together with a table 
 of contents. 
 
 Party appearing in two Capacities. Where .y 
 a person appears in two capacities in an action, for 11 
 instance as an executor or trustee and in an individual , 
 capacity, he should instruct two sets of counsel. 
 
 Order of the Proceedings. The plaintiff's counsel 
 opens the case by reading the pleadings and commenting 
 on them ; and, where evidence is taken by affidavit, 
 and the cross-examination is not to be taken in court, 
 he reads his evidence, and so much of the evidence 
 of his opponent's as he wishes to comment upon. 
 When he has finished, if the court thinks that he has 
 not made out a prima facie case, the action is at once 
 dismissed without calling on the defendants ; but if 
 he has made out a prima facie case, the defendants' 
 counsel are called upon in the order in which the defen- 
 dants appear on the record, unless any of them happen 
 to be in the same interest with the plaintiff, in which 
 case they inmiediately follow him. 
 
 If the defendants' counsel do not show a 2^rimd facie 
 answer to the plaintiff's case, the court does not call 
 upon the plaintiff's counsel to reply; but if they do 
 raise a reasonable case against the plaintiff, the 
 leading counsel for the plaintiff in court is called upon 
 to reply. After the reply, the court either reserves 
 judgment or pronounces judgment at once, the heads of 
 which are taken down by the registrar in court, and by 
 the several counsel, and are subsequently put into formal 
 shape by the registrar.
 
 144 TRIAL OF THE ACTION, OR OF ISSUES OF FACT IN IT. 
 
 Where evidence is lieard vii-d voce in court, the plain- 
 tiff's witnesses are examined, cross-examined and re- 
 examined, immediately after his counsel has opened his 
 case, and the defendants' witnesses are examined, cross- 
 examined and re-examined, immediately after the 
 defendants' coimsel has opened his defence ; but the 
 defendants' counsel in that case has the right of making 
 a second speech, summing up his evidence. 
 
 Non-appearance at Trial. Sometimes on the trial 
 of an action a party does not appear : in that case, if the 
 defendant does not appear, the plaintiff may, on pro- 
 ducing an affidavit of service of notice of trial, prove 
 his claim so far as the proof lies on him ; if the plaintiff 
 does not appear, the defendant mil be entitled to 
 judgment, unless he has a counter-claim, in which case 
 he must prove it so far as the proof lies on him (h). 
 
 However, any judgment obtained in default of a 
 party appearing, may be set aside upon motion or notice 
 made within six days after the trial (c). 
 
 Affidavit of Service. Whether an action is 
 marked "short" or not, it must never be forgotten that 
 in case (as is not unusual) the defendant does not appear 
 on the case being called on, the fact of notice of trial 
 having been duly given (and where the action is marked 
 short, of notice of the action being so set down) must be 
 proved to the satisfaction of the registrar hr/ore the 
 rising of the court on the day of the hearing, by affidavit 
 in case of actual service, or (where the defendant has 
 not appeared to the writ) by certificate of the proper 
 
 [b) E. S. C, Ord. XXXVI. 1 ; Wright v. Clifford, 2G W. K. 
 rr. 18, 19. 369 ; MivlwU v. Wihon, 25 W. 
 
 (c) lb. r. 20 ; and see Bur- R. 380. 
 goiiie V. luijlor, L. R., 9 Cli. D.
 
 TRIAL OF ISSUES BEFORE REFEREE. 145 
 
 officer that sucli notice has been duly filed (d). (See 
 ante, p. 110.) 
 
 Hearing in Camera. It is occasionally desirable 
 that the facts of a case involving family honour, or 
 the like, should not be made public, and in such cases 
 the court wiU consent that the action be heard in the 
 judge's private room, and judgment is either delivered 
 there or in court. 
 
 Compromise. It sometimes happens that after an 
 action is entered for trial the parties come to terms. 
 In such a case it may be withdrawn by either party 
 upon producing to the registrar the written consent of 
 both parties ; but otherwise it cannot be withdrawn 
 without leave of a judge (e) , It may be here mentioned, 
 however, that if one of the parties withdraw from a 
 compromise, the terms cannot be enforced in that 
 action, but must form the subject of a new action for 
 specific performance (/). 
 
 CHAPTER V. 
 
 TRIAL OF ISSUES BEFORE REFEREE. 
 
 Consent. Where, the parties consent, the court may 
 send anj/ or ail questions or issues of fact in an action 
 (but not the action itself) for trial before one of the 
 official referees or a special referee. But even by 
 
 ((I) CocJcshott V. Zond. Gen. Cab observed. 
 
 Co., 26 W. R. 31 ; but see a {e) R. S. C, Old. XXIII. rr. 
 
 query contra, per Fry, J., Churl- 1, 2. 
 
 ion V. Dickie, L. R., 13 Ch. D. (/) r>!/er v. Gribble, L. R., 
 
 160. Until the point is decided 10 Ch. Ap. '.34. 
 finally the above rule shoidd be 
 
 1'. L
 
 146 TRTAL OF THE ACTION, OR OF ISSTTES OF FACT IN IT. 
 
 consent, questions of law cannot be so referred (a) (unless 
 of course the action is regularly referred to arbitra- 
 tion) . 
 
 Compulsory Reference. Where the parties do 
 not consent, and there are any issues requiring a pro- 
 longed examination of documents or accounts, or re- 
 quiring any scientific or local investigation which cannot 
 in the opinion of the court or a judge conveniently be 
 made before a jury or conducted by the coui't through 
 its ordinary officers, all the issues of fact may be compul- 
 sorily referred to an official or special referee (b). 
 
 Limited to Trial of Issues. The powers of 
 trial before official or special referees are limited to the 
 above. In spite of the R. S. C. (many of which 
 contemplate the trial of actions before official or 
 special referees), no such trial can be had before them. 
 They are merely to act as the eyes of the court, to 
 investigate facts, and to report those facts to the comi, 
 and upon that report the court gives judgment on the 
 action being set down on motion for judgment. " If 
 by consent, all the questions of fact in a cause are sent 
 to an official referee, and if there are no issues of law to 
 be afterwards decided by the court, then I incline to 
 think that the parties may relieve the official referee 
 from reporting or finding expressly as to each question 
 of fact, and that they may consent to his reporting to 
 the court the general effect of his finding of all the facts 
 in the form ' that, having tried all the issues of fact, he 
 found the result to be in favour of the plaintiff or the 
 defendant.' But I think that the referee has no juris- 
 
 (a) Jud. Act, 1873, s. oG ; and Longman v. JEast, supra; and 
 
 per Brett, L. .T., iMujman v. East, Ward v. rUleij, L. E,., .5 Q. B. D. 
 
 L. K., 3 C. P. D. 151. 427; lie Leigh, L. R., 3 Ch. D. 
 
 {b) Jiid. Act, 1873, s. 57 ; and 292.
 
 TRIAL OF ISSUES BEFORE REFEREE. 147 
 
 diction to order judgment to be entered, that must be 
 the act of the court " {c). 
 
 The report of any referee upon any question of fact 
 is equivalent to the verdict of a jiuy {d). In the case 
 of a report by an official referee under a reference of 
 issues to him by consent under sect. 06, the court or a 
 judge may differ from him as to any finding n-hich is 
 an inference from tite facts which he has reported, but 
 with regard to the facts themselves, and with regard to 
 his findings where issues have been referred to him under 
 sect. 57, the court must accept his finding unless they 
 can set it aside according to the ordinary rules which 
 would be applicable to the finding of a jury. It is open 
 to appeal, therefore, whether improper evidence has 
 been received, or whether the referee in considermg the 
 facts has, so to speak, misdirected himself. The court 
 can set aside the finding of the referee if they consider 
 that the finding is a finding against the evidence, and 
 in that case, if the issue were a material one, the court 
 would have to send back that issue to the referee or to 
 some other referee to be tried (e) . 
 
 But although qua referee, a referee, official or special, 
 can only report to the court, and only takes the place 
 of a jury, yet if the parties agree that he shall act as 
 arbitrator, it is within his option to accept or refuse 
 such a reference. If he accepts it, he is no longer acting 
 as referee under the statute ; he is merely an arbitrator 
 between the parties (./'). 
 
 Method of getting Issues referred. Issues 
 may be referred to an official or special referee at or at 
 
 {(■) Per Brett, L. J., Zoiir/man (c) Per Brett, L.J,, Loniiman 
 
 V. East, supra. v. East, supra, 
 
 (rf) Jud. Act, 1873, 8. 58. (/) lb. 
 
 l2
 
 148 TRIAL OF THE ACTION, OR OF ISSUES OF FACT IN IT. 
 
 any time before trial ; even when the action has been 
 specially transferred to the junior judge for trial (g). 
 When the application is made before trial a summons 
 should be taken out for that purpose, and an order 
 obtained in chambers. When the order is made, the 
 order, or a duplicate of it, must be produced to such one 
 of the registrar's clerks whose duty it is to distribute 
 the business among the official referees, who thereupon 
 indorses on each order the name of the official referee 
 to whom it is assigned (//). But the court may never- 
 theless, where expedient, refer an action to a particular 
 official referee (i). 
 
 When the official referee to whom the action is 
 referred is settled, the solicitor should take the order to 
 the chambers of the referee in question, and ask for an 
 appointment for the hearing of the questions referred 
 to him. The referee's clerk will thereupon draw up an 
 appointment, notice of which must be forthwith served 
 on all the other parties. The official referee may 
 (subject to the order of the court or a judge) hold the 
 trial at, or adjourn it to, wherever he deems it con- 
 venient, and have any inspection or view, and evidence 
 is taken before him, and the attendance of witnesses 
 enforced by subpoena, and generally the trial is con- 
 ducted as a trial before the court would be, except that 
 it is not pubHc, and that he must (unless otherwise 
 ordered by the court or a judge) proceed de die in 
 diem (J). 
 
 The official referee has the same authority in the 
 conduct of a trial as a judge (/r). But he cannot 
 
 (r/) R. S. C, Ord. LI. r. la. {,) lb. r. 29c. 
 
 (/,) R. S. C, Ord. XXXVI. r. (J) lb. rr. 30, 31. 
 
 29b. (/•) lb. r. 32.
 
 TRIAL OF ISSUES BEFORE REFEREE, 149 
 
 commit any person to prison, or enforce any order Ly 
 attachment or otherwise {I) ; nor make an order for pro- 
 duction of documents or other interlocutory order {»>). 
 He may either during the trial, or by his report to 
 the court, submit any question- for the decision of the 
 court, or state any facts specially, with power to the 
 court to draw inferences therefrom, and in any such 
 case the order to be made on such submission or state- 
 ment is to be entered as the court directs («). The 
 court also has power to require any reasons or explana- 
 tions from a referee, and to remit the cause or matter, 
 or any part thereof for re-trial, or further consideration, 
 to the same or any other referee ; or the court may decide 
 the question referred to any referee on the evidence 
 taken before him, either with or without additional 
 evidence, as the court may direct (o) . 
 
 References for Inquiry. Besides referring issues 
 for trial, the court or judge may refer any question 
 arising in an action or matter to an official or special 
 referee for inquiry and report (^;). In such cases the 
 referee does not act as a jury, but rather as an assessor; 
 and the court is not bound by his report, and a sum- 
 mons to adopt the report should be taken out, on the 
 report being made (17). 
 
 (l) R. S. C, Ord. XXXVI. (0) lb. 
 
 r. 33. (p) Jud. Act, 1873, s. 5G. 
 
 {>») DauviUicrny. Mi/C)-s,Ij.'R., (7) JFood v. Barnicot, W. N. 
 
 17 Ch. D. 346. 1878, pp. 2.5, 3G. 
 
 («) lb. r. 34.
 
 ( 150 ) 
 
 Sub-division VI. 
 Motion for Judgment. 
 
 With regard to the facts in respect of wliicli relief is 
 claimed, they are either : — 
 
 (1) Disputed and tried — 
 
 (a) before a judge ; 
 
 (b) before a judge and assessors or a jury ; 
 
 (c) before a referee ; or 
 
 (2) Undisputed and — 
 
 (a) specifically admitted ; 
 
 (b) impliedly admitted by default of pleading. 
 
 "When facts are disputed and tried before a judge, 
 judgment is invariably pronounced by him either forth- 
 with, or after he has taken time to consider his decision ; 
 and so where the whole action is tried before a judge 
 and jury, very frequently the judge will dehver judg- 
 ment forthwith where the matter is simple {c. y., where 
 an injunction, or specific performance, or the like, is 
 claimed). But it is ob\dous that in all the other cases 
 mentioned above something further has to be done after 
 the facts are determined or admitted before judgment 
 can be had. With regard to the case of facts speci- 
 fically admitted, we have abeady fidly considered it 
 (page 100), and, therefore, we have now only to con- 
 sider (1) cases in which facts have been refeiTed to a 
 referee, and (2) cases in which default has been made in 
 pleading, and in both these cases judgment is obtained 
 on motion for judgment.
 
 MOTION FOR JUDGMENT. 151 
 
 Judgment on Referee's Report. If only some 
 of the issues in an action have been referred for trial 
 to a referee, then unless the result of such reference 
 makes it unnecessary to determine the rest, judgment 
 cannot be had until the other issues are decided, and 
 therefore those issues will be tried in the ordinary way, 
 and then the judge will either at the trial, or on motion 
 for judgment afterwards, give judgment on the whole 
 case. But where all the issues in an action have been 
 referred to a referee, then as there is nothing more to be 
 determined, the proper course is for the plaintiff to set 
 do^vn the action on motion for judgment. He may do 
 this immediately, and if he does not do so, and give 
 notice of motion to the other parties within ten days 
 after his right accrues, then at the expiration of such 
 ten days, any defendant may do so and give such 
 notice (a). And so where some only of the issues have 
 been decided, but the decision of them has rendered the 
 decision of the rest unnecessary, or has rendered it de- 
 sirable to postpone the decision of them, any party may 
 apply to the court or a judge for leave to set down the 
 action on motion for judgment without waiting for the 
 determination of such other issues, which leave may be 
 granted on such terms as may appear just, and the judge 
 may give any directions as to postponing the undeter- 
 mined issues (b). 
 
 As we have seen in Chapter VI. of Sub-division III., 
 the proper course in default of pleading is to set down 
 the action on motion for judgment. 
 
 {a) K. S. C, Ord. XL. r. 7. It L. K., 15 CIi. D. 474 ; but sec 
 
 would seem, however, that in contra, Hcddall v. JIaitlu/id, 17 ih. 
 
 that case the defendant cannot 183. 
 
 claim judgment on his counter- {/>) lb. r. 8. 
 claim. See Vacaseur v. Kriipp,
 
 152 MOTION FOR JUDGMENT. 
 
 Procedure on Motion for Judgment. Xo action 
 can, except by leave of the court or a judge, be set 
 do"WTL on motion for judgment after one year from the 
 date when the party might first have set it down (c). 
 Motions for judgment are not brought on as ordinary 
 motions on a motion day, but are set down in the cause 
 book, and come in ordinary course among the actions for 
 trial. 
 
 Notice of Motion for Judgment. The party 
 setting down should first give to the other parties two 
 clear days' notice of his motion, and produce a copy of 
 such notice to the registrar on setting the motion down. 
 The day named in the notice (although generally not 
 the day on which the motion is likely to be heard) must 
 be a day on which the com-t sits (d). 
 
 The notice should be served in the same manner as 
 the pleadings ; that is to say, at the address for service 
 where an appearance has been entered, or by filing in 
 any other case. And it must be particularly re- 
 membered that unless the parties appear personally or 
 by counsel on the hearing of the motion, it vnR be 
 necessary to produce to the registrar before the rising of 
 the court, an affidavit of the service or a certificate of the 
 filing {e). 
 
 Where a motion for judgment cannot from the 
 nature of it last long, it may be marked "short" on 
 production of counsel's certificate, and -will then be 
 heard on the next succeeding short cause day, but in 
 that case the notice of motion should state that it is 
 intended to set it doA\Ti as short. 
 
 (c) R. S. C, Ord. XL. r. 9. (e) But queiy, now see Chwlton 
 
 ((f) Daubney v. Shuttleuorth , L. v. Ltckle, L. E., 13 Ch. D. 160. 
 R., 1 Ex. D. .53.
 
 MOTION FOR JUDGMENT. 153 
 
 Final or interlocutory. Upon a motion for 
 judgment, the court may either give final judgment, or 
 direct the motion to stand over for further consideration, 
 and direct such issues or questions to be determined, 
 and such accounts and enquiries to he made and taken, 
 as it may think fit (/). 
 
 Liberty to apply. A judgment unless absolutely 
 final almost invariably reserves " liberty to apply as 
 the parties may be advised," but it would seem that, 
 even where this is omitted, liberty to apply is implied 
 in every judgment and order of the court {g) . 
 
 {/) R. S. C, Ord. XL. r. 10. (r/) Fritz v. Eobsoii, L. R., 14 
 
 Ch. D. 542.
 
 ( 154 ) 
 
 Sub-division VII. 
 The Judgment. 
 
 The judgment in actions properly commenced in the 
 Chancery Division is always delivered by the court. 
 In actions appropriate to the Queen's Bench Division, 
 the plaintiff may, in many of them, mjn judgment 
 himself in default of appearance, and then of course the 
 judgment is not delivered by the court. Such actions 
 are actions for liquidated demands, and for recovery of 
 land ; or where the claim is for damages for detention 
 of goods, and for return of the goods or either of them, 
 he may enter interlocutory judgment, and a writ of 
 enquiry to the sheriff to assess damages mil be issued, 
 or some other mode of ascertaining the damages ■will be 
 directed {a). Such actions are, however, inappro- 
 priately brought in the Chancery Division, and judg- 
 ment in all actions properly brought in that di^-ision must 
 be delivered in coui-t, either on the hearing of the action, 
 or on motion for judgment. 
 
 Minutes. On short actions, where the parties are 
 agreed or practically agreed on the form of the judg- 
 ment, minutes are usually prepared by the plaintiff's 
 counsel, which are submitted to the counsel for the 
 defendants for their approval. These minutes are in 
 effect a di-aft of the operative part of the judgment, 
 omitting the recitals of evidence, &c., which are after- 
 wards added by the registrar. 
 
 (ff) E. S. C, Ord. XIII. IT. ;"). 7 and C.
 
 THE JUDGMENT. 155 
 
 Bespeaking Judgment. In contested actions, 
 the registrar in attendance on the court, and also the 
 counsel engaged, take a note of the judgment as deli- 
 vered by the judge. Within seven days after the 
 judgment is pronounced (J), one of the 'parties must 
 " bespeak" or request judgment to bo dra^vn up, and 
 leave with the clerk of the registrar, his senior counsel's 
 brief, and any documents or evidence required to be 
 produced at the court (c) ; office copies of affidavits and 
 exhibits used [d] ; orders authorizing the proof of docu- 
 ments at the trial by rivd voce evidence or by affidavit, 
 and the documents themselves (c) ; the certificate of the 
 paymaster-general's chief clerk with regard to funds 
 in court dealt with by the judgment, and any restrain- 
 ing order with regard to any such funds (./') ; probates 
 or letters of administration (g) ; and generally all such 
 other documents as may be necessary to enable the 
 registrar to draw up the judgment. 
 
 The practitioner must never forget that where any 
 party does not appear at the hearing or motion, an 
 affidavit of service of the notice of trial or notice of 
 motion, as the case may be, or (where such party has 
 not entered an appearance) a certificate of the filing 
 of such notice, must be produced to the registrar before 
 the rising of the court on the day of the hearing (//). 
 
 At the time named by the clerk to the registrar, the 
 solicitor to the party bespeaking the judgment applies 
 at the registrar's office for a draft of the judgment, 
 
 (i) Cons. Ord. I. rr. 20, 21, 22. (/) lb. r. 16. 
 
 (c) Regs. Rules, March, 1860, (y) lb. r. 17. 
 
 r. 15. (/() lb. r. 21; but querj', now 
 
 (d) lb. r. 27. sec Charlton v. Dickie, L. R., 13 
 {e) lb. r. 28. Ch. D. 160.
 
 156 THE JUDGMENT. 
 
 and with this draft the registrar delivers a written 
 appointment of the time fixed by him for settling the 
 same (/) ; copies of this appointment must be served 
 on the other parties at the place for service, either by 
 hand or by post, one clear day at least before such 
 dayO'). 
 
 On the day appointed, all parties who please, attend 
 before the registrar at his office, with their briefs and 
 other documents, and the judgment is then settled. If 
 any party fails to attend, the party bespeaking the 
 judgment must produce the original appointment, with 
 a memorandum of service on it, signed by the person 
 who served it ; but the registrar may, if he thinks fit, 
 require this memorandum to be verified by affidavit (k) . 
 
 Varying Judgment. If any question arise as to 
 the proper form of the judgment, the action is replaced 
 in the paper to be " spoken to on the minutes," and 
 thereupon the judge states what was the exact decree 
 pronounced ; but unless by consent, he will not vary the 
 judgment as pronounced. 
 
 When a mistake is obvious on the minutes, and the 
 registrar refuses to make the necessary alterations, the 
 court must be moved, on notice of motion, to vary the 
 minutes ; but the registrar may by consent make such 
 alterations himself as the court woidd sanction (/). 
 
 Passing the Judgment. The minutes having 
 been thus settled, the registrar names a time for passing 
 the judgment, or delivers out a written appointment 
 for that purpose (and in the latter case copies of such 
 appointment must be duly served) . On the day named, 
 
 (0 Cons. Ord. I. r. 23. (/) Davenport v. Stafford, 8 B. 
 
 [j) lb. rr. 24 and 25. 503. 
 
 (/.) lb. r. 26.
 
 THE JUDGMENT. 157 
 
 the judgment liaving been drawn up from the minutes, 
 by one of the registrar's clerks, is perused by the 
 registrar in the presence of such of the parties as please 
 to attend ; and, if found correct, he passes the decree, 
 by inserting his initials in the margin at the end, as an 
 authority to the entering clerk to enter it in the regis- 
 trar's book. 
 
 Entering" Judgment. The registrar's assistant 
 clerk leaves the judgment for this purpose with the 
 entering clerk at his seat in the registrar's office, to- 
 gether with a copy of the pleadings (in), and the latter 
 enters it : the judgment may generally be obtained on 
 the second day after it is left for entry, on application 
 to the assistant clerk. 
 
 The registrar's books contain copies of all judgments 
 made by the court, and two of these books are provided 
 every Michaelmas term, one being reserved for actions 
 where the first letter of the first plaintiflE's name is 
 found in the earlier half of the alphabet, and the other 
 for actions where such first letter is found in the latter 
 half. The books themselves are designated A. and B., 
 and are referred to by the year and folio or page, thus : 
 Eeg. Lib. 1880, f. 250." 
 
 Form of the Judgment. The judgment consists 
 of the title and date on which the judgment is de- 
 livered, a statement of the proceeding on which the 
 judgment was given, of the presence or absence of the 
 parties or any of them, and of the evidence ; then comes 
 what may be called the operative part, which consists 
 (where necessary) of a declaration of right (which is 
 equivalent to the verdict of a jury on a matter of fact), 
 and then comes the ordering part, where necessary. 
 
 {in) R. S. C, Old. XLI. r. 1.
 
 158 THE JUDGMENT. 
 
 With regard to the statement of the evidence it is 
 important to remember, that even where a plaintiff is 
 nonsuited ^vithout the defendant being heard, yet it is 
 sometimes desirable to have the defendant's evidence 
 stated ia the judgment ; for if an appeal be brought, 
 and the respondent use evidence which was not used on 
 the hearing in the court below, he will often be left to 
 bear his own costs, and the Court of Appeal cannot look 
 to anything but the judgment to ascertain what was 
 used on the former occasion. 
 
 Sometimes a judgment ends with a declaration of 
 right, without ordering anything to be done ; such 
 cases most frequently occur in actions instituted for the 
 purpose of ascertaining the true construction of written 
 instruments. 
 
 On the other hand, judgments sometimes contain no 
 declaration of right, the operative part being merely 
 composed of the ordering part. Sometimes (as in cases 
 of injimction, specific, performance and the like) the 
 order is final and immediate, but more often it is merely 
 for accounts and enquiries to be taken in the judges' 
 chambers; and where damages are claimed, they are 
 never assessed by the judge in court, but the right to 
 some damages having been declared, an enquiry is 
 directed to assess them, either before the judge's chief 
 clerk, or an official or special referee. 
 
 When a judgment orders a party to do some act 
 other than the pa}Tnent of money, it should name a 
 time Avithin which the act is to be done («), otherwise 
 it will be defective ; and before execution by attach- 
 ment can be issued, it will be necessary to get a supple- 
 mental order naming such time. This order will be 
 
 [h) Cons. Orel. XXIII. r. 10.
 
 THE JUDGMENT. 150 
 
 made on motion, of which the ordinary notice must be 
 given (o). 
 
 Ofl&ce Copies. When a judgment has been passed 
 and entered, office copies of it can be obtained in the 
 usual way. 
 
 Mistake in Judgment passed and entered. 
 A consent to a judgment, if given by mistake, may be 
 withdrawn before the judgment is passed and entered, 
 and apphcation may be made to the court to vary it 
 accordingly ; but after it has been passed and entered, 
 a judgment cannot be varied or added to, except where , 
 there has been a mistake, such as would suffice to set 
 aside an agreement to the like elfect {]}), or unless by I 
 consent (»/), or unless there is a trivial error, slip or 
 omission (r) ; by which I mean, not a mere clerical 
 error, but any obvious slip, such, for instance, as where 
 the direction to mortgagor in a redemption suit to pay 
 principal, interest and costs Avithin six months (.s), or 
 a direction to have a deed settled in chambers, has 
 been omitted {t). In all such cases the application to 
 vary should be by motion {u), although in case of very 
 trivial errors the registrar will sometimes make the 
 alteration himself. 
 
 Further enquiries, &C. Where, however, it ap- 
 pears that further enquiries or accounts should be 
 taken or made, the judge may order the same on 
 summons in chambers (r) ; and where a person, not 
 a party, has been served with notice of the judgment, 
 
 (o) Daniell's Ch. Pr. 904. (>•) Cous. Ord. XXIII. r. 21. 
 
 ip) Holt V. Jesse, L. R., 3Ch. D. [s) Bird v. Heath, 6 Ha. 23G. 
 
 177; Att.-Gcn. v. Tomlinc, L. R., U) Trerrhjanv. Charier, ^B. 140. 
 
 7 Ch. D. .ISS. («) li. S. C, Old. XLLi. 
 
 {q) King v. Sarory, 2 Jur. 431. (r) Cons. Ord. XXXV. r. 19.
 
 160 THE JUDGMENT. 
 
 lie may, -witliin one montli after service, apply to add 
 to it. 
 
 In all other cases, the judgment can only be varied 
 or added to, either by getting an order on petition to 
 have the case reheard, or on appeal, unless the parties 
 consent (u) . 
 
 Amending Irregularities. It is convenient to 
 state at this place, that non-compliance with the rules 
 of procedure does not render the proceedings void un- 
 less the court or a judge so direct, but such proceed- 
 ings may be set aside or varied on terms or otherAvise (r), 
 and the court or judge may at any time upon terms or 
 otherwise amend any defect or error in any proceed- 
 ings {ic). 
 
 (m) Eingy.Saverij,2 3viV.,'^. S. («-) R. S. C, Ord. LIX. r. 1. 
 
 431 ; Hughes v. Jones, 26 B. 24. \iv) lb. r. 2 (1880).
 
 ( 161 ) 
 
 Sub- DIVISION VIIT. 
 
 Proceedings in Chambers under the 
 Judgment. 
 
 Chapter I. — Suiiiioxs to proceed. 
 
 CiLiPTER II. — Accounts. 
 
 Chapter III. — Inquiries. 
 
 Chapter IV. — Sales. 
 
 Chapter V. — The Chief Clerk's Certificate. 
 
 CHAPTER I. 
 
 THE SUMMONS TO PROCEED. 
 
 In many actions, for instance, where an injunction or a 
 declaration of a right or the construction of a docu- 
 ment or similar simple relief is sought, the action ends 
 with the judgment, save so far as the taxation of 
 costs and enforcing of the judgment are concerned, 
 of which hereafter. But in many other actions, 
 such as those for administration of trusts or the es- 
 tates of deceased persons, for foreclosure or sale of 
 mortgaged estates, specific performance of contracts for 
 the sale of real estate, and the like, the judgment is 
 (as has been remarked above) preliminary to the real 
 fight, and merely consists of an order to take certain 
 accounts and inquiries {a). As was stated in the intro- 
 duction, each of the four senior judges has a staff of 
 three chief clerks, each of whom has his junior clerks, 
 
 («) R. S. C, OrJ. XL. r. 10. 
 U. M
 
 162 PROCEEDINGS IN CHAMBERS INDER THE JUDGMENT. 
 
 and it is to these chief clerks that the duty of taking 
 accounts and making inquiries is delegated. 
 
 These officials attend at ehamhers daily (with certain 
 modifications diu'ing vacation), and the business of 
 each judge is divided among his chief clerks by the 
 first letter of the plaintiff's name, one taking from A 
 to F ; another from Gr to N, and the third from 
 to Z. A list of the causes to be disposed of by 
 each is daily hung up outside the door of the 
 chambers. 
 
 Summons to proceed. When a judgment is pro- 
 nounced which orders accounts or inquiries to be taken 
 or made, the party having the carriage of the judg- 
 ment (who is usually the plaintiff), takes a copy of the 
 judgment, indorsed by the solicitor with a certificate of 
 its correctness, to the judge's chambers, and presents it 
 to the clerk sitting in the outer room. This official 
 then consults the appointment book of the chief clerk 
 to whom the case falls, and informs the solicitor of the 
 earliest day and hour at which the chief clerk %vill be 
 disengaged, so as to be able to proceed with the business 
 ordered by the judgment. The time so fixed is then 
 entered by this clerk in the " summons and appoint- 
 ment book," and he seals a summons in the follow- 
 ing form : — 
 
 1880. B. No. 150. 
 In the High Coui-t of Justice, • 
 Chancery Division. 
 V.-C. HaU. 
 
 Between John Brown PlaintiflP, 
 
 and 
 
 Joseph Smith Defendant. 
 
 Let all parties concerned attend at my chambers, Royal Courts of 
 Justice, Middlesex, on the 29th day of November, 1880, at 11 o'clock 
 in the forenoon, on the heariorr of an application on the part of the
 
 TIIF, SUMMONS TO PROCEED. 163 
 
 plaintiff to proceed with the accoimts auil inquiries directed to be 
 taken and made by the judgment in this action dated the 1st day of 
 August, 1880. 
 
 Dated this 20th day of November, 1880. 
 
 This summons is taken out by George Robinson, of No. 700, 
 Cheapside, in the City of London, solicitor for the above-named 
 plaintiff. 
 
 To Mr. William Jones, solicitor for the above-named defendant. 
 
 Issue and Service of Summons to proceed. 
 
 This summons is prepared by the plaintiffs solicitor, 
 who takes two copies to the judge's chambers, one of 
 which is filed and the other sealed by the clerk there. 
 Further copies are then made for service, which is 
 effected by delivering a copy, and at the same time 
 showing the sealed original; or where default has 
 been made in appearance, service is effected by filing 
 with the proper officer. The summons must be served 
 seven clear days before it is returnable (/. e. the day 
 fixed for the hearing of it) ; and if this cannot be 
 effected, the latter day will be altered, and a new one 
 endorsed, the endorsement being sealed. 
 
 Hearing of the Summons. At the time ap- 
 pointed, the parties attend personally or by their solici- 
 tors (but not by counsel) , and the chief clerk then gives 
 directions as to how the accounts and inquiries are to be 
 taken and made, and fixes times for the accounts to be 
 brought in, and for the inquiries to be made, and for 
 the further attendance of the parties. 
 
 Summoning Witnesses. By the 30th section of 
 the Chancery Procedure Act the chief clerks have power 
 to summon witnesses to attend and give evidence. Such 
 summonses are served like, and have the effect of, 
 subpoenas. 
 
 m2
 
 164 PROCEEDINGS IN CHAMBERS UKDER THE JUDGMENT. 
 
 CHAPTEE II. 
 
 ACCOUNTS. 
 
 Bringing in the Account. At the time fixed by 
 the chief clerk on the hearing of the summons to pro- 
 ceed, the accounting party makes an affidavit verifying 
 the statements of an account which is annexed to the 
 affidavit by way of exhibit ; and this affidavit and the 
 exhibit are brought into chambers and left with the 
 jimior clerk in the outer room. 
 
 The form of such an affidavit and exhibit will be 
 found in Daniell's Forms, by Upjohn. 
 
 The account is written on foolscap paper, bookwise {h), 
 and the items on each side of the account are numbered 
 consecutively. No costs paid to the solicitor of the 
 accounting party should appear, as they are costs in the 
 action, and are disposed of subsequently. If necessary, 
 further accounts must be brought in from time to time, 
 to bring the account down to the date of the chief 
 clerk's certificate. 
 
 The accounting party, on the same day that he leaves 
 the account at chambers, should give notice of the fact 
 to the other parties, and also state that he has (as he 
 must have done) filed an affidavit in support, and they 
 may then obtain copies on application (c). 
 
 Vouchers. Besides the affidavit, the account must 
 be supported by the production of receipts for every 
 payment over 2/., which are accepted as ^Jrimd facie evi- 
 dence of the payments in respect of which they are ex- 
 pressed to have been given ; but if any reasonable ground 
 is shown for doubting their genuineness, the affidavit of 
 
 (i) Regs. 8th Aug. 1857, r. 17. (r) Cons. Ord. XXXVI.
 
 ACCOUNTS. 1G5 
 
 tlio party giving the receipt is required, or evidence of 
 his liandwriting must be produced. 
 
 This is the usual mode of verifying accounts, but the 
 court may give special directions, either when directing 
 the account to be taken or subsequently ; and in par- 
 ticular may order that in taking the account, any book 
 of account in which the accounts required to be taken 
 have been kept, shall be 2)n'»ui facie evidence of the 
 truth of the matters contained in it [d). 
 
 Objections, how taken. When the account has 
 been brought in, any party interested may give notice 
 to the accounting party of any objections which he may 
 entertain to particular items, specifying them by their 
 numbers, and specifying the grounds of his objection. 
 
 Taking the Account. On the day appointed for 
 going into the accounts, the chief clerk goes through 
 them, sees that they are properly verified, and also dis- 
 poses of the objections, or marks such of them as 
 queried which cannot be then and there satisfactorily 
 explained, and the accounting party must then obtain 
 further time for explaining and verifying them, or they 
 will be disallowed. 
 
 Finally, if the alterations in the account are con- 
 siderable, a transcript is made of the whole as altered, 
 and the result of the account is finally summed up in 
 the form of a certificate of the chief clerk, which ho 
 subsequently submits and explains to the judge, who 
 usually adopts and signs it. 
 
 {(I) 1.) & lU Vict. c. 80, s. h\.
 
 166 PROCEEDINGS IN CHAMBERS UNDER THE JUDGMENT, 
 
 CHAPTER III. 
 
 INQUIRIES. 
 
 These generally relate to incumbrances affecting pro- 
 perty, or to title to property; to the persons beneficially 
 entitled to property; to heirs, next of kin, creditors, 
 legatees, devisees and annuitants ; or as to damages or 
 other facts necessary to be known before a proper and 
 final judgment can be pronounced. 
 
 Advertisements. With respect to inquiries con- 
 cerning incumbrances, title to property, damages or the 
 like, such matters are generally proved by affidavit, and 
 by production of the documents in the usual way ; but 
 in the case of inquiries as to persons beneficially en- 
 titled, whether as heirs, next of kin, or creditors, or 
 as devisees, legatees or annuitants not specifically named 
 in the ni'/l, it is generally necessary to advertise for them 
 in the London Grazette and the Times. These adver- 
 tisements are prepared by the party having the carriage 
 of the judgment, and are submitted by him to the chief 
 clerk for approval, and when approved are signed by 
 the latter, which is sufficient authority to the printer of 
 the Grazette to insert them (e) . 
 
 '\Vhere, however, the usual statutory advertisements 
 for creditors have been already made by the executor or 
 administrator, it is not usual for the chief clerk to direct 
 any fm-ther advertisements. 
 
 One advertisement only is visually ordered, but under 
 special circumstances any number may be directed (/). 
 As evidence of the advertisements, the party having the 
 carriage of the judgment should produce to the chief 
 
 (c) Coi3.'>. Ord. XXXV. r. 36. (/) lb. r. 3-5.
 
 INQUIRIES. 167 
 
 clerk copies of all papers wherein the advertisements 
 have been inserted {[/) . 
 
 Party claiming an Interest. Any person 
 (other than a creditor) wishing to make any claim in 
 consequence of an advertisement, may do so by entering 
 his name at the judge's chambers in the claim book, 
 and filing an affidavit in support, and giving notice 
 thereof to the solicitors in the action within the time 
 fixed by the advertisement (//) : on the day appointed 
 for going into the inquiry, the parties attend, and the 
 chief clerk adjudicates on the matter, or adjourns it, 
 either simply or for further evidence, and either with or 
 without special directions as to the nature of such 
 evidence (/). 
 
 In case of an adjournment, any new claimant may 
 enter his claim within four clear days before the hearing 
 is resumed ; provided that the chief clerk has not in the 
 meantime made any certificate of debts or claims (y). 
 
 Creditors' Claims. With respect to the claims of 
 creditors, the procedure is different, as such claims have 
 not to be entered, but must be sent to the executor or 
 administrator of the deceased, or to their soHcitor, or to 
 such other person as the chief clerk may direct, and 
 must specify (1) the name and address of the claimant ; 
 (2) full particulars of his claim, and statement of his 
 account ; and (3) the nature of his security, if any (/.•). 
 
 In any action for the administration of the estate of 
 a deceased person, no party other than the executor or 
 administrator, or such other party appointed as aforesaid, 
 is entitled to appear on the claim of a person not a party (/). 
 
 iff) Daniell's Prac. 1092. (/} Ord. XXVII., Mar. 1805, 
 
 (/O Cons. Ord. XXXV. r. 38. r. 1.' 
 
 (') lb. r. 40. (/) R. S. C, Ord. XVI. r. Tib. 
 (./) lb. r. 41.
 
 168 PROCEEDINGS IN CHAMBERS UNDER THE JUDGMENT. 
 
 Date for sending in Claims by Creditors. 
 
 Claims are usually directed to be sent in Avithin one 
 month, and the date of the adjudication upon them is 
 fixed for three or sometimes four weeks subsequently. 
 
 No claim is received after the date fixed, unless by 
 special leave, granted on summons (m), or imless the 
 day of adjudication is adjourned, Avhen claims may be 
 sent in up to four daj's before the day to which it is 
 adjourned (n). 
 
 The person to whom the claims are to be sent examines 
 them, and must, at least seven clear days before the 
 date of the adjudication, file an affidavit, either alone 
 or jointly, with the solicitor or other skilled partj^ 
 or otherwise as the chief clerk directs, verifying a list 
 of the claims, the particulars of which have been sent 
 in, and stating to which of such claims, or parts thereof 
 respectively, the estate of the deceased is, in the opinion 
 of the deponent, justly liable ; and his belief that such 
 claims, or parts thereof respectively, are justly due and 
 proper to be allowed, and the reasons for his belief (o) ; 
 but the chief clerk may direct the making of this affi- 
 davit to be postponed until after the day of the adjudi- 
 cation, and it is then to be subject to such directions as 
 he may give (j)). 
 
 Adjudication on Claims of Creditors. On the 
 day fixed for the adjudication the chief clerk goes through 
 the list, and allows such of them as he thinks fit without 
 evidence, and directs such investigations to be made of 
 all or any of the claims not allowed, and requires such 
 further particulars, information, or evidence in respect 
 of them, as he thinks fit ; and he may also require any 
 
 (m) Ord. XXVII. r. 10. (o) lb. r. 5. 
 
 (n) lb. r. 9. (;;) lb. r. G.
 
 iN(iUiRi?:s. 169 
 
 creditor to attend and prove his claim, and the adjudi- 
 cation is then adjourned to a date then named (</). 
 
 Notice is then given to each creditor, by the party to 
 whom claims are to be sent, informing those whoso 
 claims are admitted of that fact, and requiring those 
 whose claims are not admitted to attend on the day to 
 which the adjudication has been adjourned, and prove 
 their claims ; and unless they attend their claims will bo 
 disallowed {>•). 
 
 These notices must be sent out, not less than seven days 
 before the date fixed for the adjourned adjudication (•>-•), 
 by prepaid letter addressed to the claimant or his solicitor 
 at the address mentioned in the claim (unless otherwise 
 directed) {f) : and unless this notice be given, the cre- 
 ditor need not attend or prove his claim, either on the 
 original day of the adjudication, or on the day of the 
 adjourned adjudication, unless, indeed, he holds a secu- 
 rity, when he must produce it on the day of the original 
 adjudication (u). 
 
 When a claim is allowed, the chief clerk marks it as 
 allowed, and he may require an alphabetical list to be 
 left at the chambers of all claims wliich arc eventually 
 allowed (/•). 
 
 Evidence. With regard to the proof of claims for 
 which proof is required, simple contract debts are proved 
 by affidavit (filed in tlie central office and not in the 
 district registry («•)), verify iug the particulars of the 
 account, which latter must be referred to by way of 
 exhibit. Specialty debts are similarly proved, the spe- 
 
 i'j) lb. r. 7. (u) lb. r. 2. 
 
 (>■) lb. r. 8. (r) Cous. Orel. XXXV. r. 11. 
 
 (s) lb. (u) R. S. C, Ord. XIX. r. 'JDa. 
 (0 lb. r. 13.
 
 170 PROCEEDINGS IN CHAMBERS UNDER THE JUDGMENT. 
 
 cialtv being cxliibited; and a claimant may be cross- 
 examined on his affidavit before an examiner, or before 
 the chief clerk himself {x). 
 
 Where a creditor cannot prove his claim without the 
 aid of documents in the possession of the executors or 
 administrators of the deceased, he may compel them to 
 produce them on oath (//). 
 
 Creditors' Costs. A creditor who has established 
 his claim, is entitled to his costs, to be fixed by the chief 
 clerk, unless he thinks fit to direct that they be taxed ; 
 and the amount of such costs is added to the debt (~). 
 On the other hand, where a claitu is successfully resisted, 
 the court may order the costs of resisting it to be paid 
 by the claimant (ri) . 
 
 CHAPTER lY. 
 
 SALES. 
 
 It is frequently ordered by the judgment, that real 
 estate " be sold with the approbation of the judge." In 
 such cases, whenever the action is for the administration 
 of a trust, and the trust instrument contains a trust for, 
 or power of, sale in, the trustees, they are the proper 
 parties to conduct the sale unless the court directs other- 
 wise (b) . In other cases, the plaintiff is the proper party, 
 and is considered the agent for all parties concerned (c). 
 
 {x) Cast V. Fayser, 26 L. J. (a) Satch v. Scarlcs, 2 Sm. & 
 
 (N. S.) Ch. 353; LentonwBrudc- G. 146; Cobjer v. Cohjer, 10 W. 
 
 we^/, 12'W. R. 1127. R. 748; Bentky v. Bcntley, 7 
 
 (y) McVeaghx. Croall, IDeG., L. T., N. S. 819. 
 J. & S. 399; andR. S. C, Ord. [h) R. S. C, Ord. LIT. r. Ga. 
 
 XXXI. r. 11. {,) JJalhj V. rullcn, 1 R. & M. 
 
 (c) Cons. Ord. XL. r. 24 ; and 296 ; Laic v. Hamilton, 10 Ha. 
 
 Gen. Ord. May 27, 1865, r. 14. App. 7.
 
 SALES, 171 
 
 Incumbrances. "Where tlio property is incum- 
 bered, it cannot be sold free from incumbrances, -svitbout 
 the incumbrancer's consent ; and the judg-ment directing 
 the sale, runs " free from the incumbrances of such of 
 the incumbrancers as consent thereto, and subject to the 
 incumbrances of such of them as do not," and an inquiry 
 is invariably directed as to what incumbrances there are, 
 and what are their priorities, proof of which is usually 
 furnished by the affidavit of the party conducting the 
 sale. 
 
 Mode of Sale. Tlio chief clerk, on the hearing of 
 summons to proceed, gives directions as to the mode of 
 sale (usually by auction) , and as to the place and auc- 
 tioneer. Sometimes a sale by private contract is sanc- 
 tioned upon evidence of beneficial character of the oifer. 
 The chief clerk also directs an advertisement to be pre- 
 pared and published in the Gazette, and also in some of 
 the local papers. This advertisement is prepared by the 
 solicitor of the party having the conduct of the sale, and 
 is then submitted by him to the chief clerk for approval, 
 and, being signed by him, is duly publislied. 
 
 Abstract and Conditions of Sale. The solicitor 
 of the party having the conduct of the sale, also prepares 
 an abstract of the title and particulars and conditions 
 of sale (in the form provided by Schod. 7 of the Reg. 
 8th August, 1857), which must (unless otherwise or- 
 dered {d) ) be submitted to one of the conveyancing 
 counsel to the court, who advises on the title and on the 
 necessary conditions. For this purpose, the solicitor 
 obtains from the chief clerk a short memorandum or 
 minute signed by him, directing a reference to the con- 
 veyancing counsel. This minute is taken to such one 
 {(l) Sec Gibson v. WooUand, 24 L. J. (N. S.) Ch. 56.
 
 172 niOCEEDlNGS IN CHAMBERS UNDER THE JUDGMENT. 
 
 of the registrars' clerks whose duty it is to distribute 
 the business among the six conveyancing counsel, and 
 he indorses upon it the name of the counsel to whom it 
 is assigned, unless the matter is referred to a particular 
 counsel. This minute so indorsed, together with a copy 
 of the particulars and conditions marked by the chief 
 clerk, and the abstract, are then taken to the chambers 
 of the conveyancing counsel, by whom the particulars 
 and conditions are settled in the usual way. 
 
 The conditions when settled are fair-copied, carried 
 in to the judges' chambers, marked as approved by the 
 chief clerk, and then printed in the usual way, and 
 two printed copies (certified as correct by the solicitor) 
 must then be left at chambers (e). 
 
 Reserve Price. Yery frequently the chief clerk 
 fixes a reserve bidding for each lot, and in that case 
 a valuation must be made, by a competent surveyor, 
 of the property as a whole, and of each lot ; and he 
 must make an affidavit referring to the valuation by 
 way of exhibit (_/'). This affidavit must be filed, and 
 the chief clerk attended with an office copy of it. He 
 then fixes the reserve biddings in writing, and encloses 
 them in a sealed envelope, and delivers them to the 
 person appointed to sell. They must, however, not be 
 opened until the sale, and must not then, or afterwards, 
 be communicated to any person. If no bidding reaches 
 the reserved price, the property is declared not sold. 
 
 Where there is a reserved bidding, it should be made 
 the subject of a condition {{/). 
 
 The Sale. The auctioneer having been appointed, 
 a copy of the particulars and conditions (signed by the 
 
 {c) Regs. 8th Aug. 1857, r. U. (y) lb. r. 14. 
 
 (/) lb. r. 13.
 
 SALES. 173 
 
 chief clerk), and a form of bidding paper and aflidavit 
 of the result of the sale, are obtained by the solicitor 
 (for the use of the auctioneer) at the judges' chambers ; 
 and where there are reserved biddings, these papers are 
 enclosed with them in a sealed envelope. 
 
 The sale is conducted in much the usual way, the 
 result, however, being marked in the bidding paper as 
 thereby directed. No party to the action can bid ex- 
 cept by leave, which is occasionally given in the judg- 
 ment, but is more usually obtained in chambers on 
 summons. As a general rule, the leave will not be 
 given to the party conducting the sale (//), nor to persons 
 in fiduciary positions (/). After the sale the auctioneer 
 makes his affidavit of the result of the sale, which must 
 be filed, and an office copy left at the judges' chambers 
 one clear day at least before the day appointed for 
 settling the chief clerk's certificate of the result. On 
 the latter day, the certificate is signed by the chief 
 clerk, like any other certificate • (for which see iii/ra), 
 and this certificate must be adopted and signed by the 
 judge before the sale is considered to be approved. 
 
 Delivery of the Abstract. Within the period 
 appointed by the conditions (generally eight days after 
 the approval of the certificate), an abstract of title is 
 sent to the purchaser, and he sends in his requisitions ; 
 and the solicitor having the conduct of the sale replies 
 to them in the usual way ; but tlie nature of the ob- 
 jections and answers are matters of substantive law, 
 which will be found noticed in works on the Law of 
 Vendors and Purchasers. 
 
 (//) S'uliiei/ V. Ranger, 12 Sim. (<) GeUard v. Rumhlc, 9 Jur. 
 
 118. 1085 ; Fookij v. Qiiiltcr, '1 De G. 
 
 & J. 327.
 
 174 PROCEEDINGS IN CHAMBERS UNDER THE JUDGMENT. 
 
 If the solicitor neglects to deliver the abstract within 
 the time fixed by the conditions, the purchaser may 
 take out a summons to compel delivery of it. 
 
 Purchaser's Requisitions and Objections. If 
 the solicitor of the party conducting the sale and the 
 purchaser cannot agree on the requisitions, the disputed 
 point may be raised on summons, either by the pur- 
 chaser for an inquiry into the title, or by the party 
 conducting the sale for an order on the purchaser to 
 pay the purchase-money into court. The point in dis- 
 pute is then adjourned into court for argimient, or 
 sometimes referred to the conveyancing counsel ; and if 
 the title is certified to be bad, the purchaser applies by 
 summons (which must be served on all parties to the 
 action) to be discharged, and to have a return of his 
 deposit with interest at 4 per cent, per annum and his 
 costs {k). 
 
 Payment of Purchase-money. If, however, the 
 title is approved, the next step is the payment of the 
 purchase-money into court, for which purpose an order 
 will be made on the application of the pm-chaser by 
 summons, or (on his default) on the a^Dplication of the 
 party conducting the sale ; and where the estate is en- 
 cumbered, and is sold free from incumbrances, the sum- 
 mons should be for leave to pay off the incumbrancer, 
 and to pay the residue only into com-t. 
 
 The summons should also ask that the purchase- 
 money be not paid out without notice to the purchaser, 
 so that he may have a lien thereon until the conveyance 
 is duly executed, in which case it will be necessary to 
 serve him with any summons, petition or notice of any 
 
 (/•) See Seton on Decrees, 4tli od. Mil ct seq.
 
 SALES. 175 
 
 other proceeding asking for payment out, and to file an 
 affidavit of such service in case of liis non-appearance. 
 
 The order having been obtained, it is taken to the 
 office of the paymaster-general, and the money paid in 
 as described in Sub-division IX. If the order directs 
 that the purchase-money and interest are to be paid, 
 an affidavit of the amount of the interest must be made 
 and taken with the order. 
 
 Conveyance. The purchaser should not take pos- 
 session until he has accepted the title, as his doing so 
 is considered a waiver of all objections disclosed by the 
 ^^abitract (/) ; unless, indeed, the judge or the conditions 
 of sale authorize his doing so, subject to objections {ii>) ; 
 but this is rarely conceded (;?). 
 
 The conveyance is prepared by the purchaser, and 
 forwarded for perusal to the solicitor of the "paxty con- 
 ducting the sale, and executed in the ordinary way, 
 unless the parties cannot agree, in which case it must 
 be left at chambers to be settled there, and from thence 
 it is sent to the conveyancing counsel. 
 
 If any party having the legal estate refuses to exe- 
 cute it, he may be ordered to do so on summons, or (as 
 is more usual) a vesting order may be obtained on 
 summons, vesting the lands in the purchaser (o). 
 
 Any delay in the preparation, or perusal, or execu- 
 tion of the conveyance may be remedied by summons (p). 
 
 Opening Biddings. It was formerly the very in- 
 equitable practice of the court, even after the result of 
 
 (/) Wildiii(/ V. Andrews, 1 C. P. («) Jfti/ton v. .Uanseli, 2 B. 
 
 Coop. 380 ; Botcu v. fjlomon, 2i 260 ; Jlorris v. Hull, 12 Jur. 4. 
 B. 631. (o) 15 & 16 Vict. c. 55, s. 1 ; 
 
 (wi) Simpson v. Sadd, 4 Dc G., and Cons. Ord. XXXV. r. 1. 
 M. & G. 665. (;;) Dan. 1172, 1173.
 
 176 PROCEEDINGS IN CHAMBERS UNDER THE Jl'DGMENT. 
 
 the sale liad been certified, to order the estate to be 
 again offered for sale in ease any person offered a large 
 increase of price. This was called *' opening the bid- 
 dings," and has now been put an end to except in cases 
 of fraud or gross misconduct bordering on fraud in the 
 management of the sale {q), both in regard to sales by 
 auction and by private contract (r). 
 
 Resale. Where the property or any part of it is 
 not sold at the sale, or for any reason the contract is 
 rescinded, it may (if thought advisable) be again offered 
 for sale. For that purpose, a summons to proceed is 
 taken out, and served on all parties entitled to attend ; 
 and on the hearing of it a new time of sale is fixed, 
 and any necessary alterations made in the particulars 
 or conditions ; but generally it will not be necessary to 
 have the conditions again submitted to the convey- 
 ancing counsel, nor is it necessary to get fresh orders 
 for the sale (-v). 
 
 CHAPTER Y. 
 
 THE CHIEF clerk's CERTIFICATE. 
 
 "When everything has been done in chambers which 
 is directed by the decree, the result is embodied in the 
 form of a certificate by the chief clerk, to which is an- 
 nexed, by way of schedule, the account (if any) on which 
 it is founded [f). This certificate is prepared by the chief 
 
 {q) 30 & 31 Vict. c. 48, s. 7 ; {r) Xeuman v. Hook, L. E., IG 
 
 Griffiths V. Jones, L. R., 15 Eq. Ch. D. 561. 
 279 ; Broun v. Oakshot, 38 L. J., (*) Dan. 1163. 
 
 Ch. 717; Dehesy. Delies, L. E., (/) Hunter's Suit, 116. 
 
 20 Eci. 77.
 
 THE CHIEF clerk's CERTIFICATE. 177 
 
 clerk, aud the solicitor having the conduct of the pro- 
 ceedings obtains the draft, and furnishes copies of it to 
 the other solicitors in the action, upon being paid for 
 them after the usual rate, which is 4^/. per folio of 
 seventy-two words. 
 
 Settling Certificate. An appointment is made 
 by the chief clerk (upon the adjourned summons) to 
 settle the certificate, and notice of this must be given 
 to all parties : at the time appointed the respective 
 solicitors attend, and suggest any alterations which 
 they may desire, and the chief clerk settles the draft. 
 The law stationer of tlie judges' chambers then tran- 
 scribes the certificate, the solicitor who has the conduct 
 of the action paying his charges ; and when so tran- 
 scribed, it is signed by the chief clerk at an adjourn- 
 ment made for that purpose. But where from the 
 nature of the case (/. c, where it is very brief) the certi- 
 ficate can be drawn and copied in chambers while the 
 parties are present before the chief clerk, it must be 
 then completed and signed without adjournment (it). 
 
 Judge's Signature. Except where otherwise di- 
 rected by a judgment or order in relation to the com- 
 putation of interest or the apportionment of a fund (./•), 
 the certificate must be signed by the judge before it can 
 be acted on. This will be done without investigation 
 after four clear days have elapsed, unless any party in 
 the meantime takes out a summons to take the opinion 
 of the judge as to any point (//). The parties have the 
 same opportunity of taking the judge's opinion upon 
 any point directly the point is decided by the chief 
 clerk, and before the cei-tificate is made, but they may 
 postpone doing so until the certificate is made, and 
 within the four days above mentioned ; but the rule at 
 
 («) Cons. Old. XXXV. r. 18. (.r) lb. r. Ij. {>/) lb. ir. 49, oO. 
 V. N
 
 178 PllOCEEDINGS IN CHAMBERS UNDER THE JUDGMENT. 
 
 the Rolls lias hitlierto been that the objection must be 
 left in -wiiting at chambers before the signing of the 
 certificate by the chief clerk (s). Upon hearing the 
 summons the judge will either at once sign the certifi- 
 cate, or will remit it to the chief clerk with a direction 
 to vary it as the case may require ; and in some cases a 
 direction will be given to review or reconsider it {a). 
 
 Filing. After the certificate is signed b}^ the judge 
 it is forthwith filed by the chief clerk {h), and any 
 party may obtain office copies at the usual rate of 4d. 
 per folio. It may be here remarked, that all proceed- 
 ings, affidavits, &c. in chambers are filed in the central 
 office, and not in the district registry (c) . 
 
 Varying Certificate. After the certificate has 
 been signed, if any party wishes to vary or discharge 
 it, he must apply by summons or motion "svithin_dght_ 
 clear days after the filing [d) ; and unless he does so, the 
 certificate will not afterwards be varied, except upon 
 very special grounds, such as fraud, accident, mistake, 
 or the like {(') . 
 
 Where the application to the judge requires to be 
 argued, and the further consideration of the action is 
 about to be heard, the summons is frequently adjourned 
 into court to come on at the same time as the further 
 consideration of the action. In that case the registrar 
 will set down the summons with the action, upon pro- 
 duction to him of a note by the chief clerk to that effect. 
 
 (;) Rolls' Notice, 4tliMar. 1871. and see Jloirell v. Kirihtley, 8 De 
 
 («) Lnuhmy v. Cor/Ian, 12 Sim. G., M. «S: G. 325; Ashtonx. Wood, 
 
 607. ib. 698 ; lie Joins, 1 Giff. 284 ; 
 
 (i) E. S. C, Orel. XIX. r. 29a; Zambe v. Orton, 29 L. J., Ch. 
 
 Cons. Ord. XXXV. r. 5.5. 286 ; Tunicr v. Tiinwr, 1 J. & W. 
 
 {c) E. S. C, Ord. XIX. r. 29a. 39 ; froivxc v. Spnrghi, L. R., 5 
 
 {(1) Cons. Ord. XXXV. r. 52. Eq. 99 ; Briant v. TMntt, 17 W. 
 
 {(■) 15 c'c 10 Vift. c. 80. s. :M ; E. 274.
 
 ( 179 ) 
 
 Sub-division IX. 
 Proceedings in the Chancery Pay Office. 
 
 OxE of the comnionest proceedings in an action involv- 
 ing the administration of property, is the payment of 
 money, or the transfer of stock into or out of court. 
 
 Whenever a defendant admits that he holds a definite 
 sum of money or stock upon trust, the plaintiff is 
 entitled to have it brought into court, and can compel 
 this by interlocutory motion. The court may also order 
 a plaintiff to pay money or transfer stock into court. 
 The object of the court in all such cases, is to secure 
 the safety of the fund or stock in question as far as 
 possible, and of course the payment or transfer does 
 not affect the ultimate rights of the parties who may 
 be eventually adjudged to be beneficially entitled to it. 
 The procedure as to paying and transferring money or 
 stock into or out of court, is now regulated by the 
 statute 35 & 30 Vict. c. 44, and by the Chancery Funds 
 Eules, 1874, The act is hereafter called the Chancery 
 Funds (or C. F.) Act, and the rules the Chancery 
 Funds (or C. F.) Eules. 
 
 The C. F. Act then abolished the old practice and 
 the office of accountant-general of the court, and trans- 
 ferred his duties to the paymaster-general for the time 
 being, vesting in him all funds and money then stand- 
 ing in the name of the accountant-general, and making 
 the consolidated fund liable to make good to the suitors 
 of the court all money and securities which by that act 
 
 2i2
 
 180 PROCEEDINGS IN THE CHANCERY PAY OFFICE. 
 
 became vested in the pajTiiaster-general. The new 
 office thus created is called the Chancery Pay Ofiiee, 
 and its procedure is regulated by the very elaborate 
 provisions of the C. F. Eules, ■v\'ith which practitioners 
 are continually coming in collision, o^ing to the some- 
 what technical and uncompromising manner in which 
 they are enforced. 
 
 Judgments and Orders to be acted on by Pay- 
 master-General. Every order which is to be acted 
 on by the paymaster-general must be drawn up by and 
 entered with the registrars of the court, and, unless 
 very urgent, must be printed, except in cases where a 
 form can be used, in which cases they may be partly 
 printed and partly written. The printing must be on 
 judicature paper, and in a particular kind of type, and 
 the order itself must be intituled in the action or matter, 
 and must also (in the body of it) state not only the title 
 of the action or matter, but also the separate account (if 
 any) to which the money or securities are to be placed, 
 and the title of which account must not exceed in length 
 thirty-six words exclusive of the title of the action or 
 matter, unless good cause be shown for extending the 
 title {a) . The order must also state the exact amount 
 of the money or securities to be dealt with, and also the 
 amount at the date of the order already in court to the 
 credit of the same action or matter, and if the money 
 or securities or dividends of securities to be dealt with 
 under the order are not in court, the order must specify 
 the source from which they will be derived {b) ; and the 
 names of persons directed to pay in or transfer money 
 or securities must be stated in full, and not by re- 
 ference (c) ; and in every case the exact amount of 
 
 (a) C. F. rr. 7, 94. (6) lb. r. 8. {c) lb. r. 12.
 
 PROCEEDINGS IN THE CIIANCEKY I'AY OFFICE. 181 
 
 Tiioney or stock to be dealt with must be expressed in 
 the order when it can be ascertained {(J), and all suras 
 in the body of the order are to be expressed in words ; 
 but dates and sums in the schedule (if any) are to be in 
 figures {c) . However, we need not dwell upon these 
 regulations, because the duty of drawing up such 
 orders, and the control of the printing of them, is as- 
 signed to the registrars, and they may be assumed to 
 know their own business, although it is well for the 
 practitioner to see in passing the order that no error has 
 been made. 
 
 Every order to be acted on by the Chancery pay- 
 master is passed and entered in the usual way, but the 
 registrar at the same time must cause a duplicate to be 
 made. This duplicate and the original order is trans- 
 mitted by the registrar to the clerks of entries, who 
 examine them and tile the duplicate, and after marking 
 and stamping the original order return it to the registrar 
 for delivery to the parties (./'). 
 
 The registrar may also, according to the requirements 
 of the parties, cause additional copies of such orders to 
 be printed, and he then sends them to the central office, 
 whence they are duly certified and issued as office 
 copies {rj). 
 
 Clerical errors in an order may be amended in writing, 
 the order being sealed by the clerk of entries or a master 
 of the Supreme Court, as evidence that the duplicate 
 kept by them has been amended. No amendment is 
 allowed, however, to provide for a new state of circum- 
 stances which may have arisen since the order, nor to 
 
 {d) lb. r. 8. (/) lb. r. 18. 
 
 \e) lb. r. 15. {g) lb. r. 19.
 
 182 PROCEEDINGS IN THE CHANCERY PAY OFFICE. 
 
 extend tlie time named for paying in money or trans- 
 ferring securities (//.) . 
 
 Procedure. Money or securities may be paid or 
 transferred into, or deposited in court in an action or 
 matter with or without an order ; but in the latter case 
 it can only be paid in to the credit of the action gene- 
 rally, and not to the credit of a separate account in the 
 action, except a security for costs account (?). 
 
 When it is desired to pay money into court under an 
 order, the order is taken to the Chancery Pay Office, 
 and a direction bespoken from the paj'^master-general 
 to the Bank of England to receive the money, and 
 place it to the credit of the Chancery Pay Office account. 
 If there is no order, then a request is left at the Chan- 
 cery Pay Office, asking for the issue of a similar 
 direction. 
 
 This direction will in due course be issued, and must 
 be taken to the bank when the payment is made, and 
 the cashier will give a receipt for the money. The 
 bank returns the direction to the Chancery Pay Office, 
 together with a certificate of payment. The paymaster 
 then files in the central office a certificate of the pay- 
 ment having been made, an office co-pj of which cer- 
 tificate is good evidence of the facts therein stated (A-). 
 
 When securities are to be transferred into coirrt, a 
 similar application must be made for a direction addressed 
 to the bank or company in whoso books such securities 
 are standing, to make such transfer, which direction will 
 be a sufficient authority to them to effect the transfer. 
 
 After the transfer, the bank or company will return 
 the dhection to the Chancery Pay Office, together with 
 
 (//) C. F. r. Hi. [1] lb. r. 2.3. (/■) lb. it. 28—30.
 
 PROCEEDINGS IN THE CHA.NLEKY TAY OIFICE. 18-3 
 
 a certificate of the transfer, and the paymaster will then 
 make his certificate as in the case of money paid into 
 court (/). 
 
 Where securities are desired to be 'loponitcd in court, 
 the procedure is the same as upon payment in of money, 
 the securities being handed over to the Bank of England 
 for safe custody (/). 
 
 Where no Order. The following is the form of 
 request where there is no order for payment, transfer or 
 deposit : — 
 
 Chancery. 
 
 To the Paymaster -General. 
 A direction is requested to enable John Smith to pay into court 
 [or transfer into court, or deposit in court] the sum of one thousand 
 pounds [or the sum of one thousand poimds Three per Cent. Consoli- 
 dated Annuities, or the following securities, that is to say, — stating 
 thcDi] to the credit of an action of Jo)ies v. Smith, 1881. J. No. oOO, 
 pursuant to Kule 25 of the Chancery Funds Consolidation Rules, 1874, 
 such money [or annuities or securities] not having been directed to be 
 paid into [or transferred into or deposited in] court by an order, and 
 not being money or securities to be paid into [or transferred into or 
 deposited in] coui-t in pvu-suancc of any act of parliament, or general 
 order by which some particular authority is required to enable the 
 paj-ment to be made. 
 
 Dated this oth day of May, 1881. 
 
 James RoDrxsox, 
 
 28, Xew Inn, 
 
 Strand, W.C, 
 Solicitor for the said John Smith. 
 
 This request must be sealed b}' a master of the Su- 
 preme Court, to show that the reference to the action 
 and record is correct (»/), and notice must be forthwith 
 given to the solicitors of the other parties {n). 
 
 (I) lb. (//) Ch. F., Amended Orders, 
 
 (w) lb. r. 2G. r. 4.
 
 184 I'ROCEEDINGS IN THE CHANCERY PAY OFFICE. 
 
 Urgent Cases. Where it is desirable to pay money 
 before a direction can be obtained, it may be lodged at 
 the bank to the Chancery suspense account upon a re- 
 quest to the bank to receive the same, very similar in 
 form (with necessary variations) to the above form of 
 request to the paymaster-general (/?) ; but a direction 
 from the latter in the usual way should be at once 
 sought, and the money carried over to the Chancery Pay 
 Office account. 
 
 Tardy Payment. A person ordered to pay money 
 into court by a day certain is not precluded from paying 
 it in afterwards ; and he may pay in any interest 
 which may have become due by reason of his default, 
 upon a request to the paymaster-general, as money paid 
 in without an order ; but any payment in after the date 
 specified, does not relieve the party from paying any 
 liabilit}' which he may have incurred through disobeying 
 the order {q) . 
 
 Ascertaining Dividends. Where dividends or 
 interest are ordered to be paid into court, and the amount 
 cannot be ascertained at the date of the order, it may be 
 ascertained by affidavit or statutory declaration, income 
 tax being deducted unless ordered to the contrary (r). 
 
 Securities. It must be remembered that the only 
 securities which can be transferred into court are securi- 
 ties of the United Kingdcto, or of any colony, or of 
 any foreign state, or of any corporation or company 
 in the United KiDgdom, or stock standing in books kept 
 by any corporation, company or person, in the United 
 Kingdom (s) ; all others must be deposited in a box. 
 
 (;;) Ch. F. r. 31. (r) lb. it. 8, 10, 8G. 
 
 (rj) lb. r. -27. (s) C. F. Act, ss. 3, 6.
 
 rROCEEDIXGS IN TIIK CIIANC KRY PAY OFFICK. 185 
 
 Investment of Money paid into Court since 
 the 7th January, 1873. Monej^ exceeding 10/. 
 pcaid into court, is forthwith placed on deposit, and bears 
 interest at 2 per cent, per annum (f), computed half- 
 monthly on every complete pound (»), except in the 
 case of money arising from the realization of securities 
 in court, or from dividends of securities in court, or 
 money brought over from the credit of some other action 
 or matter, with regard to all of which a request signed 
 by the party or his solicitor desiring the money to be 
 placed on deposit is necessary (r). 
 
 Where, however, money is directed to be otherwise 
 dealt with, it will not be placed on deposit {>/') ; nor will 
 money paid in to the appeal deposit account (.r) ; nor 
 where the party claiming to be entitled to or interested 
 in the money leaves a request at the Chancery Pay 
 Office signed by his solicitor that the money be not 
 placed on deposit ; but this request may be at any time 
 withdrawn, and a request to the contrary substituted {>/). 
 Money in court may also be invested, by order, in Con- 
 sols, Eeduced 3 per Cents., New 3 per Cents., 15ank 
 Stock, East India Stock, Exchequer Bills, 2i per Cent. 
 Annuities, or freehold or copyhold mortgages in Eng- 
 land or Wales (s) . 
 
 Where investment of a fund is desired, and is not 
 directed by the original order, a summons served on all 
 parties interested should be taken out, asking for the 
 necessary order. 
 
 (0 C. F. Act, s. 14, and C. F. ('•) C. F. r. G8. 
 
 r. 73. (/<•) lb. r. «^^ 
 
 {u) C. F. TV. 76, 77. See this {r) lb. r. 72. 
 
 latter rule as to commencement (y) lb. it. G7, GO. 
 
 of interest in sums exceeding' (-) Gen. Ord., 1st Feb. 18G1, 
 
 oOOi'. r. 1 ; C. F. it. 36, Go, 66.
 
 186 TROCEEDINGS IN THE CHANCERY PAY OFFICE, 
 
 The metliod of procuring the investment, is by taking 
 the order, together with a request, to the Chancery Pay 
 Office for a direction, which will be in due course issued, 
 ordering the bank to pay the money out to the Chancery 
 broker (b), conditionally upon his causing the securities 
 to be transferred or deposited to the account of the pay- 
 master-general (c) . The bank, corporation, or company, 
 in whose books, or with whom the transfer or deposit of 
 the securities is made or deposited, then issue their cer- 
 tificate of transfer, or deposit, as in the ordinary case 
 of transfers into or deposits in court of securities (r/). 
 Money invested on deposit must, however, be withdrawn 
 from deposit before applying for a direction for its in- 
 vestment {e). 
 
 Dividends. The order for investment should state 
 what is to be done with the dividends, and if (as is proper 
 where they amount to -10/, half-yearly) they are to be 
 invested and accumulated ; the order is left at the pay 
 office, with a direction to carry it into effect (/'). Where, 
 however, the dividends do not amount to 40/. half- 
 yearly, they will not be invested, even although the 
 order directs their investment {g) . 
 
 Payment or Transfer or Delivery out of 
 Court. Payment of money, or transfer or delivery of 
 securities out of court, can only be made in pursuance 
 of an order (//), which, if interlocutor}^, can only be ob- 
 tained on petition, or (where the fund in court is under 
 300/. on summons), intituled in the action to the credit 
 of which the money is standing, but not in any separate 
 
 (b) Re rndertaking of Went (t) lb. r. 94. 
 
 Ridbifj Raihcays Bill, W. N. (/) lb. r. Gl. 
 
 1876, pp. 48, 80. Ig) lb. r. G4. 
 
 {c) C. r. r. 60. (//) C. r. Act, s. 10; aud C. K 
 
 {rl) lb. r. :;0.
 
 PROCEEDINGS IN THE CHANCERY PAY OFFKK, l-S? 
 
 account in the action, and of course marked with the 
 reference to the record (/). 
 
 The order for payment out is taken to the Chancery 
 Pay Office, and in due com'se a cheque for the money 
 will be issued ; but before money on deposit will be 
 paid out, it is necessary for the party entitled to leave 
 a request, asking that it may be withdrawn from de- 
 posit {j). The paymaster-general may also demand a 
 request for payment of the money out, in addition to 
 the order (/•) ; but this right is never enforced. 
 
 Where secuiities are to be sold or transferred, or 
 delivered out of court, it is necessary to get the certifi- 
 cate from a registrar of the exact amount of money to 
 be raised by the sale, or the exact amount and descrip- 
 tion of the securities to be sold, transferred or delivered 
 out. On applying for this certificate the original order 
 must be produced to the registrar, or, if it cannot be pro- 
 duced, a satisfactory reason for its non-production must 
 be given, and an office copy must be produced (/) ; and 
 where securities are to be transferred, the solicitor must 
 append a memorandum to the certificate, stating the 
 name, address and description of the transferee. 
 
 In case of the death of a payee after the order, 
 and before payment, transfer or delivery, the jjayment, 
 transfer or delivery will be made to the person entitled, 
 on proper proof of his title {tn) . And in the case of a 
 woman marrying after the order, but before payment, 
 transfer or delivery, it will be made to her and her hus- 
 
 (i) C. F. r. 7 ; C. F., Amended (/) C. F. Act, s. 10 ; C. F. 
 
 Order 17. r. 42. 
 
 U) C. F. r. 75. (»») C. F. it. 53, 54; but seo 
 
 {k) lb. r. o~. r. 56 as to money unpaid for si-x 
 
 years after the order.
 
 188 PROCEEDINGS IN THE CHANCERY PAY OFFICE. 
 
 band, where the amount or value does not exceed 200/., 
 on proof of the marriage and production of an affidavit 
 of the woman and her husband stating that no settle- 
 ment or agreement for one has been made, or, if one 
 has been made, identifying it, and, also, in the latter 
 case, on production of an affidavit of their solicitor, 
 stating that such settlement or agreement does not affect 
 the fimd or securities (;?). In other cases, it would 
 seem necessary to have the married woman examined. 
 Where, however, a fund is standing to the credit of a 
 married woman, and does not exceed 500/., it will as a 
 general rule be ordered to be paid to her on her separate 
 receipt without examination (o). 
 
 Payment to Third Party. Grenerally, no one 
 can receive tlie money except the party entitled ; but 
 where there are several parties, each of whom is entitled 
 to less than 10/., it will be ordered to be paid to the 
 solicitor having the conduct of the action, or to one of 
 the parties, on his undertaking to distribute it. Even 
 in that case, however, it is very usual, except in the case 
 of creditors, to require a Avritten authority of such 
 persons. 
 
 Payment out of Dividends. The practice is 
 similar to that relating to the payment out of money, 
 and where dividends have accrued on securities after the 
 order for their transfer or delivery out of court, such 
 dividends will be paid to the person to whom the securi- 
 ties arc to be transferred or delivered (/;). 
 
 Certificates of Paymaster-General. The pay- 
 master-general may, in Jiis discretion, upon the written 
 request made by or on behalf of a person claiming to 
 
 («) C. F. r. .52. (/.) C. F. it. 4G, 47, 48, 49. 
 
 (o) Danieir.s Forms, 108.).
 
 PROCEEDINGS IX THE CHANCERY PAY OFFICE. 180 
 
 be interested in money or securities standing in tlio 
 books of the Chancery Pay Office, to the credit of an 
 action or matter, issue (1) a certificate for the infomia- 
 tion of a judge or other officer of the court of the amount 
 and description of such money or securities, and notify- 
 ing the dates of any restraining and charging orders 
 affecting the same, and the names of the persons in 
 whose favom" such orders have been made {q) ; (2) a 
 certificate of all purchases, sales, transfers, deliveries or 
 carryings over of, or other dealings with, such moneys 
 or securities (r) ; (-'5) a transcript of the account in his 
 books in reference to the cause or matter, and, if so re- 
 quired by the party to whom it is issued, sucli transcript 
 must be authenticated at the Chancery Audit Office. 
 
 The paymaster may also, in liis discretion, on a 
 similar request, supply such information with respect to 
 any transactions in the office as may be requu-ed in any 
 particular case {s). 
 
 Such, then, is an account of the practice in the vast mass 
 of cases in the Chancery Pay Office. It would be im- 
 possible in a small work like this to go into exceptional 
 cases, and the reader is referred for information upon 
 any such cases to Morgan and Chute's Chancery Acts 
 and Orders, and the notes to Daniell's Chancery Porms. 
 
 Dormant Causes. The London Gazette of June 
 28th, 1881, gives a list, extending over forty pages, "of 
 the titles of causes, matters and accounts in the books at 
 the Chancery Pay Office, to the credit of which funds were 
 standing on the 1st of September, 1880, wliicli had not 
 been dealt with dm-ing the fifteen years innuediately 
 preceding that date, prepared pursuant to Rule 01 of 
 
 {q) lb. r. 87. ('•) lb. r. 89. (*) lb. r. 90.
 
 190 PROCEEDINGS IN THE CHANCERY PAY OFFICE. 
 
 the Chancery Funds Consolidated Rules, 1874. '" The 
 following notice applies to all inquiiies respecting the 
 causes in question : — '"Xo information is to be given by 
 the Chancery pa^inaster respecting the money or secu- 
 rities to the credit of any cause, matter or account in 
 this list imtil he has been furnished ■with a statement, 
 in \yriting, by a solicitor requiring such information, of 
 the name of the person on whose behalf he applies, and 
 that in such solicitor's opinion the applicant is bene- 
 ficially interested in such money or securities. Eyery 
 petition or summons affecting any money or securities 
 to the credit of a cause, matter or account inserted in 
 this list is to contain a statement that it has been so 
 inserted. In cases in which the money or securities 
 affected by such petition may amount to or exceed in 
 yalue 500^., a copy of such petition, and notice of all 
 proceedings in court or at chambers, unless the court 
 otherwise directs, are to be served on the official solicitor 
 of the court."
 
 ( 191 ) 
 
 Sub-division X. 
 
 Further Consideration. 
 
 As has been said before, many actions are not finally 
 disposed of by the judgment pronounced on the hearing, 
 that judgment being often a mere general declaration 
 that justice ought to be done between the parties, and a 
 direction that certain inquiries be made and accounts 
 taken in chambers, the making and taking of which are 
 necessary before the judge can form a conclusion as to 
 what his final judgment on the matters in dispute be- 
 tween the parties ought to be. For instance, suppose a 
 testator charges his residuary real and personal estate 
 with debts, and, subject to their payment, leaves the 
 real estate to A., and the personal estate to B., and then 
 directs that a certain mortgage debt charged on a specific 
 property, specifically devised to C, shall be paid out of 
 his personal estate, and C. claims to have (if necessary) 
 the realty and personalty marshalled, it would be neces- 
 sary before deciding the point of law whether or no he 
 was entitled to have them marshalled, to ascertain the 
 amount of the testator's debts, legacies and personal and 
 testamentary expenses, and the value of his personal 
 estate, so as to see whether the latter was not capable of 
 bearing all the testator's debts including the mortgage 
 debt. The judgment, therefore, on the hearing would 
 direct these matters to be ascertained in chambers, and 
 the residt being certified by the chief clerk's certificate, 
 the action is a^ain set down on " farther consideration,"
 
 19"J FURTHER COXSlDEKATlOy. 
 
 in order that the points of law arising on the facts, as 
 found bv the certificate, may be argued and decided. 
 
 It must not, however, be supposed that fm-ther con- 
 sideration always follows whenever there is a reference 
 to chambers, for sometimes the object of an action will 
 be completely attained by what is done in chambers, as, 
 for instance, in the case of a redemption suit by a mort- 
 gagor. In such a case the deci-ee directs an account of 
 what is due on the security for principal, interest and 
 costs, and of what the mortgagee has received (in ease 
 he has been in possession), and that on payment of the 
 balance by the mortgagor the mortgagee shall reconvey 
 to him. If these accounts be taken in chambers, and 
 the deed of reconveyance be there settled and executed 
 by the parties without fiu'ther compulsion, there is no 
 need to again apply to the court. In such a case, from 
 the nature of the suit the costs woiUd be disposed of 
 under the origiurJ judgment ; but in most cases of re- 
 ference to chambers the judgment says nothing about 
 the costs, and that question, therefore, at least, will 
 usually remain to be dealt with on further consideration, 
 even when the result of the inquiries and accounts leaves 
 no other point for argument. 
 
 Further Consideration in Chambers. Some- 
 times, where damages are directed to be ascertained in 
 chambers, and in other cases where the points which are 
 likely to aiise on the certificate ai-e simple (as in cre- 
 ditors' administration actions, and the like), fui'ther 
 consideration is " adjourned into chambers," so that the 
 action does not again come into court, and the further 
 consideration is brought on by summons. 
 
 Setting down. An action may be set down on 
 fui'ther consideration, by the phiinfi/f', or other parti/
 
 FURTHER CONSIDERATION. 19.'i 
 
 horing the conduct of the procccdinr/s, after eight, and 
 within fourteen, days after the filing of the chief clerk's 
 certificate. After that period, cnii/ part// may set it 
 down {a) . By consent, an action may be set down im- 
 mediately after the filing of the certificate. 
 
 The way of setting down an action on further con- 
 sideration is to take a written request of the solicitor of 
 the party setting it down, together with the judgment, 
 and an office copy of the chief clerk's certificate, to the 
 registrar's clerk at the order of course seat, and he will 
 set the action down accordingly. 
 
 The action must not appear in the cause list until 
 ten days have elai^sed sinc e it was sf t down ; and notice 
 of the fact that it has been set down must be given to 
 all parties at least six days before^ the first day on 
 which it can possibly appear in the list {a). Where per- 
 sons who are not parties have been served with notice 
 of the judgment, but have not applied for leave to 
 attend the proceedings, they must be served with notice 
 of the further consideration if it is sought to make 
 them personally liable {h). 
 
 Where the further consideration is to be had in 
 chambers, the times for taking out and serving and 
 hearing the summons are the same as those above spe- 
 cified in relation to setting down, giving notice, and 
 hearing in court ; and the summons may be adjourned 
 into court for hearing, where important, in the usual 
 way. 
 
 Setting down as a Short Action. An action 
 may be marked '• short " on further consideration in the 
 usual certificate of counsel where the minutes are agreed 
 on, or the points involved are easy and not susceptible 
 
 (ff) Cons. Ord. XXI. r. 10. {/>) Pu- Rees, L. R., ]•") Ch. D. 490. 
 
 u. o
 
 194 FURTHER CONSIDERATION. 
 
 of being argued at great length ; and in that case it 
 will be set down on the short action day next after the 
 expiration of the ten days from the date when it is set 
 down (c). Of course, notice of the action having been 
 so marked must be given. 
 
 Leaving Papers. At least one char day before 
 the hearing on further consideration, the solicitor for 
 the party setting down the action must leave with the 
 usher of the com't, for the use of the judge, " the 
 papers," i.e. copies of (1) the original judgment, (2) the 
 certificate of the chief clerk, (3) any intermediate orders 
 or certificates, and (4) where minutes have been pre- 
 pared, two copies thereof. 
 
 Briefs and Evidence. The briefs will consist of 
 the old briefs used at the original hearing, together 
 with copies of the original judgment, the chief clerk's 
 certificate, and the minutes (if any), together with 
 any other matter which the solicitor may consider it 
 desirable for counsel to know ; and, where any new 
 affidavits have been filed, copies of them. With regard 
 to these however, it is a rule that the court will not 
 allow facts to be brought before it on further considera- 
 tion for the purpose of obtaining a judgment not war- 
 ranted by the original judgment ; although any facts 
 which have occuiTcd since the original judgment alter- 
 ing the situations of the parties, or affecting their rights, 
 and which are not directly in issue, may be proved by 
 fresh evidence {d ) . 
 
 Hearing. The case will be called on in due time 
 in its turn, and will be argued, and the judgment on 
 further consideration pronounced, drawn up, and passed 
 
 (e) Eegs. R. loth Mar. 18C0, (cl) Darnell's Ch. Pr. 1229; and 
 
 r. 10. 13 & 14 Vict. c. 3;j, s. 28.
 
 FURTHER CONSIDERATION. 105 
 
 and entered, like an original judgment. Like it, too, 
 it may be either final, or may direct a further reference 
 to chambers, and on this reference further proceedings 
 are taken and a further certificate made and filed ; and 
 the action may, if necessary, be again set down on fur- 
 ther consideration. Most usually, however, the judg- 
 ment on further consideration finally disposes of the 
 action, including the question of costs. 
 
 Affidavit of Service. It must not be forgotten 
 that where parties entitled to attend on further con- 
 sideration fail to do so, the solicitor setting do^\'n tlio 
 action must, as in every other like case, produce to the 
 registrar an affidavit of service of the notice on such 
 parties before the rising of the court on the day of the 
 hearing ; and where a purchaser has been served, the 
 affidavit must state that the conveyance has been de- 
 livered to him. 
 
 Payment of Costs by Solicitors. Solicitors 
 should also bear in mind that if the hearing cannot be 
 conveniently proceeded with owing to the absence of 
 the solicitor for any party, or by reason of his having 
 neglected to deliver " the papers " to the usher, he may 
 be ordered personal/// to pay to any of the parties, such 
 costs as the court may award {e) . 
 
 (r) Cous. Ord. XXI. IT. 11, 12. 
 
 o2
 
 ( 196 
 
 Sub-division XI. 
 Interlocutory Applications. 
 
 Chaptee I. — Prelixixaey. 
 
 Chaptee II. — The Diffeeext Modes of making Ixteelocutoey 
 Applications. 
 Section 1. — Brj Motion. 
 2. — By Petition. 
 3. — By Summons. 
 
 Chaptee III. — The most usual Inteelocutoey Applications. 
 Section 1. — For an Injunction. 
 2. — For a Receiver. 
 3. — For a Ne exeat Regno. 
 4. — For an Account. 
 
 5. — For an Allowance pending Litigation. 
 6. — Consolidation of Actions. 
 7. — For the Transfer of an Action. 
 8. — For Rem.oval of Proceedings from District Registry. 
 9. — Special Cases. 
 10. — Miscellaneous Applications. 
 
 CHAPTEE I. 
 
 PRELIMIXARY. 
 
 In the foregoing pages, frequent reference has been 
 made to motions, petitions and summonses for the pur- 
 pose of obtaining incidental orders in the course of an 
 action ; for instance, to obtain temporary protection for 
 property until the hearing of the action, to amend 
 pleadings, to strike out irrelevant or impertinent matter 
 in pleadings, to set aside the writ of summons, to get
 
 rilELlMlNAUY. 107 
 
 guardians ad Iltcin appointed, to strike out interi'oga- 
 tories, to get a fm-ther and better answer to interroga- 
 tories, to refer issues of fact to an official or special 
 referee, and the like. Such applications are called 
 interlocutory applications, and are made either (1) by 
 way of motion, when no lengthened statement is re- 
 quired in addition to the pleadings to indicate the point 
 to be decided; (2) by way of petition, when it is neces- 
 sary to have a written statement of the grounds of the 
 application in addition to the pleadings ; and (3) by 
 way of summons, when the point is simple and capable 
 of being disposed of in the judge's chambers. Let us 
 first examine the different modes of making such appli- 
 cations, and then we shall be in a position to consider 
 certain of the more important interlocutory applications 
 which have not hitherto been noticed. 
 
 CIIArTER II. 
 
 THE DIFFERENT MODES OF MAKING INTERLOCUTORY 
 APPLICATIONS. 
 
 Section 1. 
 
 By Motion. 
 
 Although it is generally said that an application should 
 be made by motion when no written grounds of the 
 application are needed beyond the pleadings, such a rule 
 is not a safe guide, and as Mr. Hunter observes in his 
 " Concise View of a Suit in Equity," " in fact no general
 
 198 INTERLOCUTOllY APPLICATIONS. 
 
 rule exists on the point, and tlie practitioner must trust 
 to kis experience alone." In this work, therefore, in 
 speaking of any particular interlocutory application, I 
 have always specified whether it should be made by 
 motion, petition or summons. 
 
 Special, or of Course. Motions are either " spe- 
 cial," or " of course." The former are, par excellence, 
 called motions ; and in this Work, wherever a motion is 
 spoken of, it means a special motion unless otherwise 
 stated. Motions of course are now of rare occurrence, 
 petitions of course having almost entirely supplanted 
 them. 
 
 Motions of Course. It may be as well, however, 
 at once to say that there are certain cases in which a 
 party is entitled of right to a particular order, which he 
 therefore obtains " of course," that is , without any 
 judicial action or discretion being called into play, but 
 merely on satisfying the proper officer that the circum- 
 stances are such as to entitle him to it. A motion of 
 course then is made by giving counsel a brief, which is 
 endorsed with a statement of the order required. 
 
 This brief the counsel takes to the registrar in court, 
 who marks it with his initials, whereupon the order is 
 drawn up, passed and entered in the usual way, but 
 without notice being given to the other side to attend, 
 and copies are then served on the solicitors of the oppo- 
 site parties. 
 
 If the registrar refuses to mark the brief, the judge 
 should be moved, ex parte, to order him to do so, and if 
 an order of course has been improperly obtained, a 
 special motion on notice should be made in court to have 
 it discharged. Owing to the fact that counsel have to 
 be briefed in order to obtain an order on motion of
 
 MODES OF MAKING INTERLOCUTOUY APrLlCATIONS. lUU 
 
 course, it is now rarely used, petitions of course being <a 
 less expensive method of arriving at the same result. 
 
 Special Motions. Special motions are oral appli- 
 cations made to a judge in open court, and not founded 
 on any written application. They are either (1) ex parte, 
 i. e. without notice to the other side and without giving 
 the other parties any opportunity of opjiosing them, or 
 (2) upon two clear days' written notice (a) served on the 
 other parties, or (except in cases involving imprisonment) 
 their solicitors at the address for service, or where they 
 have not appeared, by filing the notice in the same way 
 as pleadings are served under like circumstances {b). 
 
 A shorter notice may, however, bo given by special 
 leave, which leave is obtained upon ex ;jrtr)fc motion 
 made by counsel, and in general made immediately on 
 the judge returning into court after the mid-day ad- 
 journment. Such an application is colloquially, and in 
 professional slang, called " a shot." 
 
 A notice of motion cannot be given without leave, 
 until the defendant has appeared, or the time limited 
 for appearance has expired (c) ; but leave may be ob- 
 tained, ex parte, to serve notice of motion along with 
 the writ of summons, or at any time after (d), and such 
 leave is granted in all cases which are prima facie urgent 
 without the necessity of producing any evidence of their 
 urgency. 
 
 Ex parte Motions. No precise rule can be laid down 
 as to when a motion can be made ex parte, and when only 
 upon notice ; but except where it is specifically said to 
 
 ((7) K. S. C, Ord. LIII. s. 4. Ch. D. 694. 
 
 {b) R.S.C.,0rd.XIX.r.6; and (c) K. S. C, Ord. LIII. r. 7. 
 
 Morion V. Miller, L. R., 3 Ch. D. [d) lb. r. 8. 
 
 ■')16 ; Parsons v. Harris, L. R., G
 
 200 INTERLOCUTORY APrLlCATIONS. 
 
 be ex jyarte, or is merely to obtain leave to give short 
 notice of motion, or is made to obtain an order calling 
 on the other side to show cause only, or to obtain an 
 order where delay caused by proceeding in the ordi- 
 nary way woidd or might cause irreparable or serious 
 mischief, the motion can only be made upon notice {e). 
 Ex x>arte motions may be made on any day on which the 
 court sits ; and in vacation may be made to the vacation 
 judge, either in coiu't or chambers or at his private 
 residence ; they are generally only granted (when the 
 order injuriously affects another's rights) for a few days 
 until proper notice can be given and the motion duly 
 heard, and upon such terms as the court may consider 
 just ; and any party affected may forthwith move to 
 set such an order aside (/). For instance, a person 
 claiming to be a bill of sale holder, takes possession of 
 property claimed by the plaintiff, and intends to sell it 
 by auction within two days. Here if the ordinary 
 notice of motion to restrain the sale were given, it would 
 be useless, because the sale would be over before the 
 motion could be heard. In such a case counsel would 
 go into court and directly he could catch the judge dis- 
 engaged, he would move for an injunction restraining 
 the bill of sale holder and the auctioneer, their servants, 
 agents and others from proceeding with the sale until 
 the next ordinary motion day, and for leave to serve 
 notice of motion along with the ■WT-it of summons for a 
 similar order to be made on that day, and to remain in 
 force up to the trial of the action. Such an ex parte 
 application as this, affecting another's alleged right, 
 would have to be supported by an affidavit duly filed. 
 
 {c) R. S. C, Ord. LIU. r. 3. {f) lb.
 
 MODES OF MAKING INTERLOCUTORY AI'I'LICATIONS. 201 
 
 Motion upon Notice. AVhen notice of motion has 
 to bo given, it must be by a formal document, served 
 two clear days, at least, before the day named for 
 moving {{/), unless leave to serve a shorter notice has 
 been obtained ex parte. The following is an example 
 of a notice of motion : — 
 
 18S1. No. . 
 In the High Court of Justice. 
 Chancery Division. 
 V.-C. Hall. 
 
 Between John Smith . . . Plaintiff, 
 and 
 Thoma.s Jones . . Defendant. 
 Take notice, that this Honorable Court will be moved before his 
 lordship the Vice-Chancellor Sir Charles Hall, on the '2nd day of July 
 
 next, and so soon thereafter as counsel can be heard, by Mr. of 
 
 counsel for the i^laintiff, that the defendant, his servants, agents and 
 
 workmen, and John Jones of auctioneer, may be restrained by 
 
 injunction from selling or attempting to sell the property, or any part 
 of the property comprised in the bill of sale in the statement of claim 
 mentioned, until the com-t shall make other order to the contrary. 
 Dated 29th June, 1881. 
 
 "William Sjiitii, 
 
 Plaintiff's solicitor. 
 
 No. lis, Darlington Street, 
 To Mr. Elliot, Wolverhampton. 
 
 Defendant's solicitor, and to the said John .Jones. 
 
 In drafting a notice of motion care should bo taken 
 to state the object of the motion clearly, as the court 
 cannot make any order, except that stated in the 
 notice, or diifering from it only in being less to the 
 advantage of the party moving (//). 
 
 It is not generally necessary to givo notice to all the 
 parties to an action, but, only such whose interests are 
 
 i'j) lb. r. 4. (//) Hunter'.s Suit, 135.
 
 202 INTERLOCUTORY APPLICATIONS. 
 
 affected by the particular application (?) ; but of course 
 if the court considers any party to be interested who has 
 not been served, the motion may be dismissed with costs, 
 or adjourned in order that such party may be served (/). 
 
 If a party is unnecessarily served, he should not 
 appear on the hearing of the motion, or he will not be 
 allowed his costs ; but if he has incurred expense in as- 
 certainiiDg whether or not his interest requires that he 
 should appear, then even though it turns out that his 
 appearance is unnecessary, yet it has been held that he 
 may appear for the purpose of recei\dng the repayment 
 of the expenses which he has so incurred {k) . 
 
 One day in each week called " seal day," or now more 
 commonly " motion day," is set apart for the hearing of 
 motions by each judge, and motions on notice are only 
 heard on such days (except by leave) ; but in vacation 
 when the court is not sitting, the motion may be made 
 to the vacation judge at his residence (if urgent), or in 
 court on the day when he sits in comi. 
 
 Evidence. The evidence adduced on the hearing 
 of a motion is not usually viva voce, but by affidavit (l) ; 
 and in this respect is unlike the evidence adduced at the 
 trial, which must be viva voce except by consent to the 
 contrary {m). The court or a judge may, however, on 
 the application of either party, order the attendance for 
 cross-examination, of the person making any such affi- 
 davit («), or order his cross-examination before an ex- 
 aminer, or special examiner, or other officer of the court. 
 
 (0 Hunter's Suit, 134. (/) R. S. C, Ord. XXXVII. 
 
 (J) R. S. C, Ord. LIII. r. 5. r. 2. 
 
 (k) Meneagc\. Aikin, 1 Jac. & (w) Ante, p. 112. 
 
 W. 377; sed qutere Morg. & Dav. {n) R. S. C, Ord. XXXVII. 
 
 Costs, 43. r. 2.
 
 >IOT)ES OF JIAKING INTERLOCUTORY AlM'KlfATlONS. 203 
 
 If time allows of it, this order may b(^ obtained on sum- 
 mons or ex parte motion, but it is a very usual practice 
 to ask at the hearing of the motion that it may be 
 adjourned until the next motion day, and that the 
 witness may then be in attendance to be cross-examined. 
 
 Affidavits to be used on interlocutory applications also 
 differ from those used at the trial in this respect, that a 
 deponent is allowed to speak, not only to his knowledge, 
 but also to his belief, giving, however, the groimds for 
 ii{o).^ 
 
 Briefs. The briefs to be delivered to counsel con- 
 sist of the writ of summons and pleadings (if any), a 
 copy of the evidence, and of the notice of motion, to- 
 gether with any remarks which the solicitor may think 
 desu-able. 
 
 Hearing. On motion day, there is no list of the 
 business to be transacted, like there is on the days 
 when actions are being tried, but on the judge coming 
 into court, he says to the senior counsel present, " Do 
 
 you move Mr. ?" If Mr. is instructed 
 
 to move in any case he proceeds to do so, reading his 
 notice of motion, stating the facts, and reading his 
 evidence, and arguing on the law applicable to his con- 
 tention. If there be two counsel engaged, the junior 
 follows his leader if he thinks proper to do so. 
 
 The counsel for the other party then oppose the mo- 
 tion, and finally the leading counsel for the party 
 moving, replies, and the judge delivers his decision, and 
 either makes the order asked for, with or without varia- 
 tions, or dismisses the motion, and either orders costs to 
 be paid by one party, or orders that the costs shall bo 
 
 (0) lb.
 
 204 INTERLOCUTORY ArrLICATlONS. 
 
 costs in the action, which leaves them to be dealt with 
 along with the general costs of the action at the trial, 
 or makes no order as to costs, in which case the unsuc- 
 cessful parties bear their own costs, and all others, 
 whether successful or passive, are entitled to their costs 
 as " costs in the action." 
 
 When the first motion is finished, the senior counsel 
 is again and again called on, until he has made two 
 opposed, and any number of unopposed motions, after 
 which the next senior has similar opportunities afforded 
 to him. "When all the Q.C.'s have been called on 
 thus, the junior bar are called on in a similar manner, 
 but a junior barrister can only make one motion at a 
 time, and not two or more consecutively like a senior 
 can. 
 
 When all the bar have been called on, the judge re- 
 commences with the senior, and so on until there are no 
 more motions to be made, or until it is time for the 
 court to rise for the day. If all the motions are not 
 disposed of, they stand over until the next motion day ; 
 but if a motion can be brought on, and is not brought 
 on, the party giving the notice will have to pay the 
 costs, and his motion Avill be taken to have been aban- 
 doned (/)) . To prevent this, the counsel of the party 
 giving the notice should " save his motion," by asking 
 that it may stand over until the next seal. 
 
 The Order. An order made on motion is di'awn 
 up, passed and entered, and enforced in the same way 
 as a judgment. 
 
 {])) Be Smith, 23 Bca. 281; Aii/ccn v. Lioikn; 25 W. K. 33G; Ydlcs 
 V. Miles, ib. 452.
 
 modes of making interlocutory applications. 205 
 
 Section 2. 
 
 PetitioHH. 
 
 "Where an interlocutory order is desired for the pay- 
 ment of money out of court, or where any other appli- 
 cation is to be made of such a nature that it cannot be 
 explained without a narrative in addition to the plead- 
 ings, a petition is the proper form of application. 
 
 Petitions of Course. Petitions, like motions, are 
 either special or of coui'se ; and it is more convenient 
 that we should at once dispose of petitions of course, 
 and then we can devote ourselves to the consideration 
 of special petitions. Petitions of course then, like mo- 
 tions of course, are used for the pui'pose of obtaining 
 orders to which a party is entitled of right, and without 
 any judicial action or discretion being brought into 
 play. Such petitions have been hitherto usually pre- 
 sented to the M. E., although the action may not be 
 attached to his branch of the court ; but as a bill is now 
 pending before parliament providing for his transfer to 
 the Court of Appeal, such petitions will, in future, be 
 assigned to any judge. Such a petition is in the fol- 
 lowing form : — 
 
 188 . No. 
 In the High Com-t of Justice. 
 Chancery Division. 
 Vice- Chancellor Hall. 
 
 Between John Sniith Plaintifif, 
 
 and 
 
 Thomas Jones Defendant. 
 
 To Her Majesty's High Court of Justice. 
 The humble petition of the above-named plaintiff 
 Sheweth as follows : 
 
 1 . In this action the writ was issued on the day of last, 
 and the statement of claim delivered on the day of last. 
 The defendant has not yet delivered his statement of defence. 
 
 2. Thomas Thomas, of 58, New Street, Haverfordwest, in the 
 county of Pembroke, is a material witness in this action for your
 
 206 IN^TERLOCUTORY APPLICATIONS. 
 
 petitioner ; -without whose testimony your petitioner cannot safely 
 
 proceed to a trial of this action. 
 
 3. Tlie said Thomas Thomas is about to proceed on the day 
 
 of next, to the colony of Natal, and your petitioner is desu'ous 
 
 to examine him dc bene esse. 
 
 Your petitioner therefore humbly prays that he may be at liberty 
 to examine the said Thomas Thomas as a -vritness on his 
 behalf in this action de bene esse, saving all just excep- 
 tions ; and that William Johnson, of Lincoln's Inn, barrister- 
 at-law, may be appointed an examiner to take such examina- 
 tion. And your petitioner will ever pray, &c. 
 
 The petition, when drawn and engrossed on paper, is 
 lodged with the Lord Chancellor's secretary of causes, 
 and need not be served on any one. Such a petition is 
 not heard, but the secretary merely draws up and 
 initials such an order as the party is entitled to, and 
 this order is entered in a book kept for that purpose at 
 the secretary's office, open during office hours to the 
 inspection of suitors and their solicitors. Every order 
 so entered and initialed, has the same force as an order of 
 the court, passed and entered by the registrar {q) . If 
 an order of course has been irregularly obtained on 
 petition, any party wishing to set it aside, should apply 
 to the judge to whose court the action is attached (r). 
 
 Special Petitions. Special petitions are usually 
 prepared by coimsel. As will be seen in the second 
 division of this work, petitions are presented in 
 " matters" as well as in " actions." A special petition 
 in an action is in the same foiTii as a petition of course, 
 setting out the facts on which the petitioner relies, and 
 praying for the order to which he considers himself 
 entitled, " or that such other order may be made in the 
 premises as to this honorable court shall seem meet." 
 In a special petition it is also necessary to state in a foot- 
 note whether, and upon whom, it is intended to be 
 
 {q) Cons. Ord. XXIII. r. 17. {>■) Hunter, 150.
 
 MODES OF MAKING INTERLOCUTORY APPLICATIONS. 207 
 
 served ; thus, "It is intended to serve this petition on 
 the above-named defendant," or "It is not intended 
 to serve this petition on any person." Petitions, like 
 pleadings, should be clear and unambiguous, and gene- 
 rally the principles above specified in relation to plead- 
 ings may be observed as guides in the preparation of 
 petitions. 
 
 The petition having been prepared, is engrossed on 
 brief paper, in words at length (except figures), and 
 folded like a brief, and endorsed with the record refer- 
 ence, com't, division and judge, and with the name of 
 the action, and marked " petition," " opposed" or " un- 
 opposed," as the case may be. It is then left with the 
 clerk of the secretary of the Lord Chancellor, who will 
 " answer" it, by writing a memorandum in the margin, 
 to the effect that " his Lordship doth order that all 
 parties concerned do attend him thereon on" the next 
 petition day, and that notice is to be given forthwith. 
 Petitions assigned to the Eolls Court have hitherto been 
 left with the secretary of the Master of the Rolls, but 
 if the latter is transferred to the Appeal Court, no peti- 
 tions will in future be assigned to him. The petition, 
 when answered, is returned to the petitioner's solicitor, 
 and will be set down for hearing by the secretary. At 
 the time of presenting the petition a fair copy on brief 
 paper is left for the use of the judge on the hearing. 
 
 Service. At the foot of every petition, the peti- 
 tioner must state the parties (if any) intended to be 
 served, and he must choose these parties at his own 
 risk, in the same way as parties are chosen on whom to 
 serve a notice of motion. Service is effected in the same 
 way as service of a pleadings, and consists in delivering 
 a copy of the petition with the memorandum of the 
 secretary copied on it, and showing the original peti-
 
 208 INTERLOCUTORY APPLICATIONS. 
 
 tion and memorandum, and must be effected two clear 
 days at least before the date fixed for the hearing (.s), 
 unless special leave is given to the contrary. 
 
 Where it is doubtful whether a petition should be 
 served on a party or not, the petitioner may serve him, 
 and at the same time offer him 40s. to enable him to 
 get legal advice, and if he afterwards appears on the 
 hearing, the court will consider whether his appearance 
 is justified, and will not give him his costs of appearing 
 unless he was justified in appearing (t). 
 
 Evidence. The evidence on a petition is the same 
 as on a motion, and where no oj^position as to facts is 
 anticipated, the affidavit is generally an echo of the 
 statements in the petition. 
 
 Briefs. The briefs consist of a copy of the petition 
 and evidence, and any observations of the solicitor which 
 he may consider desirable. 
 
 Hearing. One day in each week of the sittings is 
 set apart by each judge for the hearing of petitions. 
 A list of petitions to be heard by each judge is made 
 out by the secretary to whom they are presented, and 
 on the day named the petitions are called on in the 
 order in which they appear in this list, the imopposed 
 ones, however, being heard first. 
 
 Sometimes a petition presented as unopposed will 
 turn out to be opposed ; and in that case it stands over 
 until the unopposed ones have all been heard. 
 
 If when a petition is called on, the petitioner's counsel 
 are not in court, the registrar passes on to the next, but 
 when all the list is exhausted he goes through it a second 
 time, and if no one answers on this occasion the petition 
 is struck out. 
 
 (.s) Cons. Ord. XXXIV. r. 2. Eq. G97; If'uod v. Boucher, L. R., 
 
 {t) Lugyan'a Trusts, L. li., S C Cli. App. 77.
 
 MODES OF M.VKIXO INTERLOCUTORV APPLICATIONS. 209 
 
 Standing over. AVhero for any reason the peti- 
 tioner is not ready to have his petition heard, he should 
 (Avhen it is culled on) ask for it to stand over until a 
 future fixed day, or "generally :" in the latter case it 
 will, if unopposed, be set down again by the registrar 
 in attendance, for the next petition day, on the request 
 in writing of the petitioner's solicitor. In other cases 
 it will be set down again upon the like request, accom- 
 panied by evidence that the object for which it was 
 ordered to stand over, has been accomplished ; and ' 
 notice of its restoration to the list must then be given 
 to the respondents. 
 
 Leave to amend. It frequently becomes neces- 
 sary to amend petitions : it is usual to make the appli- 
 cation for such amendments at the hearing, but amend- 
 ments will be made even after the hearing. 
 
 Adjournment to Chambers. Sometimes in cases 
 where money has to be paid out of court, and the titles 
 of the different parties have to be investigated, and also in 
 cases of infant wards of court asking for leave to marry, 
 the petition is adjourned into chambers, and a sum- 
 mons to proceed is issued and worked out in the usual 
 way ; but a formal certificate may be dispensed with, 
 and the order made in chambers, and a memorandimi is 
 then sent to the registrar to enable him to draw it up. 
 It may, however, be ordered to be again brought on in 
 court, and in that case the chief clerk annexes to the 
 judge's copy petition, a minute of the result of the chief 
 clerk's investigation, and a note of the evidence for the 
 use of the registrar in drawing up the order {u). 
 
 Filing. Petitions on which any order is founded 
 
 («) Scton, 4th ed. .",4 ; Haynes, 480. 
 U. P
 
 210 INTERLOCUTORY APPLICATIONS. 
 
 must be filed at the central office, and an office copy- 
 transmitted to the District Eegistry ; and until this is 
 done the order cannot be passed {v). 
 
 Section 3. 
 Summonses. 
 
 We have already considered the manner in which the 
 chief clerks make the enquiries and take the accounts 
 directed by an order, and the result of which are incor- 
 porated in a certificate. But besides this ministerial 
 business under judgments and orders, the chief clerks 
 have certain judicial duties to perform, of the same 
 nature as those performed by the judge in court ; and 
 like the judge's duties, these judicial duties of the chief 
 clerks may arise either in actions or matters, and in the 
 latter case (as will be seen in the second division of this 
 work) such matters are sometimes originated in cham- 
 bers and never come into court at all. 
 
 In this place, however, we are only concerned with 
 such interlocutory applications in actions as are capable 
 of being made in the judge's chambers, a method of 
 proceeding which, from its superior economy, ought 
 always to be pursued when possible, unless the object 
 of the application is of such importance as to be liotly 
 contested ; in which case, as the summons in chambers 
 would probably be adjourned into court for formal 
 argument, it would be cheaper to commence the appli- 
 cation by motion in the first instance. 
 
 Every application in chambers is made by a proceed- 
 ing called a summons {x), which is in form a requisition 
 by the judge, requiring all parties concerned to attend 
 
 (0 Cons. Ords. I. r. 44, aud Old. XXXV. r. 2. 
 XXXIII. r. 23: and R. S. C, (.') R. S. C, Ord. LIV. r. 1.
 
 MODES OF MAKING INTEKLOCUTORY APPLICATIONS. 211 
 
 at his chambers at a certain day and hour, when the 
 application will be heard. With the exception of the 
 matter to be heard, every such summons is similar in 
 form to the summons to proceed under a judgment, an 
 example of which has been given on page 1G2, and it is 
 taken out and served (where service is necessary) in the 
 same way. A summons, lilce a motion, may be either 
 ex 2)arte or on notice, and in the next chapter some of 
 the more usual aijplications by summons (both e,v parte 
 and on notice) will be specified. 
 
 Counsel are not usually heard by the chief clerks 
 (although Y.-C. Bacon's and Y.-C. Hall's chief clerks 
 will hear counsel). Solicitors and suitors iu person 
 usually appear before them ; but if a case is of import- 
 ance, either party can of right have it adjourned before 
 the judge himself, and in that case counsel will be heard 
 in his chambers (except in Y.-C. Bacon's) ; and if there 
 is any difficult point involved, it will be adjourned, 
 either by the chief clerk or by the judge himself, into 
 court for argument, and will then be placed in the list 
 on the next adjourned summons day. 
 
 Service. A summons on notice must be served on 
 all necessary parties two clear days at least before the 
 day fixed for its return (//) ; and where this is found to 
 be impracticable, an application should be made at the 
 judge's chambers to extend the time for the return of 
 the summons, and to make a new appointment. If the 
 summons has not been served on anyone, this will be 
 done, simply by altering the date named in the sum- 
 mons and re-sealing it. But if any party has been 
 served, a memorandum will be made on the summons 
 adjom-ning it (as to the parties not served) imtil a 
 future date. At the original date the hearing will be 
 
 {ij) Cons. Orel. XXXV. r. 7. 
 
 p2
 
 212 TNTEULOCUTOTIY ArPLICATIOXS. 
 
 adjourned as to the parties already served for that date, 
 until the date named in the memorandum (s). 
 
 Affidavit of Service. It must be remembered 
 that where a party served does not appear, the usual 
 affidavit of service must be produced to the chief clerk 
 on the day of the hearing. 
 
 The Order. Orders in chambers, when of a simple 
 natm-e, are drawn up by the chief clerks ; but the judge 
 may direct any order to be drawn up by the registrar, 
 like an order made in court ; and in that case a minute 
 of the order is endorsed by the chief clerk on the 
 summons, and signed and transmitted by him to the 
 registrar attending in court on that day, by whom the 
 order is drawn up, passed and entered, in the same \s^ay 
 as an order made in court {a) . Orders drawn up by the 
 chief clerks must also be entered in the same manner, 
 and in the same office, as orders made in open court (i). 
 
 Orders made in chambers have the same force and 
 effect as orders made in court, and may be enforced in 
 the same way (c). 
 
 Setting aside and varying Orders made in 
 Chambers. Any order made by a judge in chambers 
 may be set aside or varied by him on motion in court 
 (of which notice must be given to the other side), made 
 within twenty-one days of the order, unless the judge 
 enlarges the time [d] ; and no appeal to the Court of 
 Appeal will be heard unless such re-hearing has been 
 had or refused, or unless the judge gives a certificate 
 that he has heard the case in chambers and does not 
 wish to have it further argued before him in court (e). 
 
 (;) Darnell's Ch. Pr. 1025. (d) Jud. Act, 1873, s. 50 ; and 
 
 {a) lb. lOGC. LichsoH v. Harrison, 26 W. R. 
 
 (i) Cons. Ord. XXXV. r. 32. 730. 
 
 (c) 15 & IG Vict. e. 80, s. 15 ; {v) lb. ; and Thomas v. Ehom, 
 
 K. S. C, Ord. XLII. r. 20. L. E., G Ch. D. 346.
 
 MODES OF MAKING INTERLOCUTORY AriM>lCATIONS. 2V'^ 
 
 District Registrars. Where an action proceeds 
 in a district registry, the registrar has power to exercise 
 all the autliority and jurisdiction of a judge in chambers 
 on summons, and may refer any matter to the judge 
 for his decision or direction. There is, however, this 
 distinction, that an appeal from a registrar is not effected 
 by adjournment of the summons to tlie judge himself, 
 but by a new summons taken out in the judge's cham- 
 bers within four days after the decision complained 
 o|j(,/") ; such an appeal is no stay of proceedings unless 
 so ordered by the registrar or judge {(/). 
 
 CHAPTEE III. 
 
 SOME OF THE PBINCIPAL INTERLOCUTORY APPLICATIONS. 
 
 In a small work like this, it would be impossible to 
 describe every kind of interlocutory application. In 
 cases of doubt or difficulty the reader is referred to 
 Daniell's Chancery Practice, in the second volume of 
 which lists are given of all kinds of interlocutory appli- 
 cations, specifying whether they should be by motion, 
 petition or summons. No attempt is here made to do 
 more than mention a few of the ordinary and most 
 important kinds of interlocutory applications. 
 
 Section 1. 
 
 Interlocutor// Injunctions. 
 
 An injunction was formerly described to be a writ 
 issuing out of Chancery, in the nature of a prohibition ; 
 (/) R. S. C, Ord. XXXV. rr. 4, 7. (y) lb. r. 8.
 
 214 INTERLOCUTORY APPLICATIONS. 
 
 that is to say, a -^Tit which had the same operation as a 
 prohibition issued ont of a court of common law. 
 Writs of injunction are now, however, abolished, and 
 an injunction is merely an order or judgment ; and 
 such order or judgment of itself has exactly the same 
 effect as a writ of injunction formerly had, without the 
 necessity of going to the trouble and expense of suing 
 the writ out (h). 
 
 As has more than once been pointed out, this work 
 only relates to procedure, and, therefore, the practi- 
 tioner is referred to works treating of the substantive 
 law and rules of equity for information as to when, 
 and under what cu-cumstances, an injunction will be 
 granted. 
 
 Injunction should be claimed by the Writ 
 of Summons. It is a general rule that no injunction 
 will be granted unless it be asked for in the writ and 
 claim ; and, consequently, wherever there is a fear that 
 a defendant mcnj do an act which it is desirable that he 
 should be prevented from doing, it is usual to claim an 
 injunction ex ahundanti cauteld, although it may not be 
 necessary to move for one. 
 
 Mode of Application. Assuming that an inter- 
 locutory injunction is considered desirable in any case, 
 the proper mode of applying for it is byjnotion_on^_ 
 notice. If, however, the need is urgent, an interim 
 injunction will be granted on ex parte motion, founded 
 on an affidavit. Such an injunction is usually only 
 granted until the next motion day after due notice of 
 motion can be given. 
 
 Undertaking in Damages. It may here be at 
 once mentioned that an interlocutory injunction when 
 (/() R. S. C, Ord. LII. r. 8.
 
 THE PRINCIPAL INTER LOCUTOUY APPLICATIONS. 215 
 
 granted, is almost always granted only upon the terms 
 of the plaintiff undertaking to pay all damages which 
 the defendant may suffer in consequence of the injunc- 
 tion, if it shall turn out, on the hearing of the action, 
 that the interlocutory injimction has been improperly 
 granted. Occasionally this rule is not enforced where 
 the right to the injunction is clear and imdoubted; but 
 in the vast majority of cases it is otherwise. 
 
 Notice of Injunction. As soon as an inter- 
 locutory injunction has been granted, notice should be 
 served on all parties affected by it that the order has 
 been made ; and if any person disobeys the order after 
 notice of it, he will be liable to be committed or at- 
 tached for contempt (/). The order is finally drawn up 
 and passed and entered in the usual way, and disobe- 
 dience to it is enforced in the same way as disobedience 
 to any other order or judgment. 
 
 Dissolving an Injunction. An interlocutory 
 injunction may be always dissolved on motion made for 
 that purpose, of which notice should, of course, be given. 
 If the need for dissolving the injunction is urgent, an 
 ex j)arte motion (or "shot") should be made, for leave to 
 serve short notice of motion. Of course such cases are 
 fought tooth and nail, and strong evidence is required 
 to dissolve an injunction granted on a contested motion. 
 
 It must not be forgotten that an interlocutory order 
 remains in force only until the hearing ; and, therefore, 
 if an injunction is to be perpetual, it shoidd be expressly 
 " continued " by the judgment. 
 
 (t) Soc Ex parte Zaiif/lc)/, Jj. R., that a telegram was a sufficient 
 13 Ch. D. 110, -where it was held notice.
 
 216 INTERLOCUTORY APrLICATlOKS. 
 
 Section 2. 
 Receivers. 
 
 As in tlie case of an injunction, it is no part of this 
 work to enter into the consideration of the circumstances 
 which will authorize the appointment of a receiver. It 
 is assumed in speaking of the procedure, that circum- 
 stances exist which render the appointment desirable. 
 
 Mode of applying. The mode of applying for a 
 receiver is, in all important cases, by motion ; but where 
 the subject-matter is small, it would seem that a re- 
 ceiver will now be appointed on summons in cham- 
 bers ill). 
 
 As in the case of an injunction, if the appointment of 
 a receiver is a substantial part of the action, a receiver 
 should be asked for in the writ and statement of 
 claim {!). 
 
 Inquiry as to Fitness. The appointment of a 
 specified person as receiver is not usually made by the 
 court on the hearing of the motion, although it some- 
 times is ; and when one of the parties will undertake to 
 be responsible for the person proposed, he will some- 
 times be appointed interim receiver, i. e. until a receiver 
 is appointed in the ordinary way. The ordinary order 
 is, that a " proper person be appointed receiver,"' in 
 which ease the chief clerk inquires at chambers (on a 
 summons to proceed in the ordinary way) as to the fit- 
 ness of any person proposed to him, and of persons or 
 societies who must be proposed as sureties for such re- 
 ceiver (w) ; and, if ho is satisfied, a recognizance of the 
 
 (A) Mttcaulei/ v. Pocock, L. T., (/) R. 8. C, Old. II. r. 1 ; 
 
 8th Dec. 1877, p. 100; R. S. C, Ord. III. rr. 1, 3; Cokhotmiew 
 Ord. LII. r. 4. Colebourne, L. R., 1 Ch. D. 690. 
 
 [m) Cons. Ord. XXIV. r. I.
 
 THE rniNini'Ai, intkki.ocutoky Arrj-icvnoNs. 217 
 
 receiver and two siu*etics to the two senior Chancery 
 judges is taken by way of security. It is only under 
 most exceptional circumstances that sureties will be dis- 
 pensed with {n), and each surety must make an affidavit 
 that he is worth the amount for which he binds himself, 
 after payment of all his debts. The recognizance and 
 affidavit having been left at the judge's chambers and 
 approved, a further summons to appoint the party ap- 
 proved as receiver is necessary. 
 
 Even where a specified party is appointed receiver in 
 the order made on the motion in court, his appointment 
 is almost invariably made conditional upon his " bring- 
 ing in his security ; " and in such a case he "will not be 
 a receiver in fact, until his security is given (o) : but of 
 course in such a case the appointment is complete on the 
 security being given, and no final summons to appoint 
 him is necessary. 
 
 Appointment of a Party to the Action. Where 
 a party to the action wishes to proj^ose himself as receiver, 
 he must obtain leave to do so, which is usually applied 
 for on the hearing of the application for the appoint- 
 ment of a receiver. In such cases he is usually ap- 
 pointed icithout salary ; and sometimes, if largely inte- 
 rested, without giving security. A stranger appointed 
 receiver is usually paid 5 per cent, of the gross receipts ; 
 but this is reduced where the estate is large, or may be 
 augmented under exceptional circumstances {p). 
 
 Refusal to pay or hand over Property to a 
 
 Receiver. Where persons in possession of property, 
 ordered to be paid or delivered to a receiver, refuse to 
 
 («) See Darnell's Ch. Pr. 1584. {p) See Polls v. Leif/hlon, 15 
 
 (o) Edwards V. Edwards, L. R., Vcs. 276 ; Re Ormshtj, 1 Ba. & B. 
 2 Ch. D. 291. 189.
 
 218 INTERLOCUTORY APPLICATIONS. 
 
 pay or deliver over tiie same, the order should be per- 
 sonally served upon them; and if they still refuse, an 
 ex j)(i)'te motion should be made to the court (founded 
 on an affidavit of service of the order and non-compli- 
 ance), for an appropriate writ of execution. Any 
 attempt to disturb a receiver is a contempt of court, and 
 will be punished accordingly. 
 
 Powers. The consideration of the powers of a re- 
 ceiver belongs rather to a work on Equity jurisprudence 
 than to one treating only of procedure, but it may 
 generally be stated that they are very limited, and that 
 he should, when in any doubt as to what course he ought 
 to take, request the party who has the conduct of the 
 action to apply by summons for directions, and if such 
 party neglects to apply, he may do so himself {q). 
 
 A receiver may, however, without leave, let lands 
 from year to year, or for a term not exceeding three 
 years, or may put an end to such tenancies, but may 
 not eject on his ovm. responsibility (r) ; nor should he 
 pledge the estate to any expense, nor entrust money 
 belonging to the estate to improper persons. 
 
 Accounts. The order appointing the receiver, ap- 
 points the days on which he must pass his accounts (s), 
 and such accounts must be made out in a form which 
 can be obtained at the law stationers. 
 
 On the day named, the receiver leaves the account at 
 the chambers, and (on the first occasion only) also a 
 copy of the order appointing him receiver, certified to 
 be a true copy by his solicitor. At the same time he 
 takes out a summons to proceed on his accounts, which 
 
 {q) Ireland \. Eadc, 7 Bea. 55 ; (r) Daniell's Ch. Pr. 1597. 
 
 Farkei- v. Bunn, 8 Bea. 497. (*) Cons. Ord. XXIV. r. 2.
 
 THE PRINCIPAL INTERLOCUTORY API'LICATIONS. 210 
 
 is served in the usual ■way{f). The account is then 
 gone thi'ough in the same manner as other accounts. 
 
 If a receiver does not leave his account at the ap- 
 pointed dates, any party concerned may take out a 
 summons calling upon him to do so, and if he disobeys 
 the order made on such summons, he may be committed 
 for contempt in the usual way. If a receiver does not 
 pay in balances found to be due from him on his ac- 
 count, a similar course should be pursued ; but in that 
 case a certificate of the paymaster-general will be neces- 
 sary that the payment has not been made {u). The 
 receiver will in such cases also be charged with o per 
 cent, interest, and he may be requu-ed to attend at 
 chambers, to show cause why he has not passed his 
 accounts or paid his balances, and directions may be 
 given proper to ensure the prosecution thereof by some 
 interested party for the discharge of the receiver and 
 the appointment of another, and payment of costs by 
 the receiver. Or a certificate by the chief clerk of the 
 receiver's default or neglect, or of any abandonment of 
 the proceedings, may be filed ; and after such certificate, 
 unless discharged, none of the parties are to be at 
 liberty to further prosecute proceedings in chambers 
 Avithout order ; but on the certificate becoming binding, 
 any party may apply to the court, and the court may 
 make such order as may seem proper. And for that 
 purpose the official solicitor may be directed to summon 
 the person whose attendance is required, and to conduct 
 any proceedings, and carry out any directions, his costs 
 being paid, as the judge may direct (.r). 
 
 Discharge. When all the receiver's duties are 
 
 {i) lb. r. 3. ct seq. 
 
 («) See DanioU's Ch. Tr. 1G02 (x) Con.s. Ord. XXXV. r. 23.
 
 220 INTERl.OCUTORY APPLICATIONS. 
 
 effected, he will be discharged, and his recognizances 
 vacated, on an affidavit of the balance having been paid 
 to the proper parties, or a certificate of the paymaster- 
 general, as the case may be. Such discharge is granted 
 on further consideration, or by motion, petition, or sum- 
 mons. A receiver (like a trustee) will not without 
 good cause be discharged before all his duties are 
 effected, without paying all the costs occasioned by the 
 change (//). 
 
 Section 3. 
 Ne exeat Regno, 
 
 A ne exeat regno is a writ addressed to the sheriff of 
 the county in which a defendant is resident, command- 
 ing him to take bail from the defendant not to quit 
 England without leave of the court (;:), 
 
 It used to be a rule that this writ would only issue 
 where the plaintiff had a claim enforceable in a court 
 of equity, and since the passing of the Judicatiu'e Acts 
 the rule is only so far modified that the wiit will also 
 be issued where the case can be brought within sect. 6 
 of the Debtors Act, 1869 [a). However, it is outside 
 the province of this work to discuss the substantive law 
 relating to the issue of the writ. 
 
 How applied for. The writ is applied for by ex 
 2)arte motion, which may be made (if advisable) before 
 the writ of sunmions is issued. The motion must be 
 supported by a positive and strong affidavit, stating 
 that the defendant is about to leave England for the 
 purpose of avoiding the demand of the plaintiff. Mere 
 
 (y) Daniell's Ch. Pr. 1613. [a) Drover v. JJei/cr, L. R., 13 
 
 (r) Hunter's Suif, 117. Ch. D. 242.
 
 THE TRIXCIPAL TXTERI-OCUTORY APPLICATIONS. 221 
 
 belief will not be sufficient (Z>). Like an e.r parte in-i 
 junction, the writ is rarely issued except upon the 
 plaintiff undertaking to pay damages if adjudged to 
 do so. 
 
 An order being obtained, the writ is engrossed on 
 parchment, and indorsed \di]x the name and address of 
 the party or solicitor issuing it, in the same way as a 
 writ of summons, and also with the amount of security 
 to be taken by the sheriff. The writ is then taken to 
 the central office, together with a prceripe or request to 
 seal it, which is done. The writ is then forwarded to 
 the under-sheriff of the county into which it issues, by 
 whom it is executed and returned (c). 
 
 Discharging the Writ. As in the case of an in- 
 junction, so in that of a ne event, the party against whom 
 it is issued may move on notice to discharge it, on the 
 ground, either that the plaintiff has no case, or that the 
 defendant is not intending to go abroad, or upon his 
 jmying the money into court {(I). 
 
 AVhere a defendant wishes to obtain damages for the 
 unnecessary issue of the writ, ho should lose no time in 
 applying for its discharge, as otherwise he may be taken 
 to have waived his claim {e) . 
 
 Section 4. 
 
 Accounts. 
 
 In all cases of ordinary accounts, as for instance in 
 the case of a partnership or executorship, or ordinary 
 
 (b) Daniell's Ch. Pr. 1554. L. J., N. S. 374 ; Daniell's Ch. 
 
 (r) Ayckboume, 8th ed. 285. Pr. 1559. 
 
 {d) Sichelv. Raphael, 4 L. T., (<•) Lees v. Patttrson, L. R., 7 
 
 N. S. 114; James V. North, 28 Ch. D. 866.
 
 222 INTERLOCUTORY APPLICATIONS. 
 
 trust account, where the plaintiff in the first instance 
 desires to have an account taken, the writ of sum- 
 mons should be endorsed with a claim that such account 
 be taken (/) ; and in that case in default of appearance, 
 and also after appearance, unless the defendant by affi- 
 davit or otherwise satisfy the court or a judge that there 
 is some preliminary question to be tried, an order for 
 the account claimed with all usual directions will be 
 forthwith made [g) on an application by summons or 
 notice, supported by an affidavit stating concisely the 
 grounds of the plaintiff's claim for an account {h). 
 
 It would seem that where the account claimed is an 
 executorship or administration account, or where there 
 is, in fact, no issue to be tried, the usual administration 
 judgment will be made on the hearing of the summons 
 "v\ithout the necessity of afterwards going into court (/), 
 and in that case the further consideration will be ad- 
 journed with liberty to apply {j). 
 
 A district registrar can only make an order for an 
 account where default has been made in appearance {k). 
 
 In addition to the accounts above referred to, the 
 court or a judge may at any stage of the proceedings 
 direct any necessary inquiries or accounts to be made or 
 taken, notwithstanding that it may appeal' that there is 
 some special or further relief sought for, or some special 
 issue to be tried, as to which it may be proper that the 
 action should proceed in the ordinary manner (/) . 
 
 (/) E. S. C, Ord. III. r. 8. {j) See Gatti v. Webster, L. E., 
 
 [g) R. S. C, Ord. XV. r. 1. 12 Ch. D. 771. 
 
 (/() lb. r. 2. (A) Irlain v. Irlam, L. E., 2 
 
 (() Hayncs, Gl ; and Seton, 4tli Ch. D. 608. 
 
 ed. p. 8; i;c Hackuell, David v. {I) E. S. C, Ord. XXXIII. ; 
 
 Dalton, W. N. 1879, p. 86. Turquand v. Wihon, L. R., 1 Ch. 
 
 D. 85.
 
 THE PRINCIl'AL INTERLOCUTORY APPLICATIONS. 223 
 
 Of course accounts ordered under these provisions are 
 taken in the ordinary way. 
 
 Section 5. 
 
 Allowance pending Litigation. 
 
 Wherever any property forms the subject of any 
 proceedings, and the judge is satisfied that it is more 
 than sufficient to answer all claims on it which ought to 
 be provided for in the action, he may on summons on 
 notice, at any time make an allowance to any of the 
 parties, of the whole or part of the annual income ; or 
 (where it is personalty) of part of the corpus, up to 
 such time as the court shall think fit {m). Strong cir- 
 cumstances are, however, necessary to induce the exer- 
 cise of this power, and there must be no doubt as to the 
 title of the parties claiming it {n) . 
 
 Section 6. 
 
 Consolidation of Actions. 
 
 Where two or more actions are brought by one 
 plaintiff against the same defendant, they may be 
 ordered to be consolidated. And so also where divers 
 actions are brought by one plaintiff for the same cause 
 of action against several defendants, the com-t or a 
 judge will, on motion, or on summons on notice, stay 
 proceedings in all but one, making that one a test 
 action (o) . And it would seem that where a series of 
 
 (w) 15 & 16 Vict. c. 86, 8. 57. 652. 
 
 («) Rowley v. Burgess, 2 W. R. (o) R. S. C, Old. LI. r. 4.
 
 224 TXTERI.OCUTORV APPLTOATIOXS. 
 
 actions are brouglit by several plaintiffs against one 
 defendant, a test action will be ordered, and the 
 others will be stayed in the meanwhile (;;) ; and in the 
 case of administration actions they will be consolidated 
 or all stayed but one, so far as they ask for the same 
 relief (q). 
 
 Where the actions are in different divisions of the 
 court or (all being in the Chancery Division) they are 
 assigned to different judges, they must (before being 
 consolidated) be transferred to one division and judge, 
 and then he must be asked to consolidate or stay 
 them (r). 
 
 Section 7. 
 Transfer of Actions. 
 
 Any action may be transferred from one divhion of 
 the court to another, either b}' an order of that division 
 or of a judge thereof, on motion or summons (.s-), or by 
 an order of the Lord Chancellor {t), but only with the 
 permission of the president of the division to which it is 
 to be assigned ; and any action may be transferred from 
 one judge of the Chancery Division to another by an 
 order of the Lord Chancellor (»). 
 
 The Lord Chancellor will direct the transfer of any 
 action on a written application to his secretary, accom- 
 
 {p) Smithy. Ckadwic/c, L. R., (.v) R. S. C, Ord. LI. r. 2; 
 
 4 Ch. D. 867 ; 9 Ch. D. 457. HUlnuui v. Mayheic, L. E., 1 Ex. 
 
 (ry) See Re Ami, Maton v. D. 132. 
 
 Quick, 26 W. R. 441. {I) R. S. C, Ord. LI. r. 1. 
 
 {r) Evaniiy.Debenham,2i'W.'R. [u) lb.; and Chapman \. Seal 
 
 900 ; Holmes v. Ilarvei/, 25 "W. R. Tropcrfi/ Co., L. R., 7 Ch. D. 732. 
 80.
 
 THE PRINCIPAL INTERLOCUTORY APPLICATIONS. 225- 
 
 panied by the written consent of all parties ; but where 
 all parties do not consent, the application should he 
 made to his lordship in court (.r). An order transferring 
 an action to the Chancery Division should name the 
 judge to whom it is transferred (//). 
 
 An action will be transferred to a division in which it 
 can be more appropriately and conveniently disposed 
 of (;:) ; and in one case [a), V.-C. Ilall stated that an 
 opinion existed among the judges, that where issues of 
 fact were to be tried by a jury, it would be better to 
 transfer the action to the Queen's Bench Division. But 
 this principle has not been very freely pnt into practice. 
 
 Transfer of Administration Actions. There 
 is a very important exception to the general rule as to 
 the transfer of actions, viz., in the case of administration 
 actions, in which the judge to whom they are assigned"^ 
 may after judgment, or order for administration, and 1 
 without any further consent, order the transfer to him- 
 self_of any action pending in any oi/ier division (but not I 
 in the court of any other judge of his own division (6) ), | 
 brought or continued by or against the executors or 
 administrators of the deceased person whose assets are 
 being administered (c). 
 
 Such an order may be obtained on ex parte motion, 
 leaving it to the other side to move to discharge it {d) . 
 
 {x) Memorandum, Nov. 10th, {n) Clements v. Xurris, W. N. 
 
 1875, L. R., 1 Ch. D. 41. 1878, p. 4. 
 
 {y) R. S. C, Ord. LI. r. 3. (//) See Re Madras, ^r. Co., 
 
 (.-) See milman v. Minjhew, L. R., 16 Cli. D. 702. 
 
 L. R., 1 Ex. D. 132 ; Hollouay {c) R. S. C, Ord. LI. r. 2a. 
 
 V. York, L. R., 2 Ex. D. 833 ; \d) Field v. Field, W.N. 1877, 
 
 llumphreijs Y. Edwards, 45 L. J., p. 98; Whitakerv. Euhimou, ib. 
 
 Ch. 112. 201 ; Re Lamlore Steel Co., L. R., 
 
 10 Ch. D. 487. 
 
 U. (J
 
 226 INTERLOCUTORY APPLICATIONS. 
 
 The same rule applies to cases of tlie winding-up of 
 joint stock companies; but these are " matters" and not 
 " actions." 
 
 Section 8. 
 EemomI of Proceedings from District Registry. 
 
 As we have already seen a defendant can remove an 
 action from a district registry, to the central office with- 
 out leave ; but any party may apply to the court or a 
 judge, or to the district registrar, for an order for the 
 removal on reasonable grounds ; and, on the other hand, 
 an action may be similarly removed from the central 
 office to a district registry [a). The application should 
 be made by summons served in the usual way, and if 
 granted the district registrar transmits to the proper 
 master of the Supreme Court at the record and "writ 
 office all original documents filed with him, and a copy 
 of all entries in his books of proceedings in the action {h). 
 
 Where an application in an action is made to the 
 coui't the proceedings are ij^so facto removed thence- 
 forward to the central office (r). 
 
 Section 9. 
 Special Cases. 
 By Agreement or Compulsorily. Sometimes 
 the question in dispute is merely a question of law, 
 and in that ease the parties may, after the issue of the 
 writ, concur in stating it in the form of a special case 
 for the opinion of the com-t {d) ; and where no such 
 
 (rt) Jud. Act, 1873, s. Go; E. {c)Di/soHv.ricfcIes,2TW.'R.S76. 
 
 S. C, Old. XXXV. r. 13- [d] R. S. C, Ord. XXXIV. 
 
 (i) lb. r. 14. r. 1.
 
 TTIE rRTXCTPAT. INTERLOCTITOTIY APPTJCATIOXS. 227 
 
 agreement is come to, the court, or more usually the 
 judge on summons on notice, may in its or his discretion 
 make an order ordering a special case, wherever there 
 is a question of law which it would be convenient to 
 have decided before any evidence is given or any ques- 
 tion of fact tried (c). Where the fact that a question 
 of law has to be determined appears on the pleadings, 
 no further evidence is required in support of such appli- 
 cation ; but where it is made before the pleadings are 
 delivered, an affidavit of the facts should be made, 
 showing that the determination of the question of law 
 may render it unnecessary to go into the facts (/). 
 
 Printing. Special cases must be printed by the 
 plaintiff, and signed by the parties or their solicitors, 
 and filed by the plaintiff, who must also deliver printed 
 copies for the use of the judge {g). 
 
 No special case, where a party is under disability, can 
 be set down for argument without leave of a judge, 
 obtained on summons, supported by affidavit that the 
 statements of fact in such case, so far as they affect the 
 party under disability, are true (A) . 
 
 The parties may, if they think fit, enter into a written 
 agreement (which is not subject to stamp duty), that 
 according as the judgment of tlie court is in favour of 
 one or the other, a fixed sum or sums to be ascertained 
 shall be paid by one party to the other, either with or 
 without costs ; and the judgment of the com-t may be 
 entered for the sum so agreed or ascertained witli or 
 without costs, as the case may be, and execution may 
 issue on such judgment forthwith (/). 
 
 {>■) lb. r. 2. {[/) E. S. C, Ord. XXXIV. r. 3. 
 
 (/) Metropolitan Board v. Kcic (//) lb. r. 4. 
 
 Itinr Co., L. R., 1 Q. P. D. 727 (<) lb. r. C. 
 
 q2
 
 228 TNTEULOCUTORY APPLICATIOXS. 
 
 A special case may be set down for argument by 
 either party, by delivery to the registrar of a memo- 
 randum of entry, and production of the order, where 
 an order is necessary, giving leave to set it down (k). 
 
 A special case is argued like a demurrer ; and as the 
 decision of the points of law is only a decision or find- 
 ing of the specific issues or questions in dispute between 
 the parties, it is necessary to formally move for judg- 
 ment. On setting down the case therefore, it should 
 be set down not merely for argument, but also on motion 
 for judgment, and notice of motion should be duly given 
 to the other parties, otherwise motion for judgment will 
 have to be made subsequently (/). 
 
 It may be mentioned, that the old method of stating 
 special cases under 13 & 14 Vict. c. 35, has been 
 abolished {m) . 
 
 Section 10. 
 Miscellaneous Interlocutonj Ajjplications. 
 In addition to those above referred to, there are 
 numerous interlocutory applications which may be made 
 in actions, the most usual of which have been inci- 
 dentally referred to under other heads. 
 
 Applications by Summons. For instance, the 
 following applications may be made by summons : — 
 1. As to the guardianship of infants (except the ap- 
 pointment of guardian ad litem), and as to main- 
 tenance or advancement of infants ; and as to 
 allowing a ward of court to go out of the juris- 
 diction, and generally as to the administration 
 of the estates of infant wards of court. 
 
 (A) U.S. C, Old. XXXIV. r..'). {m) R. S. C, Oril. XXXIV. 
 
 {I) Seton, 4tli ed. U. r. 7.
 
 THE rRlNClPAL INTEIILOCTJTOUY APPLICATIONS. 220 
 
 2. For payment of money out of court, where the 
 
 fund does not exceed 300/. cash or stock. In all 
 other cases the application must be by petition. 
 
 3. All applications for enlarging time. 
 
 4. All questions relating to the conduct of actions or 
 
 matters. 
 
 5. All applications for payment into court of pur- 
 
 chase-moneys under sales by the court, and for 
 investment of the same. 
 
 6. In all cases of arbitration to appoint an umpire 
 
 under the Common Law Procedure Act, 1854. 
 
 7. Applications for payment to any person of the 
 
 dividends or interest of any stock, bonds, or 
 securities, standing to the credit of any cause or 
 matter depending to the separate account of such 
 person. 
 
 8. Applications for special orders for taxation, or re- 
 
 viewal of taxation of costs. 
 
 9. Applications for transfen-ing an action from or to 
 
 a county court. 
 
 10. Applications for divers orders as to the conduct 
 
 of an action in chambers, and the procedure in 
 chambers under judgments. 
 
 11. Applications as to the management of property — 
 
 as to receivers when appointed — inspection of 
 
 mines, in the course of an action — for change 
 
 of investments — for leases and management of 
 
 estates in litigation by trustees who are parties 
 
 to the action. 
 
 Applications by Motion of course. With 
 
 regard to interlocutory orders obtainable by motion of 
 
 course, and not hy petition of coune^ there arc now only 
 
 fom-, viz. — (1) A final order of foreclosure or redemp-
 
 230 INTERLOCUTORY APPLICATIONS. 
 
 tion ; (2) Orders 7iisi and absolute to confirm the com- 
 missioners' certificate in partition actions ; (3) Orders 
 making an order of the House of Lords an order of the 
 court ; and (4) Orders for subpcena duces tecum to prove 
 exhibits at the hearing. 
 
 Orders obtainable on Petition of course. 
 These are very numerous, and include orders by con- 
 sent, to enable a defendant to enter an appearance after 
 judgment ; to enter a conditional appearance (without 
 consent) ; to withdi^aw appearance entered for defendant 
 by mistake (by consent) ; for sheriff to return writ of 
 attachment ; for leave to attend proceedings where 
 served with decree ; to discharge process of contempt 
 (by consent) ; to examine a witness de bene esse where 
 he is dangerously ill, or very old, or about to leave the 
 kingdom ; to discharge a distringas on the application 
 of the party who lodged it : for the appointment of a 
 guardian ad litem to an infant, or married woman, or 
 lunatic, on their own application ; to dissolve injunction 
 (by consent) ; to apjDoint a new next friend or relator 
 in place of a deceased one ; for security for costs where 
 plaintiff's residence abroad aj^pears by the writ; to 
 change the solicitor ; to stay proceedings (by consent) ; 
 and some others not of a sufficiently usual character to 
 need notice here.
 
 Division II. 
 
 OF IVIATTERS.
 
 Peeliminaey. 
 
 SuB-Div. I. — IMattees relating to Teustees. 
 
 II. — Mattees eelatixg to Settled PEorEETT. 
 
 in. — Mattees eelatln-g to Ixf.ants. 
 
 IV.— ]MISCELLA^^:ous Mattees.
 
 ( 23a ) 
 
 rRELIMINARY. 
 
 Having now finislied the consideration of actions, it is 
 desirable that some notice should be taken of " matters," 
 or summary proceedings not commenced by writ of 
 summons. Matters are commenced in several ways, 
 the method of instituting them being generally pre- 
 scribed by the statutes by wliich they are authorized. 
 The most usual method of commencing a matter is by^ 
 petition. Some are, however, commenced by summons, 
 "andr^ome by affidavit, and some by motion. Witli re- 
 gard to those commenced by petition, motion or sum- 
 mons, the remarks upon these proceedings, as used in 
 actions, contained in Sub-division XI., Chapter II. of 
 the first Division of this Work, are equally applicable 
 to petitions, motions and summonses in "matters;" 
 save only that, with regard to summonses by which 
 matters are commenced (and which are called " origi- 
 nating summonses"), the form is slightly different to 
 the form of summonses used u})on interlocutory applica- 
 tions. 
 
 It may also be remarked, that in all documents re- 
 lating to matters, the parties are not stated as in 
 actions, but the document is intituled " In the matter 
 of," &.C., stating the matter to which it refers.
 
 ( 234 ) 
 
 Sub-division I. 
 Matters relating to Trustees. 
 
 Chapteb I. — Petitions foe the Opinion of the Couet. 
 Chaptee II. — The Teustee Relief Acts a>-d the Legacy 
 
 Duty Act. 
 Chaptee III. — The Teustee Acts. 
 
 CHAPTER I. 
 
 TETITIOXS FOR THE OPINION OF THE COURT {(l). 
 
 Any trustee, executor or administrator, or any bene- 
 ficiary (i), is at liberty, without the institution of an 
 action, to apply by petition (c) to the High Court (as- 
 signing the petition to any judge of the Chancery Divi- 
 sion except the junior judge), for the opinion or direc- 
 tion of such judge on any question of minor importance 
 arising in the administration of the trust {d) ; for in- 
 stance, as to investments, payment of debts, maintenance 
 of infants and lunatics not so found, repairs, leasing, 
 consenting to a sale, and the like {e). 
 
 But the court will not give an opinion or direction 
 on points involving questions of complicated detail (/), 
 
 (a) 22 & 23 Vict. c. 35, s. 30. (e) He Kmwlcs, 18 L. T., N. S. 
 
 (4) He Ward, 13 L.T.,N'.S.49o. 809 ; lie Box, 1 H. & M. 552 ; Re 
 
 (c) The act also says by sum- Zord Hotha/n, L. K., 12 Eq. 76 
 
 mons, but in practice the appli- Ite Breed, L. R., 1 Ch. D. 220 
 
 cation should be by petition. Jic lie Kershatc, L. E,., 6 Eq. 322 
 
 Dennis, 5 Jur., N. S. 1388. Me T , L. E., 15 Ch. D. 78 
 
 {d) Be Jlidjgeridge, Johns. 15 ; Cuthbcrtson v. Wood, 19 W. K. 
 
 Re Moclcctl (loc. cit.) ; Be Spiller, 265; Re Shaw, ib. 129; Earl Bow- 
 
 8 W. R. 333 ; Re Leslie, "W. N. Icli v. Hood, L. E., 5 Eq. 115. 
 1S7G, p. 93 ; Be Jacob, 9 "W. II. 471. (/) Be Barringion, 1 J. k H. 89.
 
 PETITIONS FOR THE OPINION OF THE COURT. 235 
 
 nor on questions of difficulty (ry), nor on questions of 
 construction (h), nor on hypothetical cases (i). 
 
 Effect of Judicial Opinion. Tlie advice of the 
 court, if acted on, operates as an indemnity to the 
 trustee who has not been found guilty of any fraud, or 
 wilful concealment, or misrepresentation in obtaining 
 it (y) ; but it binds no one, and does not prevent an ac- 
 tion being brought to administer the trust ; and in any 
 such action the opinion of the judge is subject to bo 
 overruled (/.•). 
 
 Title of Petition. A petition under this act must 
 be headed like a pleading and intituled in the matter of 
 the act, and in the matter of the particular will, trust, 
 or administration ; and must be addressed to Ilcr Ma- 
 jesty's High Court of Justice, and marked with tlie 
 name and division of the com't, and of the judge to 
 whom it is assigned (/), 
 
 Service. The act says that it must be served seven 
 clear days before the hearing upon all persons interested, 
 or such of them as the judge shall think expedient {ni) ; 
 and it would seem that the trustees should serve all 
 such persons as they think necessary, and state in the 
 note at the end of the petition whom they have served. 
 It is not permissible to bring on the petition merely to 
 find out who should be served {ii), but of com-sc, if all 
 
 iff) Marsh v. Att-Gcn., 2 J. & {j) 22 & 23 Vict. c. 05, s. 30. 
 
 H. 61. {Ic) Mc Ilockctt, Johns. G28. 
 
 {h) lie Evans, 30 Bea. 232 ; Ro (I) Gen. Ord. 20th Mar. 18G0. 
 
 Lorenz, 1 Dr. & Sm. 401 ; Ec \m) 22 & 23 Vict. c. 35, s. 30 ; 
 
 Hooper, 29 Bea. 657 ; but sec He and Gen. Ord. March, 18G0, r. 3. 
 Michel, 28 Bea. 39 ; Re Green, 8 («) He Green, 8 W. K. 403, 
 
 W. R. 403 ; Re Davies, 9 W. R. overruling ]le Muf/geridgc, sup. ; 
 
 134; Re Elmore, 6 Jur., N. S. Re Tuck, W, N. 1869, p. 15. In 
 
 1325 ; Re Rett, 27 Bea. 576; Re Re Larkcn, W. N. 1872, p. 85, it 
 
 Tci/ton, low. E. 515. was said that it was generally 
 
 (/) Re Box, 1 II. k M. 552. uimcccssary to serve anyone.
 
 236 MATTERS IIEL.VTING TO TRUSTEES. 
 
 necessary parties are not served, the petition will be 
 ordered to stand over in order that they may be ; and, 
 on the other hand, service may be dispensed with (o). 
 
 Presentation and Hearing. The petition is 
 presented and answered and set dowai by the secretary, 
 and heard in the ordinary way, but no evidence is 
 admitted, and no inquiries will be directed {p). The 
 opinion when given is passed and entered like an order, 
 and is called " a judicial opinion," or " advice," or 
 "direction," as the case may be (q). 
 
 Formerly the petition had to be signed by counsel (r), 
 but whether this is now necessary would appear doubt- 
 ful (s). However, there can be no harm in signing it, 
 and until the point is decided, it will be w^ell to do so. 
 
 CHAPTEE II. 
 
 THE TRUSTEE RELIEF ACTS AND THE LEGACY DUTY ACT. 
 
 If a person have in his hands trust moneys, or any 
 government or parliamentary securities, and a difficulty 
 arises in determining the oMTiership of them, the trustee 
 need not incur the risk of paying it over to the person 
 whom he considers to be entitled, although /le may do 
 so if he likes to run the risk of having to refund it, in 
 the event of it appearing that he has paid the wrong 
 party. A trustee, placed in a situation of difficulty of 
 this nature, may either commence an action for the ad- 
 ministration of the triLst, or he may pay the money, or 
 
 (o) Re Larkci, W. X. 1S72. p. (y) Gen. Ord. 20th Mar. 1860, 
 
 85. r. 4. 
 
 [p) Re Modctt, sup. (?•) 23 & 24 Vict. c. 38, s. 9. 
 
 (») R. S. C, Ord. XIX. r. 4.
 
 TRUSTEE RELIEF ACTS AND LEGACY DUTY ACT, 237 
 
 transfer the securities, iuto court under the above acts (/), 
 which is a much cheaper and easier method ; the only 
 difference being, that in the action the trustee could 
 pass his accounts, and get his discharge, whereas, by 
 paying the money into court under the Trustee Relief 
 Acts, he still remains a trustee, and is liable at any time 
 to be called on to account for his trusteeship («), 
 
 Affidavit. A trustee who wishes to take advantage 
 of these acts must file an affidavit, which requires very 
 careful preparation, and is, therefore, almost invariably 
 drafted by an equity counsel. This affidavit is headed, 
 " In the High Court of Justice, Chancery Division," but 
 no particular judge is mentioned. It is intituled in the 
 matter of the trust, shortly describing it, as, for instance, 
 thus : "In the matter of the trusts of the will of A. B., 
 the sum of 1,000/. bequeathed in favour of C. U." The 
 affidavit is further intituled, " In the matter of the Act 
 10 & 11 Yict. c. 96, intituled, 'An Act for better 
 securing trust funds, and for the relief of trustees.' " 
 
 The affidavit then proceeds to state the facts under 
 which the money is paid in, and the draftsman must 
 take particular care to set forth : — 
 
 1. The deponent's name and address. 
 
 2. The place where the deponent is to be served with 
 
 any petition, summons or order, or with notice 
 of any proceeding relating to such money or 
 securities. 
 
 3. The amount of money (in words, not figures (.r) ), 
 
 and description, and amount, of securities in 
 question, and the credit to which he wishes such 
 
 (0 10 & 11 Vict. c. 90; 12 &: {>i) Sec Underliill ou Trusts, 
 
 13 Vict. c. 74, 1G7. 
 
 (x) lie Walls, 24 W. R. 701.
 
 238 MATTERS RELATING TO TPJ'STEES. 
 
 money or securities to be placed, remembering 
 that a separate account must not exceed thirty- 
 six words : and if such money or seeuiities are 
 chargeable mth legacy or succession duty, a 
 statement whether such duty, or any part of it, 
 has or has not been paid. 
 4. A short description of the trust, and of the instru- 
 ment creating it. 
 u. The names of the persons interested in the money 
 or securities, and their places of residence to the 
 best of the deponent's knowledge and behef. 
 C. The deponent's submission to answer all such en- 
 quiries relating to the application of the money 
 or securities, as the coui't or judge may make, or 
 direct. 
 7. A statement whether the money in question, or 
 the dividends on the securities in question, and 
 all accumulations of dividends thereon, are de- 
 sired to be invested in consols, or reduced annui- 
 ties, or New Three per Cents. ; or whether it is 
 deemed unnecessary so to invest them, or to place 
 them on deposit (//). 
 Printing AfB.davit. This alSidavit must be printed 
 and filed in the usual way; and on production of a 
 printed office copy to the paymaster-general he will give 
 the necessary directions {z) . 
 
 Notice. The money, stock or securities having been 
 paid or transferred into, or deposited in, court, the trustee 
 should give notice of the fact to all parties interested (a) ; 
 but where this cannot be done, at least without great 
 trouble and expense, the trustee must use his discretion as 
 to advertising and other^^'ise taking steps for bringing the 
 {y) C. F. V. 34. (.-) lb. («) C. F. Am. Ord. V.
 
 TRUSTEE RELIEF ACTS AND T.EOACY DUTY ACT. 2-30 
 
 matter to the knowledge of tlio party interested. No 
 directions will be given to the trustee with regard to 
 dispensing with notice on application by him for that 
 purpose ; but when a party interested applies to the court 
 by petition for payment out of the money, the court 
 will then consider whether all requisite notices have been 
 given, and, if not, the petition will be ordered to stand 
 over until they are given [b). 
 
 Supplemental Affidavit. Not infrequently errors 
 occur in the original affidavit, and in that case a sup- 
 plemental one may be filed, intituled like the original, 
 and commencing, " I, A. B. &c. of, &c. by way of sup- 
 plement to and in correction of any affidavit filed in this 
 matter on the day of 18 , make oath and 
 
 say as follows." A trustee has even been permitted to 
 pay into court a further sum, on such an affidavit, when 
 he has omitted to pay in such sum on, and mention it 
 in, the original one. 
 
 Petition. The money, stock or securities will be 
 dealt with on the petition of (or where they are under 
 300/. in amount or value on summons taken out by) the 
 parties, or some or one of the parties named in the 
 affidavit as being interested (c) . Any person claiming 
 an interest, who is not named in the affidavit, must 
 proceed by action (d). The petition must be intituled 
 like the affidavit {c), and must be marked with the name 
 of the judge to whose court it is desired to be assigned. 
 
 {b) lie Hardlaj, L. E., 10 Ch. [c) 10 & 11 Vict. c. 96, s. 2 ; 
 
 D. 6G4 ; and see Re Hansford, 7 and C. F. Am. Ord. VI. 
 W. R. 199, 254; Ee Goodman, {d) lie Jejjhson, 1 L. T., N. S. 
 
 W. N. 1870, p. 152 ; Be Palmer, 5 ; Crausc v. Cooper, 1 J. & U. 
 W. N. 1873, p. 101. 207. 
 
 {e) C. F. Am. Ord. X.
 
 240 MATTERS RELATING TO TRUSTEES. 
 
 The petition should first state the trust instrument, 
 tlien the affidavit under which the payment or transfer 
 into or deposit in court was made, and then such other 
 facts as are necessary to support the petitioner's con- 
 tention ; and where the fund is chargeable with legacy 
 or succession duty, it must be stated whether such duty 
 has or has not been paid(/). The petition or sum- 
 mons must also name a jDlace where the petitioner or 
 applicant may be served with any petition or summons, 
 or notice of any proceeding or order relating to the 
 trust fund (g). 
 
 The petition is presented, answered and set down in 
 the ordinary way, and must be served on the trustees, 
 and on all parties claiming any interest in the property, 
 unless of course they join as co-petitioners {//) ; and, on 
 the heariug, the com-t will (if necessary) decide the 
 question which occasioned the difficulty to the trustee (/), 
 and may even order pajnnent to a person not i)etition- 
 ing (J). If not satisfied as to the facts by affidavit, at 
 the request of the parties the court may order an inquiry 
 in chambers (A-). But, on the other hand, the court may 
 direct an action to be instituted, where it appears that 
 the fund cannot be safely distributed without (/) . 
 
 (/) C. F. Am. Ord. XL (/.) Be IFood, 15 Sim. 4G9 ; He 
 
 {(/) lb. Ord. IX. Troiccr, 1 L. T., X. S. 54 ; R. S. C, 
 
 (A) lb. Ords. VII. VIII. Ord. XXXIII. 
 
 (0 He Bloije, 1 M. k G. 48S ; (/) 10 & 11 Vict. c. 9G, s. 2. 
 
 Lewis V. mUitian, 3 H. L. 607 ; For instance, a breach of tru.st 
 
 Ite Allen, Kay, Append. 51 ; Me camiot be remedied on petition. 
 
 Dalton, 1 D., M. k G. 2G5 ; and Be Lloyd, 2 W. E. 271 ; and see 
 
 see cases collected in Morgan's for other cases, Re Foyard, 24 
 
 Ch. Acts, p. 71, 5th ed. L. J., Ch. 441 ; Thorp v. Thorp, 
 
 (J) lie WooUand, 18 Jur. 1012. 1 K. .<c J. 438; Re Sharpe, 15 Sim. 
 
 470.
 
 TRUSTEE RELIEF ACTS AND LEGACY DUTY ACT. 241 
 
 Several Petitions. It sometimes happens that 
 two or more petitions, praying for payment or transfer 
 out of court are presented and heard at the same time 
 by the different parties claiming ; and where a claim is 
 disputed, this is the proper course to adopt, unless by 
 arrangement the necessity of a cross petition is dis- 
 pensed with {))i). In such cases one or more of the 
 petitions will generally be dismissed, and the order 
 made on one only. 
 
 Costs. The trustees are, as a general rule, entitled 
 to their costs of appearing on the petition ; but by 
 paying, transferring into, or depositing in court, the 
 trustees submit themselves to the jurisdiction, and may 
 even be ordered to pai/ costs, where they have availed 
 themselves of the act vexatiously or improperly ; as 
 where they require an unreasonable amount of evidence 
 of identity or otherwise (»). 
 
 Where Accounts disputed. The Trustee Relief 
 Acts do not afford any means of taking accounts, and 
 therefore if a cestui que trust disputes the amount of the 
 money paid in, he must bring an action against the 
 trustees in the ordinary way. 
 
 Dissentient Trustees. "Where all the trustees do 
 not consent to pay or transfer into or deposit in court 
 under the act, the majority may petition the court to be 
 allowed to do so, and the court may order any jierson 
 in whose hands the monies or securities may be, to pay 
 or deliver them up to the majority of the trustees, for 
 the purpose of being paid or transferred into or depo- 
 
 (»0 Lewis V. milman, 3 H. L. 3G6 ; Knight's Trusts, 27 Bea. 45; 
 
 Ca. 607. TVijUi/h'' Trusts, 8 W. R. G45 ; 
 
 («) See Re Elliott, L. R., lo UiickTliill Tr. 1G7 et acq. 
 Eq. 194 ; Cater' s Trusts, 2a Bea. 
 
 U. R
 
 242 ^MATTERS RELATING TO TRUSTEES. 
 
 sited in court (o). The petition should be intituled in 
 the matter of the trust, and in the matter of the Trustee 
 Eelief Act, and of the act 12 & 13 Yict. c. 74, and 
 should be served on the trustees who do not concur (^;). 
 Legacy Duty Act. Under the Legacy Duty Act 
 (36 Greo. 3, c. 52, s. 32), a cheaper method exists of 
 paying money or transferring stock into com-t where, by 
 reason of the infancy or absence beyond the seas, of any 
 person entitled to a legacy, or to the residue of any per- 
 sonal estate, or any part thereof, chargeable with legacy 
 duty, such money or stock cannot be paid to the party 
 entitled. Under this act money may be paid in on a 
 simple request to the paymaster-general ; but stock 
 cannot be transferred without an order obtained on 
 ex parte motion, petition or summons. The money or 
 stock will be dealt with on petition or (where under 
 300/.) on summons, or even on motion. 
 
 CHAPTEE III. 
 
 THE TRUSTEE ACTS. 
 
 Principal Enactments of the Acts. Although it 
 is not intended in this work to treat in any way of sub- 
 stantive law, it seems absolutely necessary that a very 
 short account should be given of the alterations in the 
 law made by the above acts, in order to render the 
 23ractice under them intelligible : but the reader must 
 remember that such an account is merely by way of 
 
 (c/) 12 & 13 Vict. c. 74. {p) lie Brya))t, W. N. 18G8, p. 
 
 123.
 
 THE TRUSTEE ACTS. 243 
 
 " inducement," as tlie old si^ocial pleaders would have 
 put it, and is not intended as in any way a treatise on 
 the Trustee Acts, for which the reader is referred to 
 Mr. Lewin's work and to Morgan's Chancery Acts and 
 Orders. 
 
 The acts in question were passed to remedy the diffi- 
 culty which formerly existed, when it became necessary 
 to appoint new trustees and the legal estate in the pro- 
 perty was outstanding in a lunatic, or infant, or a 
 person who refused to obey an order of the court com- 
 manding him to execute a proper conveyance, l^^ormerly 
 the court could only appoint new trustees in a suit 
 commenced for that purpose, which was of course an 
 expensive and dilatory mode of procedure ; and when 
 the new trustees were appointed, it had no means of 
 vesting the legal trust estate in them, except by ordering 
 the person in whom it was vested to convey it on pain 
 of imprisonment or sequestration, a method which was 
 of course inapplicable to the case of persons tion compos 
 mentis, or infants, and was of no avail even against a 
 contumacious sane adult who had sufficient fortitude to 
 defy the court. 
 
 But by these acts, it was provided that where a lunatic, 
 or person of unsound mind, or an infant, or person out 
 of the jurisdiction, or a person who cannot be found, or 
 about whom it is uncertain whether he be living or 
 dead, is seised or possessed, as trustee or mortgagee, of 
 lands, or of a contingent right therein, or solely or jointly 
 of stock, or a chose in action, or where it is not known 
 which of several trustees of land was the siu'vivor, or 
 where a trustee of lands has died intestate and without 
 leaviug an heir, or where such heir or devisee is not 
 known, or where stock is standing in the name of a 
 
 k2
 
 244 MATTERS RELATING TO TRUSTEES. 
 
 deceased person whose personal representative is a 
 lunatic or person of unsound mind, or -where a chose 
 in action is vested in such a personal representative, or 
 where lands are subject to a contingent right in any 
 unborn person or class of persons who upon coming into 
 existence would, in respect thereof, become seised or 
 possessed of such lands upon any trust, or where trus- 
 tees of lands in stock refuse to convey such lands, or 
 transfer such stock for twenty-eight days after demand 
 by a person entitled to require such conveyance or 
 transfer, then in any of such cases, the Lord Chancellor 
 or Lords Justices (as to such persons as are lunatics 
 so found) or the Chancery Division of the High Court 
 as to such other persons, may make orders vesting 
 such lands in such person or persons, in such manner, 
 and for such estates as may be thought fit, and re- 
 leasing lands from such contingent rights, or disposing 
 of the same, and vesting the rights to transfer such 
 stock or to receive the dividends or income thereof, or 
 to sue for and recover such chose in action or any 
 interest in respect thereof in any person or persons (r). 
 And when any person or persons is or are entitled 
 jointly with any such person as before mentioned, to 
 any stock or chose in action as trustee or mortgagee, 
 the Lord Chancellor or Lords Justices as to lunatics, 
 and the Chancery Division in other cases, may make an 
 order vesting the right to transfer such stock or to 
 receive the dividends or income thereof, or to sue for and 
 recover such chose in action or interest in respect thereof, 
 either in such person or persons so jointly entitled, or 
 in him or them, together with any other person or 
 
 (r) 13 k 14 Vict. c. 60, ss. 3— IG, 22, 23, 24, 25; 15 k 16 Vict. 
 c. 55, ss. 2; 3, 4, 5.
 
 THE TRUSTEE ACTS. 245 
 
 persons (s) . And the Lord Chancellor or Lords Justices 
 or the Chancery Division, as the case may bo, may in 
 all the preceding cases appoint a new trustee or new 
 trustees {t) . 
 
 So far as the preceding cases refer to lunatics or 
 persons of unsound mind, they have, strictly speaking, 
 nothing to do with the Chancery Division, as orders 
 made in pursuance of them are made " in lunacy," and 
 not " in the High Court of Justice" at all {u). Where, 
 however, there are other grounds in addition to lunaci/ 
 for asking for any such, they should he asked for in the 
 High Court of Justice, Chancery Division, and not in 
 lunacy [x). 
 
 It may be here mentioned, that when a decree has 
 been made by the Chancery Division, directing the sale 
 of any lands for the payment of the debts of a deceased 
 person, every person seised or possessed of such lands, 
 or entitled to a contingent right therein as heir or de- 
 visee, will be deemed to be so seised, possessed or enti- 
 tled as " a trustee" within the meaning of the Trustee 
 Acts, and if he refuses to convey, the court may make 
 a vesting order, vesting such lands in the piurcliaser, and 
 may also discharge any contingent right of any unborn 
 person under the will of the debtor {y). And in all 
 other cases of sales ordered by the court, every person 
 so seised, possessed or entitled, who is a party to the 
 suit or proceeding in which the order for sale was made, 
 or who is otherwise bound by such order, is deemed a 
 trustee within the meaning of the above-mentioned 
 
 [s) 1.5 & 16 Vict. c. 00, s. 5. (x) Ec Arron-smith,A3MV. 1123; 
 
 [() lb. 8. 10. lie Gardner, L. R., 10 Ch, D. 29; 
 
 \n) Re Ormcrod, 3 Dc G. & J. Re Curric, ib. 93. 
 219. (>/) 13 & U Vict. c. 60, s. 29.
 
 246 MATTERS RELATING TO TRUSTEES. 
 
 acts (z). Applications, however, for the purpose of 
 vesting lands in purchasers, do not properly come in 
 here, as they are applications in actions, and are made 
 by summons {a). 
 
 The Trustee Acts also provide, that wherever it is 
 expedient to appoint a new trustee or trustees, and it is 
 found inexpedient, difficult or impracticable to do so 
 without the assistance of the court, the Chancery Di- 
 vision may make an order appointing a new trustee or 
 new trustees, who have the same rights and powers as 
 if appointed in a suit, either in substitution for, or in 
 addition to, any existing trustee or trustees ; and such 
 order may be made, whether there be any existing 
 trustee or not (b) ; and upon making any order for the 
 appointment of new trustees or a new trustee, the court 
 may either by the same (as is most usual), or by any 
 subsequent order, direct that any lands subject to the 
 trust, and the right to call for a transfer of stock subject 
 to the trust, or to receive the dividends and income 
 thereof, or to sue for or recover any chose in action 
 subject to the trust, or any interest in respect thereof, 
 shall vest in the person or persons who, upon the ap- 
 pointment, shall be the trustee or trustees, and as to the 
 lands for such estate as the court may direct (c) ; and 
 upon such order, the legal right to transfer such stock 
 wall vest accordingly (d). 
 
 Petition. Orders for the appointment of new 
 trustees and vesting orders under the Trustee Acts, 
 (except vesting orders made in an action,) are obtained, 
 
 {z) 15 & IG Vict. c. 55, s. 1. (c) 13 Sc U Vict. c. 60, ss. M, 
 
 {a) Cons. Ord. XXXV. r. 1. 35. 
 
 {b) 13 & H Vict. c. GO, bs. 32, {d) 15 & 16 Vict. c. 55, s. 6. 
 
 33 ; 15 & 16 Vict. c. 55, s. 0.
 
 THE TRUSTEK ACTS. 247 
 
 on potition. Tlio petition is headed, " In tlio High 
 Court of Justice, Chancery Division," and the name of 
 the judge to whom it is intended to bo assigned must 
 be mentioned. It is intituled, " In the matter of the 
 Trustee Act, 1850," and also where it is applicable, 
 " In the matter of the act 15 & 16 Vict. e. 65, intituled, 
 ' An Act to extend the provisions of the Trustee Act, 
 1850,'" and also in the matter of the particular trust, 
 and is addressed to " Her Majesty's High Court of 
 Justice." In general all ccsfiiis que trusts (infants by 
 their next friends) must bo petitioners, or else the peti- 
 tion must be served upon them (c) ; but where they are 
 very numerous, the service will be dispensed with (./') ; 
 and, in a recent case in which I was counsel, V.-O. Hall 
 made an order for the ajopointment of a new trustee, 
 and the vesting of real estate on the petition of the con- 
 tinuing trustees and without service or any cestui que 
 trust ; the continuing trustees having power to appoint 
 a new trustee, and the petition being only necessitated 
 by the fact of one of the trustees having gone abroad, 
 and not having been heard of for some years {g). 
 
 The petition contains a concise statement of the trust 
 instrument, the present condition of the trusts and pro- 
 perty, showing who are the cestuis que trusts, and which 
 if any of them are sui Juris, and which not, and stating 
 the several facts which make tlie application necessary 
 or desirable ; and where new trustees are to bo ap- 
 pointed, must state that the petitioners are desirous 
 that the persons nominated should be appointed, and 
 that they are fit and proper persons, and are willing to 
 act. The petition must then pray for the order desired, 
 
 (e) He Fellowes, 2 Jur. G2. (y) Be Breltlc, V.-C. Hall, 1st 
 
 (/) He Smyth, 2 Do G. & S. July, 1881. 
 781 ; Re Sharpli'j, 1 W. E. 'J71.
 
 248 MATTERS RELATING TO TRUSTEES. 
 
 and end with the usual note as to whether it is intended 
 to serve it on any person, and if so, upon whom. 
 
 Where it is necessary to appoint a new trustee of 
 several distinct settlements, in place of a person who 
 was trustee of each of them, an order may be made on 
 one petition intituled in all the settlements where all 
 the settlements are sufficiently connected, as in the case 
 of the maniage settlements of several sisters {/i). 
 
 Persons to be appointed new Trustees. With 
 
 regard to the persons v/hora the court will appoint new 
 trustees, the reader is referred to works on trusts aud 
 trustees. 
 
 Evidence. The petition is presented, answered, 
 set down, and served, and heard in the usual way. At 
 the hearing it must be verified by affidavit ; and certi- 
 ficates of the deaths of the various deceased persons 
 must be produced, also duly verified by affidavit, and an 
 affidavit of fitness of the proposed new trustees, and 
 their written consent to act, also verified by affidavit, 
 must be produced. 
 
 Where a vesting order of copyholds is asked for, the 
 written consent of the lord of the manor should bo 
 obtained if possible, and duly verified by affidavit and 
 produced {i). By doing so, the lands wiU vest without 
 any surrender "or admittance ; but otherwise a person 
 must be appointed to convey or assign the lands {i). The 
 lord should not, however, be served with the peti tion, as 
 the order is made subject to his rights, iFTie does not 
 consent to it (A-). 
 
 (A) Ee Brcttk, V.-C. Hall, 1st {k) lie Flitchcroft, I jiir., N. S. 
 
 July, 1881. 418; I'atcrson x. Paterson, L. R., 
 
 {i) 13 & 14 Vict. c. GO, s. 28; 2 Eq. 31; Re Lane, 12 W. R. 
 
 Ayles V. Cox, 17 Bea. 584 ; Cooper 710. 
 V. Jones, 25 L. J., Ch. 240.
 
 THK TRUSTEE ACTS. 249 
 
 Hearing". On the heariug of tlio application, the 
 court may make an order in conformity to the acts, or 
 may order the case to stand over for further evidence, or 
 to enable notice or any further notice of the application 
 to be served, or may refer the matter to chambers, or 
 may dismiss the appliration cither with or without 
 costs (/). 
 
 The Order. The order is drawn up, passed, and 
 entered, in the usual way like a judgment. 
 
 A vesting order made under the acts, is conclusive 
 evidence of the truth of the allegations as to the disqua- 
 lification of the trustee or mortgagee who is divested by 
 the order ; but upon an action by such trustee or mort- 
 gagee, the court may direct a reconveyance or reassign- 
 ment of any lands conveyed or assigned by the vesting 
 order, or a redisposition of any contingent rights con- 
 veyed or disposed of by the order, and may order the 
 petitioners to pay the costs occasioned by their having 
 improperly obtained such an order {in) . 
 
 Vesting orders under the act may be made in the case 
 of charity trustees, however appointed {»). 
 
 Orders under the Trustee Acts require to be stamped 
 like deeds for elTectuating the same object ; thus, an 
 appointment of new trustees requires a lO.s'. stamp, and 
 if accompanied by a vesting order, another lO.s. stamp 
 will be needed, but not when the vesting order is of 
 stock only. Where it is a vesting order of any kind of 
 security coming under the head of " mortgage " in the 
 Stamp Act, it must be stamped nd valorem as a transfer 
 of mortgage (o). 
 
 (0 13 & 14 Vict. c. 60, 8S. 41, {») lb. s. 4.5. 
 
 42. {o) 1.5 & 16 "Vict. c. 55, s. 13. 
 
 (;«) lb. 8. 44.
 
 250 MATTERS RELATING TO TRUSTEES. 
 
 Where a mortgagee is an infant, or person of unsound 
 mind, and a vesting order is asked for by the mortgagor, 
 he must pay the principal, interest and costs into court 
 in trust in any cause then depending concerning such 
 money ; and if there be none, then to the credit of such 
 infant or person of unsound mind, subject to the order 
 and disposition of the court. The money is paid in on 
 the direction of the paymaster-general, obtained on a 
 written request in the ordinary way (;;). 
 
 Costs. The order on a petition under the acts should 
 mention the way in which the costs are to be paid, which 
 will be out of the corpus of the fund, when the applica- 
 tion is for the benefit of the estate, and out of the in- 
 come where for the benefit of the life tenant ; and where 
 it is only for the benefit of those in remainder, they 
 must pay the costs themselves ( q) . 
 
 Lastly, the court may order the petition to stand over, 
 until the rights of the petitioner may be declared in an 
 action, to be instituted for that purpose. 
 
 {2)) 13 & 14 Vict. c. 60, s. 48. Jur. 02 ; r,c Braclcciibur'j, L. R., 
 (<?) lb. s. 51 ; Ee Fellowes, 2 10 Eq. 45. 
 
 I
 
 ( 251 ) 
 
 Sub-division II. 
 Matters relating to Settled Property. 
 
 Chapter I. — Turn Settled Estates Act, 1877. 
 Chaptek II. — The Lands Clauses Consolidation Acts. 
 
 CHAPTER I. 
 
 THE SETTLED ESTATES ACT, 1877. 
 
 Objects of the Act. As in the case of the Trustee 
 Act, so also before explaining the practice under the 
 Settled Estates, it is necessary to give a short summary 
 of the objects of the act. The act, then, is a consolida- 
 tion, with amendments, of several prior acts, the objects 
 of which were, in certain cases, to give the Chancery 
 Division power to authorize leases and sales of settled 
 estates where it may consider that such leases or sales 
 would be proper and consistent with duo regard for the 
 interests of all parties entitled under the settlement; 
 and also to give persons in possession of land for certain 
 limited estates or interests, power (without the consent of 
 the court) to grant agricultural or occupation leases at 
 rack rents for reasonable periods. In fact, the intention 
 of the legislature was to make all real property (except a 
 few estates which are entailed by act of parliament) as 
 saleable as if proper powers for that purpose were in- 
 serted in all settlements («). 
 
 {a) Seo Ee S/iepheard's Settled JBeiolei/ v. Curler, lj.H.,^Ch. Ap. 
 Estates, L. R., 8 Eq. 573; lie 240. 
 Clar/:, L. R., 1 Ch. Ap. 291 ;
 
 252 MATTERS RELATING TO SETTLED PROPERTY. 
 
 Leases. The court has power to grant or renew 
 leases of the whole or any parts of settled estates, or of 
 any rights or privileges over them, for any purpose, 
 whether involving waste or not; provided (1) That every 
 lease he made to take effect in possession at or within 
 one year from the making of it, and do not exceed in 
 duration twenty-one years for an agricultural or occu- 
 pation lease, forty years for a mining lease, or lease of 
 water mills, way leaves, water leaves or other rights or 
 easements, sixty years for a repairing lease, or ninety- 
 nine years for a building lease ; but such leases (except 
 agricultui'al leases) may be for longer periods than those 
 above specified, if the court be satisfied that it is the 
 usual custom of the district and beneficial to the in- 
 heritance (/>»). (2) That on every such lease the best 
 rent, or reservation in the nature of a rent, either uni- 
 form or not, that can be reasonably obtained, be reserved, 
 payable half-yearly or oftener, without taking any pre- 
 mium, with certain specific provisions with regard to 
 mining leases. (4) That no such lease shall authorize 
 the felling of timber, except for clearing spaces for 
 buildings or works. (5) That every such lease be by 
 deed, executed in counterpart, and containing a condi- 
 tion for re-entry on nonpayment of the rent for a period 
 of twenty-eight days after it becomes due, or for some 
 less period. The act also contains certain provisions 
 authorizing the insertion of such covenants, &c., as the 
 court shall think desii'able, and also in relation to the 
 surrender of leases for the purposes of renewal. 
 
 The court also has power to authorize preliminary 
 contracts to grant leases, any of the terms of which 
 
 (b) Sect. 4.
 
 THE SETTLED ESTATES ACT, 1877. 253 
 
 may be varied in tlie leases themselves (c) ; and also 
 power to authorize the lords of settled manors to give 
 licences to their copyhold or customary tenants to grant 
 leases of lands held by them of such manors {d). The 
 power to authorize leases may be exercised by the court, 
 either by approving of particular leases, or by ordering 
 that powers of leasing in conformity with the provisions 
 of the act shall be vested, either in the existing trustees 
 of the settlement, or in any other persons ; and such 
 powers when exercised by such tinistees take effect 
 in all respects as if the power so vested in them had 
 been originally contained in the settlement, and so as 
 to operate (if necessary) by way of revocation and new 
 appointment of uses, or otherwise as the court may 
 direct. And in every case the court, if it thinks fit, has 
 power to impose any conditions as to consents or other- 
 wise on the exercise of the power, and to authorize the 
 insertion of provisions for the appointment of new 
 trustees from time to time for the purpose of exercising 
 the powers of leasing (e). 
 
 Sales. The court has power, if it deems it proper 
 and consistent with a due regard to the interests of all 
 parties entitled under the settlement, to authorize a sale 
 of the whole or any parts of any settled estate, or of any 
 timber (not being ornamental timber) growing on a 
 settled estate (/) ; and when land is so sold for building 
 purposes, the whole or part of the consideration may 
 consist of a chief rent {(j) . Minerals may be excepted 
 from any such sale, and any rights or privileges re- 
 served ; and the purchaser may be required to enter into 
 
 ((•) Sect. 8. (/) Sect. 16. 
 
 {d) Sect. 9. iff) Sect. 18. 
 
 {e) Sects. 10, 13.
 
 254 MATTERS RELATING TO SETTLED PROPERTY. 
 
 covenants or submit to any restrictions which the court 
 may deem advisable {//). 
 
 The court may also direct that any part of any settled 
 estate be laid out for streets, or roads, paths, squares, 
 gardens or open spaces, sewers, drains or watercourses, 
 either to be dedicated to the public or not ; and may 
 direct that the parts so laid out, remain vested in the 
 trustees, or be conveyed to or vested in other trustees 
 upon trusts for continuing the appropriation thereof to 
 such purj)oses (/) ; and may also direct that the expense 
 of carrying out such works be defrayed by means of a 
 sale or mortgage of, or charge upon, all or any part of 
 the settled estate ; or be received and paid out of the 
 rents, or out of moneys liable to be invested in the pur- 
 chase of lands to be settled to the like uses, or out of 
 the income of such moneys, or out of accumulations of 
 rents, and may also give directions as to the repair of 
 such works out of such rents or accumulations {k). 
 
 Protection of Settled Estates. The coiu-t, if it 
 consider it proper and consistent with a due regard for 
 the interests of all parties, may sanction any action, de- 
 fence, petition to parliament, parliamentary opposition 
 or other proceedings appearing to the court necessary 
 for the protection of any settled estate, and may order 
 that all or any part of the costs be raised and paid by 
 any of the means above mentioned for defraying the 
 costs of laying out streets, &c. (/). 
 
 Such, then, is a short account of the powers conferred 
 on the Chancery Division by the Settled Estates Act, 
 1877, but as they are only mentioned in this work in 
 order to make an account of the practice under them in- 
 
 (//) Sect. 19. (/■) Sect. 21. 
 
 (0 Sect. 20. (/) Sect. 17.
 
 THE SETTLED ESTATES ACT, 1877, 255 
 
 telligible, the reader is referred to works treating of the 
 act itself for an account of the laio relating to it, and of 
 the eases which have been decided in reference to the 
 construction of the powers given to the court by the 
 act (w/). 
 
 Practice. Applications to the court to exercise any 
 of the powers conferred by this act are made by peti- 
 tion, headed " In the High Coiu-t of Justice, Chancery 
 Division," mentioning the name of the judge to whose 
 court they are to be assigned, and intituled " In the 
 matter of the estates settled by the settlor or settlors" 
 (naming one of them), and referring to the instrument 
 by which the settlement was created, and mentioning 
 the parish, place or county in which the hereditaments 
 to be dealt with are situated, and also " In the matter 
 of the Settled Estates Act, 1877 " {n). For example, 
 take the following title of a petition : — 
 
 In the High Court of Justice. 
 Chancery Division. 
 Vice-Chaucellor Hall. 
 
 In the matter of estates settled by John Smith by will dated 
 the 12th day of November, 1842, consisting of messuages 
 and hereditaments sittiate in Queen Square, Wolvci'hampton, 
 in the county of Stafford, 
 
 and 
 In the matter of the Settled Estates Act, 1877. 
 To Her Majesty's High Court of Justice. 
 
 A petition is absolutely necessary, as an order under 
 the act cannot be made on summons or motion in an 
 action (o). But, of course, if an administration action is 
 pending, the petition sliould be intituled both in the 
 action and in the above matters. 
 
 {m) See Middleton's Settled 1878, Ord. II. 
 Estates Act, 1877. (o) Ta>jJor \. Tmjlor, L. R., 1 
 
 (/() Settled Estates Act Orders, Ch. D. 431.
 
 256 MATTERS RELATING TO SETTLED PROPERTY. 
 
 Petitioners. With regard to the parties, some 
 person entitled legally or equitably to the possession, 
 or to the receipt of the rents and profits of the settled 
 estate, for a term of years determinable on his death, 
 or for an estate for life, or any greater estate, or as 
 assignee of any such ]Derson, must be a petitioner (p), 
 and all other persons interested maij be joined as peti- 
 tioners. If there be no person in existence falling 
 within the description above given of a necessary peti- 
 tioner, it would seem that the court cannot be set in 
 motion {q), although it is difficult to reconcile this state- 
 ment with one case in which a petition was presented 
 by a widow entitled during icidow/iood, and by her chil- 
 dren entitled in remainder, and allowed (r). 
 
 Mortgaged Property. The fact that the property 
 is mortgaged, does not prevent the petition being pre- 
 sented ; although, of course, the order made will be 
 subject to the rights of ihe mortgagee («). 
 
 Contents of Petition. The petitioner's full name, 
 address and description must be stated (/). 
 
 The petition must contain (1) a short statement of the 
 settlement ; (2) an account of the devolutions (if any) 
 of the property under the trusts of the settlement, 
 showing who are entitled in possession and who in re- 
 mainder ; (3) a detailed description of the property 
 intended to be dealt with, either in the body of the 
 petition, or by way of a schedule, or annexed plan (u) ; 
 (4) a statement of the grounds upon which the applica- 
 
 (p) Sect. 23 ; iiud Tui/lor v. R. 888. 
 Taijlor, L. E,., 3 Ch. D. 145. (*) Sect. 54. 
 
 (q) Taylor v. Taylor, L. E.., 1 {t) Settled Estates Act Orders, 
 
 Ch. D. 431. 1878, Ord. XXXI. 
 
 [r) WUllaim v. WiUUims, 9 W. (^0 lb. Ord. II.
 
 THE SETTLED ESTATES ACT, 1877. 257 
 
 tion is made, stating any provisional contract that may 
 have been entered into for letting or selling the pro- 
 perty ; (5) a statement that no application has heen 
 made to either house of parliament for the purpose of 
 effecting the object of the petition, or any similar object ; 
 or if such application has been made, that it was not 
 rejected on its merits (.r) ; (G) an address within tln'ee 
 miles from Temple Bar, where the petitioner may be 
 served with any order of the court relating to the object 
 of the petition. 
 
 Tlie petition then prays for the order which is desired, 
 and ends with a note, stating whether it is or is not 
 intended to servo it on any person. Service is com- 
 monly made upon all parties interested other than peti- 
 tioners ; but it would seem that service of the petition 
 is not required, although, as we shall see presently, 
 service of notice of it is (//). 
 
 Infants. Where a petitioner is an infant, he peti- 
 tions in the first instance by his next friend ; but 
 although the petition is presented and answered in this 
 form, it is nevertheless necessary to apply at once for 
 the appointment of a special guardian to represent him ; 
 and when such guardian is appointed, if he be the same 
 person as the next friend (as is usual), the words "next 
 friend" are struck out of the petition, and the word 
 "guardian " substituted ; and if the guardian be not the 
 same person as the next friend, the Litter's name is 
 struck out, and the guardian's name substituted (~) . 
 
 Tha application for the appointment of the guardian 
 is made by summons at chambers, taken out by the 
 next friend, intituled like the petition, and served on 
 
 (j) Sect. 32. (;) Settled Estates Act Orders, 
 
 (//) Seton, 4th ed. 1483. 1878, Ord. Y. 
 
 u. s
 
 2o8 MATTERS RELATING TO SEITLED PROPERTY. 
 
 the infant's parent, testamentary guardian, or guardian 
 appointed by the court, unless the court or judge dis- 
 penses "with such service (a) . 
 
 This summons must be supported by an affidavit 
 stating (1) the age of the infant ; (2) whether he has 
 any parent, testamentary guardian, or guardian ap- 
 pointed by the covirt, and if so, whether such parent or 
 guardian has any interest in the application, and if he 
 has, the nature of such interest ; (3) where, and under 
 whose care, the infant is residing, and at whose expense 
 he is maintained ; (4) in what way the proposed 
 guardian is connected with the infant, and why pro- 
 posed, and how qualified ; (5) that the proposed 
 guardian has no personal interest in the application, 
 or if he has, the nature of his interest, and that it is 
 not adverse to that of the infant ; and (6) the consent of 
 the guardian to act {b). 
 
 Where the infant is tenant in tail, the mere appoint- 
 ment of a guardian is not of itself sufficient ; for the 
 guardian cannot act when appointed, without the special 
 direction of the court. This direction is obtained on 
 summons issued by the next friend, and served on the 
 guardian or proposed guardian, and may be, and usually 
 is, combined with the application for the appointment of 
 the guardian. On the hearing of this application, the 
 guardian or proposed guardian must make an affidavit, 
 stating that it is proper and consistent with a due regard 
 to the infant's interest that such direction should be 
 given (c). 
 
 Lunatics. In the case of a lunatic, he petitions by 
 
 («) Settled Estates Act Order.s (e) Sect. 49 ; and Settled Estates 
 
 1878, Old. VIII. Act Orders, 1878, Ords. VI., IX., 
 
 (A) lb. Ord. X. XII.
 
 THE SETTLED ESTATES ACT, 1877. 259 
 
 his committee ; but before doing so, the committee must 
 get the assent of the Lord Chancellor or Lords Justices, 
 as the judges entrusted with the care of lunatics (r/). 
 This is obtained by applying to the Master in Lvmacy 
 for a special report, which he makes and submits to one 
 of the judges in question, who indorses it. But in 
 addition to this, where the lunatic is tenant in tail, the 
 committee must also apply after the petition is pre- 
 sented for the special direction of the judge of the 
 Chancery Division to whose court the petition is 
 assigned ; but the production to such judge of the 
 authority granted by the judges in lunacy is sufficient 
 evidence upon which he may issue his directions (p), 
 unless he requii'es more. 
 
 Persons of Unsound Mind. In the case of a 
 person of unsound mind not so found, the court has no 
 jurisdiction to appoint a guardian either to petition or 
 consent, and consequently it would seem that no such 
 person can be a petitioner until he is " found a lunatic" 
 by inquisition (./') ; but the court may, in a fit case, dis- 
 pense with the consent of a person of unsound mind. 
 
 Married Woman. A married woman may be a 
 petitioner, whether of full age or not (g), and whether 
 restrained from anticipation or not (/)) ; but (even where 
 the property is settled to her separate use (i) ) she must 
 be examined apart from her husband touching her 
 knowledge of the nature and effect of the application, 
 and her free desire to make a consent to it. The ex- 
 
 {d) Seton, 4th od. 1480; lie (/) He C/oiif/fi, L. K., lo Eq. 
 
 Woodstock, L. R., 3 Ch. App. 248 ; Be U'oodntock, sup. 
 
 229. [g) Sect. 52. 
 
 [e) Sect. 49; and Settled Estates (/<) Sect. oO. 
 
 Act Orders, 1878, Ord. XI. (.) lb. 
 
 s2
 
 260 MATTERS RELATING TO SETTLED PROPERTY. 
 
 amination may take place at any time after the petition 
 is presented and answered (A), and may be taken before 
 tbe judge, either in court or in chambers. If taken in 
 coiu't, the registrar takes a note of it, which is sufficient 
 evidence of the examination having been taken ; if 
 taken in chambers, the chief clerk indorses a memo- 
 randum of it on the petition (/). The examination 
 may also take place before a special examiner, appointed 
 on the application of the petitioner. A solicitor who is 
 a perpetual commissioner to take acknowledgments of 
 deeds by married women may be appointed to take the 
 examination, by a judge at chambers, without summons 
 or order, upon the request of the petitioner, and a certi- 
 ficate of the solicitor for the petitioner that the person 
 to be appointed is not a solicitor for the petitioner or 
 for any party whose concurrence or consent to the 
 application is required. This request and certificate 
 need not be served on any person. Where an exa- 
 mination by such solicitor will cause unreasonable ex- 
 pense, delay or inconvenience, or where the married 
 woman is resident out of the jurisdiction, an appKcation 
 may be made by summons ex parte by the petitioner to 
 appoint, as examiner, a solicitor (if the woman is within 
 the jurisdiction), or any other person (if she be not 
 within the jurisdiction) (;«). 
 
 The request and certificate for the appointment of an 
 examiner is intituled the same as the petition, and then 
 proceeds as follows {u) : — 
 
 The petitioners, Sarah Perry and Mildred Clarke, in a petition 
 presented in these matters on the 20th day of January, 1881, request 
 
 (/.•) Settled Estates Act Orders, (//,) lb. Ord. XIV. 
 
 1878, Ord. XIII. («) lb. Appendix, Form 7. 
 
 (/) lb. Ord. XXVIII.
 
 TIIK SETTJ.El) ESTATKS ACT, 1877. 261 
 
 that Clifford Jones, of No. 300, Holland Road, Kensington, in tlio 
 county of Middlesex, being a solicitor and a perpetual commissioner to 
 take the acknowledgment of deeds by married women, maybe appointed 
 for the purpose of examining the above-named petitioners, Sarah 
 Perr)--, the wife of Thomas Perry, of No. 500, High Street, Kensington, 
 aforesaid, grocer, and Mildred Clark, the wife of Charles Clark, of 
 No. 650, Earl's Court Road, in the said county of Middlesex, draper, 
 respectively, touching their knowledge of the nature and effect of the 
 application intended to be made by the petition, and to ascertain 
 ■whether they, the said Sarah Jones and Mildred Clark, respectively, 
 freely desire to make such application [oy cohere the married u-oman is 
 not a petitioner, to consent to suck {tpplicalion']. 
 
 We, the solicitors for the petitioners, hereby certify that the said 
 Clifford Jones is not the solicitor for the petitioners or for any party 
 whose concurrence or consent to the application is required. 
 
 Dated this 25th day of January, 1881. 
 Seymour & Co., 
 
 Solicitors for the petitioners, 
 
 150, Bedford Row, "W.C. 
 
 When the application is granted, the chief clerk will 
 append a memorandum to this, to the effect that the 
 judge appoints the party proposed. 
 
 A summons for the same pui'pose is prepared in a 
 way so similar as to need no explanation. 
 
 The married woman, on being examined before the 
 examiner, must sign an acknowledgment (intituled 
 like the petition) to the following effect (o) : — 
 
 The examination of the petitioners, Sarah Perry, the wife of Thomas 
 Perry, of, &c., and Mildred Clark, the wife of Charles Clark, 
 of, &c. 
 
 We, the said Sarah Perry and Mildred Clark, having been this day 
 respectively examined, apart from our respective husbands, touching 
 ciu' knowledge of the nature and effect of ah application intended to 
 be made to the High Court of Justice, by a petition presented in 
 these matters on the 20th day of January, 1881, by us [or by ], 
 
 for answer thereto severally say that we are aware of the nature and 
 
 (o) lb. Appendix, Form 9.
 
 262 MATTERS RELATING TO SETTLED PROPERTY. 
 
 efPect of the said intended application, and we severally hereby desire 
 to make [or to consent to] such application. 
 
 As witness our hands this 10th day of February, 1881. 
 Witness to the signatvu'e of the said ~] 
 S. Peny and M. Clark, \ 
 
 John SinxH, > ,_ ^ 
 
 180, Elsham Road, j 
 
 Kensington. J 
 
 At the foot of the acknowledgment the examiner 
 makes the following certificate (j)) : — 
 
 I, the iindersigned Clifford Jones, being the person appointed by 
 the Master of the RoUs for the purpose of examining the above-named 
 Sarah, the wife of Thomas Perry, and Mildred, the wife of Charles 
 Clark, hereby certify that I have, this 10th day of February, 1881, 
 examined the said Sarah Perry and Mildred Clark apart from their 
 respective husbands, touching their knowledge of the nature and 
 effect of the application intended to be made by the petition above 
 referred to, and I have taken such examination in writing as above 
 set forth ; and I further certify, that at the time of such examination 
 I explained to them the natm-e and effect of the said application, and 
 I am satisfied that they were aware of the nature and effect of such 
 application, and that they freely desire to make [or to consent to] the 
 said application. 
 
 Cliffokd Joxes. 
 
 Witness, 
 
 John Smith. 
 
 The ■vsdtness to the signatures of the married women 
 must make an affidavit verifying the fact that he saw 
 the married women sign the acknowledgment, and the 
 examiner sign the certificate, and that " the signatures 
 Sarah Perry and Mildred Clark attached to the paper 
 writing now produced to me, and marked A, are respec- 
 tively the proper handwritings of the said Sarah, the 
 wife of Thomas Perry, of, &c., and of the said Mildred, 
 the wife of Charles Clark, of, &c. ; and that the signa- 
 
 {])) Settled Estates Act Orders, Appendix, Form 10.
 
 THE SETTLED ESTATES ACT, 1S77. 263 
 
 ture, Clifford Jones, attached to the paper writing now 
 produced to me, and marked B, is the proper hand- 
 writing of Clifford Jones, of, &e. ; and I fiu'ther say 
 that the signature, John Smith, attached to the said 
 paper writings as a witness is my handwriting" {q). 
 
 Naming Day for Hearing. At the time of pre- 
 senting the petition, the petitioner should name a day 
 for bringing it on for hearing, which must be not 
 sooner than eight clear days after the presentation. If 
 the petitioner is not ready on the day named, the peti- 
 tion will be ordered to stand over, either to a day 
 named or generally; and in the latter case will be 
 restored to the paper on the application to the secre- 
 tary of petitions by the petitioner, without the necessity 
 of mentioning the matter to the judge ; but two clear 
 days' notice of the restoration must be given to all 
 parties interested (/'). 
 
 Consent of Interested Parties. Before pre- 
 senting a petition under the act, it is desirable to see 
 whether the consent of all parties entitled to object can 
 be secured ; as in general such consent will not be dis- 
 pensed with, except as hereafter mentioned. The par- 
 ties whose consent must be sought are the following : — 
 AVhere there is a tenant in tail, or successive tenants in 
 tail, of full age, then such tenant in tail, or if more 
 than one, the first tenant in tail, and all persons claim- 
 ing prior to him, and the trustees of unborn persons 
 claiming prior to him, are the proper parties to consent. 
 In all other cases, all other persons in existence having 
 any beneficial interest under or by virtue of the settle- 
 ment, and the trustees of unborn persons having any 
 
 {q) See Re Clough, L. R., 15 {;■) Settled Estates Act Orders, 
 
 Eq. 284 ; Re Woodstocl; sup. 1S7S, Ord. III.
 
 264 MATTERS RELATING TO SETTLED PROPERTY. 
 
 such interest, are the proper parties (s). Where there 
 is an infant tenant in tail, the above parties are still the 
 parties to consent, and also persons entitled suhHcqucntli/ 
 to such tenant in tail, unless the coiu-t (as it may do if 
 it think fit) dispenses with the consent of such subse- 
 quent persons {t) . 
 
 Where the concurrence and consent of any such per- 
 sons has not been obtained, a notice must be served on 
 each such person, requiring him to notify within a 
 specified time whether he assents to or dissents from 
 the application, or submits his rights or interests, so far 
 as they may be affected by the application, to be dealt 
 with by the court ; and such notice must specify to 
 whom, and in what manner, such notification is to be 
 delivered or left. In case no answer is made to such 
 notice, the person to whom it has been given will be 
 taken to have submitted his rights to the court {ii). 
 
 The giving of this notice (save where given to a 
 person of unsound mind not so found, or a person out 
 of the jurisdiction, in which cases an ex parte summons 
 for directions must be taken out by the petitioner) re- 
 quires no order or direction of the court, but should be 
 in the form No. 3, in the Appendix to the Settled 
 Estates Orders, 1878 ; and the time to be specified in 
 the notice for the answer thereto to be given is, in the case 
 of an infant, to be such time as directed in the order 
 appointing a guardian to such infant (of which we 
 shall treat a few lines further on) ; and in the case of a 
 married woman or committee of a lunatic not less than 
 twenty-eig^ht clear days after service ; and in any other 
 case not less than fourteen days after service {>r). 
 
 (*) Sect. 24. {w) Settled Estates Act Orders, 
 
 (0 Sect. 25. 1878, Ord. IV. 
 
 [n) Sect. 26.
 
 THE SEITLED ESTATES ACT, 1877. 265 
 
 The court may dispense with notice where (1) the 
 person cannot he found ; or (2) where it is uncertain 
 whether he he living or dead ; or (-J) in ease it appears 
 tliat such notice cannot he given witliout expense dis- 
 proportionate to the value of the subject-matter of the 
 application, either on the ground of such person's in- 
 terest being small or remote, or being similar to those 
 of any other person or persons, or on any other ground ; 
 and in that case such person will be deemed to have 
 submitted his interest to be dealt with by the court {x). 
 
 In the case of infants and lunatics and married 
 women who are not petitioners, the same rules apply as 
 if they were petitioners. But it must always be borne 
 in mind that in the appointment of a guardian and oh- \ 
 taining special directions, or getting an examiner ap- 
 pointed, the p etitioner has the conduct of the proceed- 
 j'ngs, and takes out the necessary summons or makes 
 the necessary requests, even where the person with 
 regard to whom they are taken out or made is not a 
 petitioner. 
 
 Notice must also be given to all trustees who are 
 seised or possessed of any estate m trust for any person 
 whose consent or concurrence to or in the application is 
 required, and on any other parties whom the court con- 
 siders ought to be served (//). 
 
 Any person served with notice, whetlier as a person 
 interested or as a trustee, may, upon reasonable notice to 
 the petitioner's solicitor, inspect the petition Avithout 
 payment of any fee, and is entitled to be furnished 
 with a copy on the usual terms as to copies [z) . 
 
 On the hearing of the petition, affidavits must be filed 
 
 {x) Sect. 27 ; and see lie isjjicr- (r) Settled Estates Act Orders, 
 
 teat/, L. R., 10 Ch. D. 230. 1878, Ord. XXII. 
 
 (y) Sect. 30.
 
 266 MATTEKS RELATING TO SETTLED PROPERTY. 
 
 showing that it is in fact proper and consistent, with a 
 due regard for the interests of all parties, that the order 
 asked for should be made ; and that notice of the applica- 
 tion has been served on all trustees ; and that an applica- 
 tion to a similar effect has not been made to parliament, 
 and rejected or reported against (a) . And where leasing 
 powers or a lease are prayed for, evidence must be pro- 
 duced sufficient to enable the com't to ascertain the 
 nature, value and circumstances of the estate, and the 
 terms and conditions on which the leases thereof ought 
 to be authorized (b). 
 
 Hearing. At the hearing the order will be made, 
 or the petition dismissed, or ordered to stand over for 
 further evidence, or sometimes, but rarely, referred to 
 chambers. As a general rule, a sale for less than 
 twenty-five years' purchase is not sanctioned. 
 
 Dispensing with Consent. On the other hand, 
 if all j)arties are not present, or do not consent, the 
 court may dispense with their consent; (1) where their 
 interests are subsequent to the estate of an infant 
 tenant in tail ; or (2) where, having regard to their 
 number, or their estates, or interests, it considers that 
 an order may be properly made notwithstanding the 
 want of such consent {c) . Or (as is often the case where 
 a party interested cannot be found) it will, either at the 
 hearing or before, order that notice of the ai')plication be 
 inserted in certain newspapers, in a special form given 
 in the schedide to the orders ; in which case any person 
 may, within the time named in the advertisement, or 
 even after by special leave, apply by motion, ex parte or 
 on notice, for leave to be heard on the petition, and if 
 
 (//) Settled Estates Act Orders, {l>) Sect. 11. 
 
 1878, Ords. XV., XVI., XVII. (r) Sects. 25, 28.
 
 THE SETTLED ESTATES ACT, 1877. 207 
 
 such leave bo granted, the order must be forthwith 
 served on the petitioner's solicitor, when he may, 
 on payment of 13.s\ -id., inspect the petition, and also 
 obtain a copy of it on payment of the usual costs {d ). 
 
 The court may also make the order subject to, and so 
 as not to affect, the rights, estate or interest of any per- 
 son where concurrence or consent has been refused, or 
 who has not submitted, or is not deemed to have sub- 
 mitted, his rights and interests to be dealt with by the 
 court, or whose rights, estate or interest, ought in the 
 opinion of the court to be excepted (e) . 
 
 The Order. With regard to the form of the order 
 made on a petition under the act, it must state the names 
 of the petitioners, of the parties who consent, of the per- 
 sons on whom notice has been served, and of the persons 
 who have obtained leave to be heard. It must also state 
 whether any notification has been received from the 
 persons to whom notice has been given, and, if any has 
 been received, the pm-port thereof ; and also the names 
 of the persons with regard to whom notice has been dis- 
 pensed with ; and whether the order is made subject to 
 any and what rights, estate, or interest of any person 
 whose concurrence or consent has been refused, or who 
 may not, or may not be deemed to have submitted his 
 rights or interests to be dealt with by the court, or whose 
 rights or interests ought in the opinion of the court to 
 be excepted (_/'). 
 
 In cases where the court authorizes a lease, the order 
 must also direct that the lease shall contain such con- 
 
 {d) Settled Estates Act Orders, {e) Sect. 29. 
 
 1878, Ords. XVIII., XIX., XX., (/) Settled Estates Act Orders, 
 
 XXI., XXVI., XXVII., LVII. 1878, Ord. XXIV. 
 r. 6.
 
 268 MATTERS RELATING TO SETTLED PROrERTY. 
 
 ditions as are requii-ed by the act, and such other cove- 
 nants, conditions and stipulations, as the court deems 
 expedient with reference to each particular case, or may- 
 direct the same to contain such covenants, conditions 
 and stipulations, as may he approved by the judge at 
 chambers, without directing the lease to be settled by the 
 judge, which is expressly forbidden {g). 
 
 T]ie order must also state whether or not any record 
 or notice of the order is to be made, for preventing fraud 
 or mistake, by indorsing a memorandum of the order 
 on the settlement, or registering a memorial of it in a 
 register county or otherwise (A). The order is drawn 
 up, passed, and entered, in the usual way. 
 
 Payment of Purchase-money. Unless the order 
 specifies to the contrary, the purchase-money received 
 on a sale under the act, and a certain proportion of the 
 rents or payments reserved in any lease of earth, coal, 
 stone or minerals, must be paid into court, ex parte the 
 applicant in the matter of the act, and is to be applied 
 to some of the purposes mentioned in the 34th section 
 of the act ; viz., the redemption of land tax, or incum- 
 brances, the purchase of other lands, or the building of 
 houses on other land comprised in the settlement, or in 
 payment to any person absolutely entitled. Where the 
 order so specifies, the application of the money in 
 manner above indicated, may be made by the trustees 
 without the leave of the court ; but where the money is 
 paid into court, a new petition is necessary, and must 
 be presented by the person who would be entitled to 
 the possession or receipt of the rents and profits of the 
 land if the money had been invested in the purchase of 
 
 ((/) Settled Estates Act Orders, {h) Sect. 33 ; and Settled Estates 
 
 1878, Ord. XXV.; and ss. 14, lo. Act Orders, 1878, Ord. XXIII.
 
 THE SETTI.ED ESTATES ACT, 1877. 269 
 
 land. Where purcliase-money is paid into court in re- 
 spect of a lease for a life, or lives and years, or years 
 only, or for any estate less than the fee simple, or in 
 respect of any reversion dependent on any such lease, or 
 estate, the money may be laid out in such manner as 
 the court may consider will give to the parties interested, 
 the same benefit as they would lawfully have had from 
 the lease, estate or reversion, in respect of which the 
 money in question may have been paid (/). 
 
 The application of the money under this section, is 
 made under an order obtained on the petition of any 
 party interested. 
 
 Money in court, under the act, is invested like cash 
 under the control of the court, and the dividends paid 
 to the person who would be entitled to the rents of the 
 settled estate (/.•). 
 
 Rules and Orders. Before preparing any docu- 
 ment under the act, the practitioner should consult 
 the forms appended to the orders, as those forms must A 
 be followed where applicable (/). However, the orders ' 
 may be dispensed with by the judge in his discretion, 
 whenever he thinks it desirable (;;/). 
 
 Costs. With regard to costs under the act, the 
 court has power to order the costs of all pai-ties to be a 
 charge on the hereditaments the subject of the applica- 
 tion, or on others in the same settlement, and may direct 
 the costs to be varied by sale or mortgage, or out of the 
 rents or profits (>?). 
 
 Leasing of Infants' Estates. In addition to the 
 powers given by the Settled Estates Act, certain powers 
 
 (0 Sect. 37. 1878, Ord. XXVII. 
 
 {k) Sect. 36. (»h) lb. Ord. XXXII. 
 
 (0 Settled Estates Act Orders, («) Sect. 41.
 
 270 MATTERS RELATING TO SETTLED PROPERTY. 
 
 of leasing, and for surrendering and renewing renew- 
 able leases are given to the court in eases of infants and 
 married women, by tlie act 11 Greo. 4 & 1 Will. 4, c. 65. 
 Such powers are exerciseable on summons. 
 
 CHAPTER II. 
 
 THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 
 
 When a railway, a dock, a canal, or a street, or any 
 other public work affecting the lands of more than one 
 landowner has to be carried out, the purchase of all the 
 land required by means of agreement with persons 
 entitled to sell it is impracticable ; because, in the first 
 place, some portion of it is most probably so settled as 
 to prevent the sale of the fee simple, and in the next 
 place, some of the owners would refuse to sell, at least 
 at a reasonable price. Under these circumstances, it 
 was formerly the practice to insert in all acts of parlia- 
 ment authorizing public works, divers powers of com- 
 pulsory purchase ; but, for the sake of convenience, 
 these powers were, in the year 1845, consolidated in 
 one public act, called the Lands Clauses Consolidation 
 Act ; and private acts, passed for the purpose of autho- 
 rizing public undertakings, now merely " incorporate " 
 the Lands Clauses Consolidation Act, and the promoters 
 thereby acquire the powers specified in the latter act. 
 
 So far as the subject of this Work is concerned, it 
 suffices to say — 
 
 (1) That under sect. 01), where vendors, or some of 
 them, are under disability, or liave only a partial 
 or qualified interest, and are not entitled to sell
 
 THE LANDS CLAUSES CONSOLIDATION ACT, 1845, 271 
 
 except under the powers vested in them by the 
 act, the purchase-money is to be assessed in one 
 of several ways pointed out by the act ; and if 
 it exceeds 200/. it must, and if under 200/. but 
 exceeding 20/. it may, be paid into court. In 
 the latter case, however, the promoters have the 
 option of paying it to trustees. 
 
 (2) That under sect. 76, where the owner of any land 
 
 taken, or of any interest therein, on tender of 
 the purchase-money or compensation, refuses to 
 accept it, or fails to make a satisfactory title, or 
 refuses to convey, or is absent from the kingdom, 
 or cannot be found, the purchase-money is paid 
 into court, and the promoters may by deed poll 
 vest the property in themselves. 
 
 (3) That under sect. So, the promoters may enter on 
 
 lands required before the purchase-money has 
 been assessed or agreed on, when such entry is 
 very urgent, upon first paying into court the 
 amount claimed, or the estimated value of the 
 lands computed in a certain way mentioned in 
 the act 30 & 31 Vict. c. 127, s. 36, and giving a 
 bond for payment of the pm'chase-money when 
 it shall be assessed or finally agreed on. 
 The mode of paying money into court in all three 
 cases is by leaving a request for a direction at the pay- 
 office, as explained in the chapter relating to proceedings 
 in that office. Money paid in under sects. 69 or 85 is 
 to be paid to the credit of c.r j^rfc the promoters in the 
 matter of the special act ; that paid in under sect. 76 
 must be paid to the credit of the parties interested, de- 
 scribing them as nearly as the promoters can do so, 
 subject to the control and disposition of the court.
 
 272 MATTERS RELATING TO SETTLED PROPERTY. 
 
 Money paid in under Sect. 69. Money paid 
 in under this section may be applied in any one or 
 more of five several ways, viz. — (1) in tlie purchase or 
 redemption of land tax on land settled to the same uses 
 as the land purchased ; (2) in the discharge of incum- 
 brances on the land pui'chased, or land settled to the same 
 uses ; (3) in the purchase of other lands to be settled to 
 the same uses ; (4) if the money is paid in respect of 
 buildings taken or injuredby the promoters, then it may 
 be applied in removing or replacing such buildings, or 
 substituting others in their stead, in such manner as 
 the court may direct ; or (5) in payment to any party 
 becoming absolutely entitled (o), including trustees with 
 power of sale (^;). And untd the money can be applied 
 for any of the foregoing purposes, it may be temporarily 
 invested in government or real securities, and the divi- 
 dends and interest paid to the person who would have 
 been entitled to the rents and profits of the land sold((7). 
 
 Petition. In order to get the money applied, or to 
 obtain an interim investment of it, a petition must be 
 presented by the person who would have been entitled 
 to the rents and profits of the land sold. This petition 
 
 headed, like other petitions, with the name of the 
 court, division and judge, and is intituled in the matter 
 of the will or settlement in question, and in the matter 
 of the Lands Clauses Consolidation Acts, 1845, 1860 
 and 1869 (where the two latter are applicable), and in 
 the matter of the special act. The petition should state 
 shortly the claimant's title, the special act, and the pur- 
 chase and payment into court by the promoters, and 
 should pray for the order which is desired. 
 
 (o) Sect. G?. {p) Ee Hobson, L. R., 7 Ch. D. 708. 
 
 [q) Sect. 70.
 
 THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 273 
 
 The petition must be served on the promoters and on 
 persons having charges on the lands {r), but not on the 
 remainderman, unless the money was paicTm in respect 
 of an estate less than a fee simple, or unless it seeks 
 permanent re-investment in investments other than 
 lands {r) : nor where payment of a share is asked need 
 the parties entitled to the other shares be served (-s-) . 
 Chargees, however, if not affected by the order asked 
 for, should be tendered two guineas for their costs (/). 
 
 By sect. 74, where money is paid in in respect of an 
 estate less than the whole fee simple, all persons in- 
 terested must be served, and any person interested niai/ 
 petition ; and the court may order that the money be 
 laid out, invested, accumulated and paid in such manner 
 as it may consider will give to the parties interested, the 
 same benefit as they would have lawfully had from the 
 estate sold, or as near thereto as may be. 
 
 Hearing and Evidence. The petition is pre- 
 sented, answered, set down and heard in the usual way, 
 and must be supported by an affidavit of the petitioner 
 verifying his title, and also stating that he is not aware 
 of any right in any other person, or of any claim made 
 by any other person, to the sum mentioned in the peti- 
 tion or any part thereof ; or, if he is aware of any such 
 right or claim, he must state, and refer to, and except 
 the same (u). 
 
 Payment out. With regard to parties absolutely 
 entitled, it must be remembered, that except where the 
 sum is small, it will not be paid out to a tenant in tail 
 
 {)■) Re Browne, 1 De G., M. & {t) Re Gore Langton, L. R., 10 
 
 G. 294 ; Re Leigh, L. R., 6 Ch. Ch. App. 328. 
 App. 887. {„) Cons. OiJ. XXXIV. r. 3. 
 
 (s) MeUing v. Bird, 17 Jur. lo.j. 
 U. T
 
 274 MATTERS KELATIXG TO SETTLED PROPERTY. 
 
 without he executes a disentailing deed (.r), nor to a 
 mamed woman without she is separately examined {>/). 
 
 The Order. The order is drawn up, passed and 
 entered, and the money invested or paid out in the 
 usual way. 
 
 Subsequent Applications. It should be ob- 
 served, that where one application has been made in a 
 matter, all future applications should be made to the 
 same judge (z) ; but where money paid in to two sepa- 
 rate credits is desired to be invested in one purchase, one 
 petition may be presented, intituled in both matters, 
 and if the two funds have been temporarily invested on 
 the order of two different judges, the leave of both 
 judges should be obtained to the setting down of the 
 petition before one of them (a). 
 
 Costs. With regard to costs, the coui't orders the 
 promoters to pay the costs, (1) of the purchase and in- 
 cidental expenses ; (2) of the investment of the money 
 in government or real securities ; (3) of the re-invest- 
 ment thereof in the purchase of other lands ; (4) of 
 obtaining the proper orders in that behalf, and of the 
 orders for payment of the dividends of the interim 
 investments, and of the order for payment of the 
 money out of court, and of all proceedings relating 
 thereto, except such as arise between adverse claimants. 
 The costs of one application only, for the re-investment 
 in land are allowed, except where it appears to the court 
 that it is for the benefit of the parties interested that 
 the money should be re-invested in different sums, and 
 at different times (h). The costs may, of course, be 
 
 {z) Be lieijnohh, L. R., 3 Cb. D. (:) Fa Browne, U W. E. 298. 
 
 CI. {(i) Re Gore Langton, sup. 
 
 (y) Re llaya:, 9 W. R. 7C9. [h) Sects. 80, 81, 82.
 
 TTTE LANDS CLAUSES CONSOLIDATION ACT, 1845. 275 
 
 taxed on petition of course, but th e promoters bear 
 
 the cost of taxation, unless they get one-sixth taken 
 
 oSJcj. 
 
 Payment in under Section 76. Any person 
 claiming to be entitled to money paid in under sect. 70, 
 or to the lands purchased, or to any estate or interest 
 therein, or to any part thereof, may present a petition 
 for the investment or distribution of the money or pay- 
 ment of the di\'idends (d). The court will ascertain the 
 interest of the claimant or claimants, and pay the money 
 or part of it accordingly ; and where the whole abso- 
 lute interest in the land is not claimed by any one, the 
 court will pay the proper proportion of the money due 
 to the claimants for their several interests, and will 
 order the balance to be paid to the promoters {c) . The 
 evidence is, of course, similar to the evidence in peti- 
 tions imder the 69th section ; and in cases of disputed 
 title, the onus of proof rests on the person who was out 
 of possession at the date of the purchase by the pro- 
 moters (/) . 
 
 The costs under this section are the same as those 
 under sect. G9, except that no costs will be allowed 
 where the money has been paid in in const^j^once of the 
 wilful and capricious refusal of the party entitled, to re- 
 ceive it, or to convey or release the land, or in conse- 
 quence of his wilful ncf^^ct to make out a good title (</). 
 Payment in under Section 85. Money paid 
 into court under this section may be invested in bank 
 annuities or government securities, on the petition of 
 
 (f) Sect. 83. (/) Sect. 79. 
 
 {d ) Sect. 78. {ff) Sect. 80 ; and see Ex parte 
 
 [e) Brandon v. Brandon, 2 Dr. Lawson, 17 W. R. 18G. 
 & Sm. 305.
 
 276 MATTERS RELATING TO SETTLED PROPERTY. 
 
 the promoters ; and on tlie bond being performed, will 
 also, on their petition, served on the vendor, be paid out 
 of court to the promoters [Ji). 
 
 If, however, the bond is not performed, the court may, 
 on the petition of the vendor, order the money to be 
 applied in payment of the purchase-money, or otherwise 
 for the benefit of the parties for whose security it was 
 paid in {i). The costs are the same as in the case of 
 money paid in under sect. 69. 
 
 The Artizans and Labourers' Dwellings Acts. 
 Certain sections of the Lands Clauses Acts are incorpo- 
 rated with this act; and in applying it, the Artizans Act is 
 to be considered the special act, and the local authority to 
 be the promoters. It is, however, the practice of some 
 equity draftsmen to intitule petitions, not only in the 
 matters of the settlement, and of the Artizans Act and 
 the Lands Clauses Act, but also in the Local Grovem- 
 ment Provisional Orders Confirmation Act, under which 
 the Artizans Act was in the particular case brought 
 into play. 
 
 (/() Sect. 85. (0 Sect. 87 ; Be Mutlow, 27 W. R. 245.
 
 ( 277 ) 
 
 Sub-division III. 
 Matters relating to Infants. 
 
 Chapter I. — Custody of Infants. 
 Chapter II. — Guardians of Infants. 
 Chapter III. — Marriage of Infants. 
 Chapter IV. — Infants' Property. 
 
 CHAPTER I. 
 
 CUSTODY OF INFANTS. 
 
 By a recent statute (a), provision has been made for 
 giving the court power to settle differences as to the 
 custody of, and access to, infants, as between tlieir 
 mother on the one hand, and their father or legal guar- 
 dian on the other. Formerly, in case of a separation 
 between a husband and wife, and a refusal on the part 
 of the husband to allow the wife to have custody of, or 
 access to, the children, the latter had no remedy ; and a 
 clause in a deed of separation providing that the hus- 
 band should give up the custody and control of the 
 children was considered to be void. 
 
 Under the above act, however, the wife may present 
 a petition to the Chancery Division by her next friend, 
 intituled, in the matter of the infant or infants, and in the 
 matter of *' the Act 30 Vict. c. 12, intituled, ' An Act 
 to amend the Law as to the Custody of Infants,' " 
 
 (rt) 36 Vict. c. 12.
 
 278 MATTERS RELATING TO INFANTS. 
 
 stating the grounds for the application, and praying for 
 access to the children, or that thej may be delivered up 
 to her and remain under her control imtil they attain 
 such age not exceeding sixteen years, as the coiut may 
 direct. 
 
 The order may be made upon such terms as to the 
 father's or guardian's right of access, as the court may 
 think fit. 
 
 The act also provides that a clause in a separation 
 deed, giving the wife the custody and control of the 
 children shall not be invalid ; but the court will not 
 enforce such a clause where it considers that to do so 
 would be detrimental to the child (b). 
 
 The petition is prepared, presented, answered and 
 heard, and the order drawn up, passed, entered and en- 
 forced in the usual way; and the petition should be 
 served on the father or guardian of the infant. 
 
 CHAPTER II. 
 
 GUARDIANS OF INFANTS. 
 
 The Chancery Division is the guardian of all infants 
 who have none other, that is to say, supposing that the 
 court is invoked. 
 
 How Infants are made Wards of Court. An 
 infant may be made a ward of court in several ways ; 
 as, for instance, by a suit regarding his property or 
 person ; although when he has no j)roperty the court 
 
 {b) Sect. 2 ; and see He Besant, order, sec Eo Taylor, L. E.., 4 
 •10 L. T. 409; and for form of Ch. D. 157.
 
 GUARDIANS OF INFANTS. 279 
 
 will not interfere (c). An infant may also bo made a 
 ■ward of court by paying trust money into court under 
 the Trustee Eelicf Act, in which money the infant is 
 interested {d) ; or by an order for maintenance (e). 
 
 Of course the court cannot exercise a personal control 
 over its wards, and consequently it will appoint a 
 guardian of the estate and also of the person of an infant : 
 the same person is usually appointed to both ofReos. 
 
 Mode of applying for Appointment and Re- 
 moval of Guardian. All applications to tho court, 
 concerning the appointment and removal of guardians 
 (whether appointed by the court or otherwise) are made 
 by su mmon s, intituled "In the matter of A. B. an 
 infant." 
 
 This summons must be served on the father, or 
 mother, or testamentary guardian of the infant, and 
 supported by an affidavit of the facts, and of the fitness 
 of the proposed new guardian, and of his wilKngness to 
 accept tho office. The proposed guardian will almost 
 invariably have to give security. 
 
 A guardian of a ward of court, may apply to the 
 court by summons from tune to time with reference to 
 tho management of the infants' property. The office of \ 
 a guardian appointed by the coui't, if holden by two per- 
 sons jointly, ceases on the death of one, or on the mar- 
 riage of a female guardian (/). 
 
 (c) Ec Fi/nn, 2 DeG. & S. 481 ; {<) Sco Chapter IV. of this 
 
 Clayton v. Clark, 3 Dc G. F. & J. Sub -division. 
 682. (/) Biadshaw v. Bradshaic, 1 
 
 id) Re Bernand, IG W. R. 538. Russ. 528; Jones v. Powell, 9 Bea. 
 
 315.
 
 280 MATTERS RELATING TO INFANTS. 
 
 CHAPTEE III. 
 
 MARRIAGE OF WARDS OF COURT. 
 
 Marriage ^ without Consent a Contempt of 
 Court. It is a contempt of court to marry a female 
 ward of court without the consent of the court. 
 
 Consent, how obtained. This consent is ob- 
 tained on summons or by petition, the latter being the 
 proper course where the infant's property is considerable, 
 and it is desired to effect a settlement under the pro- 
 visions of the statute 18 & 19 Vict. c. 43, mentioned in 
 the next chapter. The petition or summons is intituled 
 in the matter of the infant, and (in the case of the peti- 
 tion) states the material facts, namely, the infant's age, 
 the fact of the proposed mairiage, and the name, age, 
 rank, fortune and occupation of the proposed husband ; 
 and prays for an inquiry as to whether the proposed 
 marriage is a proper one, and that if so, proposals for a 
 settlement may be received, and that on the execution of 
 a settlement the marriage may take place. The petition 
 is generally presented by the infant by her next friend, 
 but sometimes by the intended husband, or by both of 
 them, and is presented, answered and set down, in the 
 usual way ; but on being called on it is usually ad- 
 journed at once into chambers, without any order being 
 made in court, and is proceeded on in chambers in the 
 usual way. The petition or summons must of course 
 be supported by affidavit of the facts. 
 
 Preparation of Settlement. If the marriage, 
 and the proposals for a settlement, are approved, the 
 latter is prepared by the solicitor of the ward, and left 
 at chambers, where it is settled in the usual way ; but
 
 MARIUAGE OF WAHDS OF COURT. 281 
 
 evidence of the fitness of the proposed trustees must bo 
 adduced. The settlement being finally approved, the 
 chief clerk sends a minute of the order approving the 
 settlement, and giving the leave of the court to the 
 parties to many on the execution of it, to the registrar, 
 by whom it is drawn up in the usual way. 
 
 Marriage without Consent. If a person man-ies 
 a female ward of court, without consent of the court, 
 he is guilty of contempt even where he did not know of 
 the wardship, and had the consent of the guardian. ^ 
 Any person may move or petition the court, in such a 
 case, for an inquiry as to the validity of the marriage, 
 and for a proper settlement. 
 
 Proceedings under the Marriage Act. Under 
 this act {[/), the marriage of a bachelor or spinster infant 
 requires the consent of its father if living, or if dead, 
 of certain other persons. But if the father be non compoa 
 mentis, or if the other persons be so or be beyond the 
 seas, or unreasonably, or from undue motives, refuse 
 their consent, an application may bo made by petition 
 to the Chancery Division for a declaration that tlio pro- 
 posed marriage is proper, which declaration has the 
 same effect as the required consent. Such a petition is 
 intituled in the matter of the infant, and in tlie matter 
 of the act of parliament, 4 Geo. 4, c. 70, intituled, " An 
 Act for amending the Laws respecting the Solemnization 
 of Marriage in England," and is presented, answered 
 and heard in the usual way, its statements being sup- 
 ported by proper evidence. 
 
 If a valid marriage of an infant, without such consent 
 as is required by the Marriage Act, has been obtained 
 
 iff) 4 Geo. 4, c. 76, ss. 10, 17.
 
 282 MATTERS RELATING TO INFANTS. 
 
 by false or fraudulent means, an action at the suit of 
 the attorney-general, on the relation of the parent or 
 guardian, may he commenced for forfeitiu'e of all the 
 estate accruing to the offending party by reason of the 
 marriage ; and such estate "will be directed to be secured 
 for the benefit of the innocent party, and of the issue of 
 the marriage, or if neither party be innocent, then for the 
 issue only. Such an action must be commenced within 
 one year, and the attorney-general will not sanction 
 such an action unless the circumstances are verified by 
 affidavit of the relator, intituled in the matter of the 
 marriage of the parties, and in the matter of the act. 
 
 — ♦- 
 
 CHAPTER IV. 
 
 infants' PROPERTY. 
 
 As to what a guardian may or may not do in relation 
 to his ward's property, the reader is referred to treatises 
 on equity jmisprudence ; but when it is desirable to 
 apply to the court for directions, the application is 
 made by summons intituled in the matter of the infant. 
 Mode of Applying. Whether the infant is a 
 ward of court or not, a summons may be taken out by 
 the guardian, for the allowance of maintenance out of 
 the income of property belonging to the infant. The 
 summons, if original, is intituled in the matter of the 
 infant ; but if taken out in a pending action, is of 
 course intituled in the action. It must be served on 
 the trustees (if any), or other persons interested in the 
 property, and supported by an affidavit showing the
 
 INFANTS rROPERTY. 283 
 
 necessity for the maintonanee, the means of tlio father, 
 the amount of the infant's property, and proposing a 
 scheme for the application of the desired maintenance. 
 
 Settlement by Infants. An infant is incapable 
 of settling his or her property, except with the aid of 
 the court ; but by 18 & 19 Vict. c. 43, a^male of twenty 
 years, and a female flf seventeen, may upon marriage, 
 with the sanction of the court, make a valid settlement ; 
 except that no power of appointment can be exercised 
 by an infant if the donor has declared an intention to 
 the contrary, and except that a disentailing deed, or a 
 power of appointment executed by the infant imder the 
 act, is void if the infant dies under age. 
 
 The application must be made in all cases by peti- 
 tion {h) of the infant or his or her guardian, intituled in 
 the matter of the infant and of the act. The petition 
 must be served on all persons appearing to be interested in 
 the property, and should set forth the facts, and pray "that 
 a proper settlement of the property may under or by 
 virtue of the said act of parliament be sanctioned by 
 this honorable court, and that your petitioner may bo 
 at liberty upon or in contemplation of the said marriage 
 to execute such settlement." 
 
 If the infant is a ward of court, the application should 
 be joined with the appKcation for leave to marry. 
 
 As in the case of a petition for leave to marry, so a 
 petition to sanction an infant's settlement, is usually at 
 once adjourned into chambers, and proceeded on there 
 in the usual way. 
 
 The evidence in such cases is prescribed by the Hules 
 of 8th August, 1857, r. 20, and must show (1) the age 
 
 (A) Pcareth v. Marriott, W. N. 18GG, p. 48,
 
 2S4 I^IATTERS RELATING TO INFANTS. 
 
 of the infant ; (2) wlietlier tiie infant lias any parents 
 or guardians ; (3) with whom or under whose care the 
 infant is living, and if the infant has no parents or 
 guardians, what near relations he or she has ; (4) the 
 rank of the infant and parents ; (o) the infant's pro- 
 perty ; (6) the age, rank and position of the other 
 party ; (7) such other party's property and income ; 
 (8) the fitness of the proposed trustees and their consent 
 to act. It would seem that the mother of the infant 
 with regard to the first five points, and the other party's 
 father with regard to the residue, should make the affi- 
 davit if possible ; but if not, the ages of the parties must 
 be proved by certificates of birth duly verified (/). 
 
 The proposed settlement being sanctioned, it is pro- 
 posed and settled in chambers, and the order drawn up 
 in the usual way {k). 
 
 (i) Darnell's Ch. Pr. C70. (k) Sup. p. 280.
 
 ( 285 ) 
 
 Sub-division IV. 
 Miscellaneous Matters. 
 
 Chapter I. — ^Idsiinistkation Sumiionses. 
 Chapter II. — Charities. 
 Chapter III. — Married Woiten's Property. 
 Chapter IV. — Vendors and Purchasers. 
 Chapter V. — Solicitors. 
 
 Section 1. — Striking a Solicitor off the Moll. 
 
 Section 2. — Taxing a Solicitor'' s Bill of Costs. 
 
 Section 3. — Solicitor'' s Lien on Property preserved. 
 Chapter VI. — Distringas Notices and Stop Orders. 
 Chapter VII. — Matters not before Specified. 
 
 CHAPTER I. 
 
 ADMINISTRATION SUMMONSES. 
 
 Under the Chancery Procedure Act, 1854, a method 
 was introduced, by which an order for the adminis- 
 tration of the 2^ci'so)uil estate of a deceased person might 
 be obtained in chambers by any person claiming as 
 creditor, legatee or next of kin. The matter is com- 
 menced by an originating summons, intituled in the 
 matter of the deceased person, and between the appli- 
 cant as plaintiff, and the executor or administrator as 
 defendant, and calling on the latter to attend on a day 
 named, at the judge's chambers, to show cause wliy an
 
 286 MISCELLANEOUS MATTERS, 
 
 order for the administration of the personal estate of the 
 deceased should not he made (a). 
 
 When applicable to Real Estate. No order for 
 the administration of real estate can be made on sum- 
 mons, except where all the testator's real estate is de- 
 vised to trustees for sale {b), or although not devised to 
 them where they are empowered to sell it (c), or (which 
 is the same thing), where it is devised subject to payment 
 of debts (d) ; in all of which cases, an order for admi- 
 nistration of the realty may be obtained. In other 
 cases, however, an action must be instituted if adminis- 
 tration of real estate is desired. 
 
 Procedure on Summons. The summons is served 
 like a writ of summons, and the defendant must enter 
 an appearance to it, if he wishes to be heard, and give 
 notice of his appearance {e) ; and, save that there are no 
 pleadings, and no hearing in court, the matter is to all 
 intents and piu-poses governed as to parties, service of 
 order, appointment of guardians ad litem, and so on, by 
 the rules appKcable to actions. 
 
 On the day fixed for the return of the summons, the 
 defendant may attend, and show cause against it, or 
 consent to the order asked for. 
 
 Evidence. It is necessary that on the return of the 
 summons, the plaintiff should prove (1) his title to sue 
 as creditor, legatee, or next of kin ; and (2) that the 
 defendant is the executor or administrator of the deceased ; 
 and, where administration of realty is required, that he 
 is devisee in trust for sale of all the realty, or devisee 
 
 (a) 15 k IG Vict. c. SG, s. 45. {d) Ogden v. Loiiry, 4 W. E. 
 
 \h) lb. sect. 47. 15G. 
 
 (c) Cohmm V. Turnc.', L. T.., 10 [c) Cons. Ord. XXXV. r. 9. 
 Eq. 230.
 
 ADMINISTRATION SUMMONSES. 287 
 
 subject to debts, or donee of a power of sale over the 
 whole of the realty. These facts about the defendant, 
 must be proved by production of the probate, or letters 
 of administration, as the case may be, and notice should 
 be given to the defendant to produce them, and if lie 
 fails to do so, the summons must be adjourned for tlio 
 production of office copies. 
 
 If the order for administration is made, the subse- 
 quent proceedings for taking accounts, and making 
 inquiries, under the order, are had in chambers, in the 
 same way as if the order had been a judgment made in 
 an administration action instituted in the usual way. 
 
 CHAPTER II. 
 
 CHARITIES. 
 
 In this chapter, it is not intended to include any case in 
 which there is a dispute between the persons represent- 
 ing charitable property on the one hand, and some third 
 party who claims that property for himself on the other 
 hand. The following procedui'e only refers to cases in 
 which the adminisfmiion of the charity is concerned. 
 
 Actions by Attorney-General. The most formal 
 method of commencing proceedings for the administra- 
 tion of charitable property, is an action by the attorney- 
 general; and in lieavy and nnportant matters, this 
 course is still adopted. But the questions for decision 
 may be brought before the court in a cheaper and more 
 expeditious way as " a matter," under the provisions of 
 several acts of parliament.
 
 288 MISCELLANEOUS MATTERS. 
 
 Consent of Charity Commissioners. Before 
 any proceeding can be commenced, however, concerning 
 any charity by any one except the attorney-general, he 
 must obtain the order or certificate of the Board of 
 Charity Commissioners authorizing the proceedings (/) : 
 but of course this only relates to the administration of 
 the charity, and not to questions touching its property 
 arising between the charity, and third parties, as, for 
 instance, the getting out of court of funds paid in under 
 the Trustee Eelief Act, or the Lands Clauses Consolida- 
 tion Act (g). 
 
 The Charity Commissioners do not by any means 
 give their certificate, as a matter of course, and the ap- 
 plication for it has to be made to them in a certain form, 
 which can be obtained at their office. 
 
 Romilly's Act. One mode of applying to the 
 coui"t for the administration of any charitable trust, is 
 under the statute 52 Geo. 3, c. 101 (kno-\\Ti as Romilly's 
 Act), which authorizes any two or more persons inte- 
 rested in the charity (//), with the previous sanction of 
 the attorney-general, to obtain relief by petitioning the 
 com't. Such a petition is intituled in the matter of the 
 particular charity, and of the act in question ; it must 
 be signed by the petitioners in the presence of their soli- 
 citor ; and their counsel must certify on it, that it is in 
 his opinion a proper petition to be presented under the 
 act, and the solicitor must also certify on it that the 
 petitioners are capable of paying the costs. The petition 
 is then left with the attorney-general's clerk for his sig- 
 
 (/) 16 & 17 Vict. c. 137, 8S. 17, De G., M. & G. 184. 
 18. (/() lie Bedford CharUies,2Swa.u. 
 
 {(/) Be Poplar Free School, 39 ol8. 
 L. T. 88 ; Be Lister's Hospital, C
 
 CHARITIES. 289 
 
 nature after whicli it is presented, answered and heard 
 in the usual way. 
 
 Romilly's Act is, however, limited in its operation, 
 being confined to plain and simple cases, where the 
 opinion or direction of the court is required (/). 
 
 The Charitable Trusts Act, 1853. By this act, 
 applications relating to any charity, of which the gross 
 annual income exceeds 30/., were authorized to be made 
 by summons, by any person, subject, however, to the cer- 
 tificate of the Charity Commissioners. The summons 
 must (except where it is merely for the appointment of 
 new trustees and a vesting order), be served on the 
 attorney-general, and on all parties affected by the order 
 sought for. The copy served on the attorney-general, 
 should be sealed for service. The judge has a discretion 
 to refuse to proceed on the summons, if he thinks the case 
 would be more fitly dealt mth by an action or petition. 
 
 Applications under this act are not now of frequent 
 occurrence, because by the Charitable Trusts Act, 1860, 
 very large powers were given to the Charity Commis- 
 sioners themselves, authorizing them on the application 
 of parties interested on behalf of a charity, to make such 
 orders as might be made by a judge in chambers, such 
 orders to be subject to an appeal to the Chancery Divi- 
 sion {k) . But the commissioners may decline to exercise 
 their powers, in any case which, by reason of its con- 
 tentious nature, or of any special questions of law or fact 
 involved in it, may seem to them more suitable for the 
 adjudication of the court (/). 
 
 (i) See FhilUpoWs Charity, 8 N. S. 17. 
 Sim. 389 ; Re Manchester Xeic {k) 23 & 24 Vict. c. 13C, s. 8. 
 
 College, 16 Bea. 610; Corporation {I) lb. sect. 5. 
 
 of Ludlow V. Gretuhoiise, 1 Bli., 
 
 IT. U
 
 290 MISCELLANEOUS MATTERS. 
 
 Appeals from Charity Commissioners. With 
 regard to appeals from orders of the coniinissioners, the 
 attorney-general or any person authorized by him, or by 
 the commissioners themselves, and where the gross 
 annual income of the charity (exclusive of lands and 
 buildings actually used by it), exceeds 501., any trustee 
 or person acting in its administration, or any two in- 
 habitants of the parish or district in which it (having 
 such gross income), is specially applicable, may, within 
 three calendar months after the definitive publication of 
 such order, present a petition to the Chancery Division, 
 appealing against it, and praying such relief as the case 
 may requii'e. Any school master or mistress, or other 
 ofiicer, removed by order of the board ^\'ithout the con- 
 currence of the trustees or governors of the charity, or 
 the majority of them, and without the approval of a 
 special visitor (if any) of the charity, may ■svithin two 
 calendar months next after such removal, appeal in like 
 manner; and the court may, if it shall think fit at any 
 stage of the proceedings, require the commissioners' 
 reasons for their order, and may remit the order to them 
 for reconsideration with or without a declaration in 
 relation to it, or may make a substitutive or other 
 order in relation to the matter of the appeal as it shall 
 think just. And the court may also make any order 
 as to the costs of the appeal, and, before hearing or pro- 
 ceeding Avith it, requii'e the appellant (other than the 
 attorney- general) to give security for costs {m). 
 
 No petition of appeal can be presented by any one 
 except the attorney-general before the expiration of 
 twenty-one days after written notice, under the appel- 
 
 (w) 23 & 24 Vict. c. L36, s. 8.
 
 CHARITIES. 291 
 
 lant's hand, of his or her intention to appeal shall have 
 bieen delivered to the commissioners at their office {n). 
 
 The attorney- general, or any person authori^ied by 
 him, or by the commissioners, may appear on such peti- 
 tion as respondent (o), and the court may make any 
 order concerning the costs of such respondent (o). 
 
 Form of Appeal. The petition of appeal is in- 
 tituled in the matter of the particular charity, and in 
 the matter of "The Charitable Trusts Acts, 1853 to 
 1869," and must state the circumstance which gives the 
 appellant a locus standi, the creation and state of the 
 charity, the order appealed against, the publication of 
 notice of the order by the commissioners, the fact that 
 the order has been definitively published, the reasons 
 why the petitioner is aggrieved by the order, and the 
 fact of the twenty- one days' notice having been given 
 of the petitioner's intention to appeal ; and should pray 
 for the discharge or variation of the order, or that it 
 may be remitted for further consideration with a de- 
 claration, or for a specific declaration, and that the costs 
 may be provided for (p) . 
 
 Charities to which Charity Acts apply. The 
 
 charities to which the Charity Acts apply are limited (q), 
 and do not include many cases which are generally 
 looked upon as charitable trusts ; such as the universi- 
 ties and their colleges and halls, Eton and "Winchester 
 colleges, ho)id fide meeting-houses, the British Museum, 
 friendly and benefit societies, savings banks, Queen 
 Anne's Bounty, societies for religious or charitable 
 purposes wholly supported by voluntary contributions, 
 
 («) lb. ed. llo7. 
 
 \o) lb. sect. 9. {q) See IG & 17 Vict. c. 137, 
 
 (/>) See Daniell's Forms, 3rd s. CG. 
 
 u2
 
 292 MISCELLANEOUS MATTERS. 
 
 missionary societies whose funds or property are with- 
 out the jurisdiction, and some others ; but as this does 
 not concern the question of procedure, the reader is 
 referred to works treating of charities, and the Charitable 
 Trusts Acts. 
 
 However, the commissioners may order that the acts 
 shall extend to any such charities, on the application of 
 the trustees or other administrators of the charity (s). 
 
 The subject of charities is too large to be treated of 
 fully in a small work of this kind, which relates merely 
 to the ordinary business of the court, and the reader is 
 therefore refered for further information to Darnell's 
 or Evans's Chancery Practice, and to works treating 
 exclusively of charities. 
 
 CHAPTER III. 
 
 MARRIED women's PROPERTY. 
 
 Under the Married Women's Property Act, 1870 {t), 
 in any question arising between a husband and wife in 
 relation to property which is declared by the act to be 
 the separate property of the wife, either party may 
 apply to the Chancery Division by summons or motion, 
 or to the judge of the county court of the district in 
 which either party resides ; and on such application the 
 judge may make such order, and du-ect such inquiries, 
 and award such costs, as he shall think proper. 
 
 If either party requires it, the judge may hear the 
 application in his private room {f). The application is 
 usually made by simimons intituled in the matter of 
 
 («) 32 &■ 33 Vict. c. 110, s. 4. {r 33 .^- 34 Vict. c. 93. s. 9. 

 
 MARRIED women's rHorKRTY. 293 
 
 "A. 13., the wife of C. B.," and iu the matter of the 
 act, and should be supported by evidence of the facts 
 relied on. 
 
 Life Policies under the Act. Under the same 
 act a married man may cfTcct a policy on his own life 
 for the benefit of his wife, or of her and his children, 
 or any of them. When the sum assured by the policy 
 becomes payable, the court, or the county court judge, 
 will appoint a trustee of the money, whose receipt wUl 
 be a good discharge to the office {ii).'^ 
 
 The application for the trustee should be by peti- 
 tion (r) intituled like the above-mentioned summons, 
 and should ask, not merely for the appointment of 
 the trustee, but, where the policy does not express the 
 respective interests of the wife and children, should 
 ask for directions as to the distribution of the fund, 
 which will in general be made on the lines of the 
 Statute of Distributions, /. c, one-third to the widow, 
 and the residue amongst the children. 
 
 CHAPTER IV. 
 
 VENDORS AND PURCHASERS. 
 
 Under the Vendors and Purchasers Act, 1874 (x), 
 certain questions arising between vendors and pur- 
 chasers may be settled on summons in chambers, with- 
 out the necessity of commencing an action. The 
 summons is entitled " In the matter of a contract for 
 the sale of real [or leasehold] estate, made between 
 John Smith and Thomas Arnold. And in the matter 
 
 (i<) lb. sect. 10. L. R., 6 Ch. D. 127. 
 
 ({■) He McUor's FoUcy Trusts, (.r) .37 & 38 Vict. c. 78, 8. 9.
 
 294 MISCELLANEOUS MATTERS. 
 
 of the Vendors and Purchasers Act, 1874 ;" and states 
 that the summons is an application, that it may be 
 declared that the applicant's contention (stating it 
 shortly) is correct, and that a good title has or has not 
 (as the case may he) been shown in accordance with the 
 particulars and conditions of sale. And that the other 
 party may pay the costs of the application. 
 
 The summons is sers'ed, returned, and heard, or 
 adjourned into court {w), and the order made thereon, 
 or the application dismissed, in the usual way. In 
 one case (.r), decided in January, 1877, Lord Justice 
 James said that the act " was never intended to apply 
 to cases where there were questions of controverted 
 facts. Their lordships could not go into the question 
 as to who was entitled to the land, since the settle- 
 ment of that question would necessitate a perusal of 
 the abstracts of title, and they were not before the 
 court. Any strict point of law or construction arising 
 upon the abstract or upon the purchaser's requisitions, 
 or in respect of the contract, might be properly 
 brought before the comi in a summary way as pro- 
 vided by the act." In a case decided in March of 
 the same year (y), however, his lordship said, "My 
 opinion is, that upon the true construction of this act 
 of parliament, whatever could be done in chambers 
 upon a reference as to title under a decree ic/iere the 
 contract icas estahlislied^ can be done upon proceedings 
 under this act; and that what this act has done is this, 
 it has enabled the parties to dispense with the form of 
 a bni and answer (wTit and judgment), and at once to 
 
 (tt) Be Broicn and Sibley's Con- tract, 25 W. R. 248. 
 tract, L. E,., 3 Ch. D. 156. (y) Burroughs, Lynn and Sexton' s 
 
 {x) Popple and BarratVs Con- Contract, L. E., 5 Ch. D. 601.
 
 VENDORS AND PURCHASERS. 295 
 
 put themselves in chambers in exactly the same position 
 in which they would have been, and with all the rights 
 which they would have had under the old form of 
 decree. The order, therefore, must be varied by en- 
 tering the evidence as read, and omitting the clause 
 relating to its rejection." These two cases would ap- 
 pear to be scarcely reconcileable, but it is apprehended 
 that the latter is the statement which has been since 
 acted upon, and that evidence of controverted facts is 
 now clearly admissible. 
 
 An order under this act must be appealed from within 
 twenty-one days(-). 
 
 CHAPTER V. 
 
 MATTERS RELATING TO SOLICITORS. 
 
 It is not intended to give any account here of the means 
 by which gentlemen are admitted to practise the pro- 
 fession of solicitors. Information in relation to such 
 matters is given in many manuals written for the pur- 
 pose, and forms no part of the practice peculiar to the 
 Chancery Division. 
 
 It is proposed in this work merely to treat shortly of 
 the mode in which a solicitor who has misconducted 
 himself in the practice of his j^rofession can be brought 
 before the court, and punished for his misconduct ; and 
 also to give some account of the manner in which a 
 solicitor's bill of costs may be taxed, and how a solicitor 
 may obtain a lien for his costs upon the subject-matter 
 of his professional labours. 
 
 {z) Re Blyth and Yoioxfs Contract, L. R., 13 Ch. D. 116 ; 28 "W. R. 
 266; 41 L. T., N. S. 746.
 
 296 imiscellaneous matters. 
 
 Section 1. 
 Striking a Solicitor of the Roll. 
 
 Every solicitor is an officer of the Supreme Court of 
 Judicature, and as such is liable to be summarily sus- 
 pended or dismissed from his office for professional mis- 
 conduct. An application for that purpose may be made 
 by the Incorporated Law Society, or by a private indi- 
 vidual who has been injured by the misconduct ; and 
 fourteen days' notice of the application must, together 
 with all affidavits intended to be used, be given and de- 
 livered to the registrar of solicitors, and an affida\'it of 
 such service and delivery must be produced when the 
 appKcation is made {h). The affidavits and notice are 
 intituled, in the matter of the solicitor, thus : " In the 
 matter of Percival Brooks, a solicitor of the Supreme 
 Court of Judicature," and are headed in the usual way, 
 with the name of the court, division and judge. 
 
 Mode of Application. The application is made 
 by ex parte motion, for an order »/•$/, calling on the 
 solicitor to show cause to the contrary on' a day 
 named. If the order is granted, it must be personally 
 served on the solicitor, unless an order for substituted 
 service is obtained. If cause is shown on the day 
 named, the case is then and there determined, and the 
 order niai dismissed, or made absolute, or varied; but if 
 no cause is shown, the applicant subsequently moves 
 ex parte to make the order absolute, on an affidavit of 
 service of the order niai, and production of the regis- 
 trar's certificate that no cause has been shoAvn against 
 it. The court being once set in motion, the applicant 
 
 (/>} 37 k 38 Vict. c. C8, ss. 7, 8.
 
 MATTKRS RKI.ATINfi TO SOl.lcnORS. 297 
 
 cannot by retiring from the case put an end to it, as the 
 registrar of solicitors may attend and ask for the order 
 to be made absolute ; and if made absolute, he may see 
 that it is drawn up and put in force (c). 
 
 Re-admission. A solicitor who has been struck off 
 the roll may apply to be re-admitted, by petition to the 
 Master of the Kolls; but must, six weeks before making 
 the application, give the same notices as if he were ap- 
 plying to be admitted for the first time, and the affi- 
 davits in support must be filed at the Petty Bag Ofiice, 
 together with a copy of them for the use of the registrar 
 of solicitors (d) ; and an affidavit of these regulations 
 having been complied with must be produced on the 
 hearing of the petition {d). The petition is presented 
 at the Petty Bag Office, and must be served on the 
 registrar of solicitors, at least fourteen days before the 
 hearing {d). The order if made, is drawn up, passed 
 and entered in the usual way, and must be filed with 
 the clerk of the Petty Bag (d). 
 
 Section 2. 
 Taxing a Solicitor's Bill of Costs. 
 
 A solicitor's bill ma}^ be taxed, /. c. criticised with a 
 view to its reduction, either by his own client or by a 
 third party who has been ordered to pay the costs of 
 the client ; but, save as is subsequently stated, the pro- 
 cedure is the same in either case. 
 
 The initiatory procedure is different according to the 
 
 (f) lb. sects. 10, 11. {d) Regulations as to Re-ad- 
 
 mission, Nov. 1875.
 
 298 MISCELLANEOUS MATTERS. 
 
 date at which the application is made, and is as 
 follows : — 
 
 (1) If made within one calendar month from the de- 
 
 livery of the bill, it is by petition or motion of 
 course. 
 
 (2) If made after the expiration of that period, but 
 
 within twelve calendar months, it is by ex imrte 
 motion. 
 
 (3) If after that period, or within that period after a 
 
 verdict given, or writ of inquiry issued, for the 
 amount (except payment by a defendant of costs 
 indorsed on a writ {li) ), the application is by 
 summons dul}^ served on the solicitor, and sup- 
 ported by affidavit setting forth the reasons for 
 the application, and will only be granted imder 
 special circumstances; and the applicant will 
 usually have to pay the costs of the applica- 
 tion (/). 
 When the application under the third of the above 
 sets of cii'cumstances is made by a third party, the judge, 
 in considering it, may take into account any special cir- 
 cumstances applicable to the applicant, although not to 
 the client (/.•) ; the solicitor may also be ordered to de- 
 liver a copy of his bill to the third party, on payment 
 of a proper charge for the same. 
 
 All applications for taxation are intituled in the matter 
 of the solicitor in Cjuestion. 
 
 The order for taxation being obtained, the costs are 
 taxed in the usual way, as upon a judgment (/). 
 
 {li) R. S. C, Ord. III. r. 7. and see as to applications by 
 
 ((') Daniell's Foraas, 3rd ed. cestuis que trustent, sect. 39. 
 
 1142; He Hair, 11 Bea. 96. (/) Infra, Division III. Chapter 
 
 (A-) 6 & 7 Vict. c. 73, s. 38; II.
 
 matters reiating to solicitors. 299 
 
 Section 3. 
 
 Obtaining Lien in. favour of a Solicitor. 
 
 Where any property has been recovered or preserved 
 in any action or matter, through the instrumentality of 
 a solicitor, the judge before whom the action or matter 
 is pending, or was heard (/>?), may, on the petition of the 
 solicitor, declare that he is entitled to a charge on the 
 property for his costs and charges (>«). The petition 
 is intituled in the action or matter in question, and also 
 in the matter of the Solicitors Act, 1860, and must be 
 served on the parties interested, and is presented, an- 
 swered and heard, and the order di-awn up, passed and 
 entered in the usual way, and must be supported by 
 affidavit. 
 
 CHAPTER VI. 
 
 DISTRINGAS NOTICES, AND STOP ORDERS. 
 
 The Bank of England, and most public companies, re- 
 fuse to take any notice of trusts or equities, and always 
 permit a transfer of stock standing in theii- registers by 
 the person therein registered as the owner. The court 
 wiU, however, interfere to protect parties equitably 
 entitled by a proceeding called distringas, or by a re- 
 straining order : and where funds are in court it will 
 issue what is known as a stop order to prevent their 
 being paid out. 
 
 Distringas. Up to the year 1880, this process con- 
 sisted of a fictitious writ addressed to the sheriffs of 
 
 (w) Owen V. Henshaw, L. R., 7 L. R., 6 Ch. D. 865. 
 Oh. D. 385 ; Hcnnck v. Sutiwi, («) To & 2t Vict. c. 127, a. 28.
 
 300 MISCELLANEOUS MATTERS. 
 
 London, or of the county where the company carried on 
 business, commanding them to distrain on the Bank of 
 England or other public company (o) to compel them to 
 appear to an action said to have been commenced against 
 them. 
 
 Xo action was, however, in reality commenced, and 
 the "ttTit was never delivered to the sheriffs, and the only 
 effect of it was, that the bank or company could not 
 transfer the stock ■udthout first giving notice to the per- 
 son smng out the distringas. 
 
 The wiit of distringas is now, however, abolished {}}), 
 and the practice made more rational by the substitution 
 of a notice verified by affidavit. 
 
 New Practice. Under the new practice the party 
 desiring to effect a distringas, makes an affidavit in the 
 following form (g) : — 
 
 In the matter of an indentm-e of settlement, dated the 3rd day 
 of May, 1878, and made between John Ball, of the one 
 part, Selina "Williams, of the second part, and Thomas Ball 
 and Arthur Clifford, of the third part, 
 and 
 In the matter of the act of parliament, 5 Vict. c. 5. 
 I, the above-named John Ball, of Xo. 105, High Street, in the city 
 of Exeter, grocer, make oath and say, that according to the best of 
 my knowledge, information and belief, I am beneficially interested in 
 the stock comprised in the settlement above mentioned, which stock, 
 according to the best of my knowledge and belief, now consist of the 
 stock specified in the notice hereto annexed. 
 Sworn, kc. 
 
 This affidavit is filed on behalf of John Ball, whose address for 
 service is 10.5, High Street, Exeter, aforesaid. 
 
 (o) Although 5 Vict. c. 5 only confirm this practice, 
 
 refers to the bank, it has been (;:;) R. S. C, Ord. XLYI. r. 2a 
 
 the practice that a distringas may (1880). 
 
 issue against any public company. (q) Form B. 28, Schcd. R. S. C, 
 
 Seton, 4th ed. 285, and R. S. C, 1880. 
 Ord. XLAT:. r. 3 (1880), seems to
 
 DISTRINGAS NOTICES, AND STOP ORDERS. 301 
 
 To this affidavit a notice in the following form {r) 
 must be annexed : — 
 
 To the London and North Western Railway Company. 
 Take notice, that the stock comprised in and now subject to the 
 trusts of the settlement, referred to in the affidavit to which this notice 
 is annexed, consists of the following, tliat is to say \_hcre specify the 
 stock"]. 
 
 This notice is intended to stop the transfer of the stock only, and not 
 the receipt of dividends [o/-, the receipt of the dividends on the stock, 
 as well as the transfer of the stock]. 
 
 (Signed) John Ball. 
 
 The affidavit and notice are filed at the central office, 
 and an office copy of the affidavit and duplicate of the 
 notice sealed with the seal of the office is procured and 
 served on the company (.s). 
 
 This service has the same effect as the old writ of 
 distringas, for a period of five years {t) ; and that period 
 may be extended from time to time, for further periods 
 of five years at a time, by a notice of renewal signed by 
 the person by whom or on whose behalf the original 
 notice was given. But such notice must be served 
 before the expiration of the five years secured by the 
 last preceding notice, or a new affidavit will be neces- 
 sary {u). 
 
 The affidavit and notice are usually served by being 
 taken to the solicitors for the bank, or to the secretary 
 of the public body, as the case may be, together with 
 the notice. If any application for transfer or paiyment 
 be afterwards made to the bank or other public body, 
 they will not comply with such application for eight 
 
 (/•) Form B. 23, Sched. E. S. C, (*) R. S. C, Ord. XLVI. r. 4. 
 
 1880 ; and R. S. C, Ord. XLVI. (0 lb. r. 7. 
 
 r. 5. {>() lb. r. 8.
 
 302 MISCELLANEOUS MATTERS. 
 
 days, and will at once send notice of it by post to the 
 person who obtained the distringas at the address for 
 service (x). 
 
 These eight days give time to institute an action, in 
 which, if desirable, the bank or other public body may 
 be made co-defendants, and restrained by injunction in 
 the ordinary w^ay ; otherwise, at the expiration of the 
 eight days, the stock will be transfeiTcd, or the dividends 
 paid to the person applying for such transfer or pay- 
 ment (//). 
 
 The person obtaining the distringas, may at any time 
 discharge it by a request in writing, signed by him and 
 sent to the bank or other company ; but if any other 
 person claiming an interest in the stock wishes to dis- 
 charge it, he must apply by motion on notice, or by 
 petition duly served (~). And upon the hearing of such 
 motion or petition, the court may award costs against 
 the person obtaining the distringas, or against the party 
 applying. 
 
 In case of any change in the addi'ess for service the 
 same should be at once notified to the bank or other 
 company by a memorandum to that effect sent in a pre- 
 paid letter (a). So, also, if it is found necessary to cor- 
 rect the description of the stock, this may be effected by 
 filing and serving an amended notice, sealed with the 
 central office seal. The amended notice takes effect 
 only from the day of its service (b). 
 
 Restraining Orders. A restraining order is similar 
 in its effect to a distringas, except that the bank or 
 other public body cannot transfer the stock or pay the 
 
 (x) n. S. C, Orel. XL VI. r. 4. (.-) R. S. C, Ord. XL VI. r. 9. 
 
 (y) Cons. Ord. XXVII. r. 4 ; (a) lb. r. C. 
 
 and R. S. C, Ord. XLVI. r. 10. (i) lb. r. 11.
 
 DISTRINGAS NOTICES, AND STOP ORDERS. 303 
 
 dividends at the expiration of eight days' notice, but 
 are restrained until the order is discharged by a subse- 
 quent order of the court. 
 
 Restraining orders are granted on ex jyarte motion, or 
 ex parte petition, intituled " In the matter of the act of 
 parliament, 5th Vict. c. 5, intituled, ' An Act to make 
 further provisions for the Administration of Justice,' 
 and in the matter of Matthew Brown" (the applicant). 
 The petition (if the application is made in that form) 
 should set forth special grounds to induce the couii to 
 grant the application, and should pray that the bank, 
 or other public company, may be restrained from per- 
 mitting the transfer of the stock in question (describing 
 it), and from paying any dividends due or to become 
 due in respect thereof until further order. 
 
 The application must be supported by an affidavit 
 showing the special circumstances relied on. 
 
 The order, if granted, is drawn up, passed and entered 
 in the usual way, and served on the chief accountant of 
 the bank, or the secretary of any other pubHc body ; 
 and it remains in force until discharged or varied by an 
 order of the court, obtained on motion of any party 
 interested, of which notice must be given to the party 
 who has obtained the order. A person who has obtained 
 a distringas, may also apply for a restraining order. 
 
 Stop Orders. Wherever money, or stock, or se- 
 curities are standing, or are deposited in the name of 
 the paymaster-general, to the credit of an action or 
 matter, and any party entitled to the money or stock 
 or securities, or any of them, assigns or mortgages his 
 interest, the assignee or mortgagee may obtain what is 
 known as "a stop order ;'' the effect of which is to 
 prevent the fund in question being paid or transferred
 
 304 MISCELLANEOUS MATTERS. 
 
 out of court, or otherwise dealt witli, until the stop 
 order is discharged or another order made, directing the 
 fund to be paid or transferred, notwithstanding the stop 
 order. 
 
 Stop orders are obtained on summons, intituled in the 
 action or matter to the credit of which the fund is in 
 coui't, and duly served on the assignor or mortgagor. 
 Evidence in support must be produced, showing the 
 title of the assignor, and (unless admitted) of the as- 
 signee, to the fund. The proceedings in the action 
 usually furnish sufficient evidence of the first, and the 
 assignment or mortgage should be produced and duly 
 verified to prove the second. If a person who has ob- 
 tained a stop order assigns his interest, his assignee may 
 obtain a stop order in the usual way, but he need only 
 produce the original stop order and evidence of the as- 
 signment. On the application for a stop order, the cer- 
 tificate of the paymaster-general that the fund is in 
 court, must also be produced. 
 
 The order, or an office copy of it, must be left at the 
 pay office. 
 
 Notice of any application to deal with the fund, must 
 be served on the party who has obtained a stop order ; 
 and, on the hearing of the application, the order may be 
 discharged, or payment, or transfer out, ordered to the 
 person in whose favour it was made ; or such payment or 
 transfer may be delayed, to enable him to take steps to 
 assert his right.
 
 MATTERS NOT BEFORE SPECIFIED. 305 
 
 CHAPTER VII. 
 
 MATTERS NOT BEFORE SPECIFIED. 
 
 In addition to the several matters before specified there 
 are many of which it would be outside the province of this 
 Work to give a detailed account, but one or two of which 
 will be shortly noticed in tliis chapter. 
 
 Registration of Trade Marks. By the Trade 
 Marks liegistration Acts, 1875 and 1876 (/"), a register 
 of trade marks was instituted, and no action can be 
 commenced for infringement, unless registration of the 
 trade mark in question has been made or refused. 
 
 Any person aggrieved by the wrong entry on the 
 register of the name of some one else, or the omission 
 of his own name as proprietor of a trade mark, or by the 
 registration of a mark not authorized by the act, may 
 apply to rectify the register {g). The subject of trade 
 marks is a special one, forming almost a distinct branch 
 of practice, and the reader is, therefore, referred to books 
 on the subject, and to the rules under the Trade Marks 
 Act, for further information. 
 
 Municipal Corporations. Under the statutes 
 5 & Will. 4, c. 76, s. 71, and 16 & 17 Vict. c. 137, 
 s. 65, the court may on petition appoint new trustees of 
 property held by a municipal corporation for charitable 
 purposes. 
 
 The application is made by petition, intituled in the 
 matter of the charity or charities in question, (shortly 
 describing them.) and in the matter of the act 52 Geo. 3, 
 0. 101, and in the matter of the Municipal Corporations 
 Act, 1835, and of the Charitable Trusts Act, 1853. 
 
 (/) 38 & 39 Vict. e. 91 ; :59 & {<j) Ex part, ■ Stephens, 21 W. K. 
 
 40 Vict. c. 33. 819. 
 
 U. X
 
 306 MISCELLANEOUS MATTERS. 
 
 Production of Cestui que Vie. By the statute 
 6 Anne, c. 18, it was enacted, that where a person is in 
 possession of land for the life of another (called the 
 cesiui que vie), the reversioner, upon affidayit that he has 
 cause to believe that the cestui que ric is dead, may ob- 
 tain an order for his production; and, in defaidt of such 
 production, may enter upon and hold the land. The 
 application under the act is by ex parte motion, founded 
 on an affidavit of the facts, and the order is, in the first 
 instance, for production of the cestui que vie out of court, 
 at a particular place and time named. The order is 
 served on the tenant pur mitre vie. If the production is 
 not made according to the order, a second application 
 must be made ex parte, for the production of the cestui 
 que vie in court, or before commissioners, and must be 
 supported by an affidavit of the service of the first order, 
 and non-production at the time and place named in it. 
 The second order is served on the tenant pur autre 
 vie personally. Sometimes this second order provides 
 that in default of production the cestui que vie shall be 
 presumed to be dead ; but if it does not, then a third 
 application is necessary for that purpose. Where the 
 tenant for life or cest^^i que vie is abroad the party pre- 
 senting the order may apply to send over commissioners 
 appointed by the order to view such person. The return 
 of the commissioners is filed at the Petty Bag Office. 
 If it appears to the court on affidavit or othervsdse, that 
 the person ordered to produce the cestui que vie cannot do 
 so, from no fault of his own, and that the cestui que vie 
 is in fact alive, no order for production will be made. 
 
 Mortgage Debenture Acts. Under the statutes 
 28 & 29 Vict. c. 78, and 33 & 34 Vict. c. 20, a mortgagor 
 of a registered security may, upon default by the com-
 
 MATTERS NOT BEFORE SPECIFIED. ^507 
 
 pany in doing- so, apply by summons for an order for 
 tlie discharge of the security in the company's register, 
 and a holder of a mortgage debentui'e may, upon de- 
 fault in payment of principal or interest, apply by sum- 
 mons or petition for the appointment of a receiver. 
 Proceedings under these acts are intituled in the matter 
 of the particular company, and in the matter of " Tlie 
 Mortgage Debenture Acts, 18G0 and 1867" (A). 
 
 Executors and Administrators' Accounts. 
 By the 19th section of the statutes 13 & 14 Vict. c. -35, 
 and the 23 & 24 Vict. c. 38, s. 14, executors or admi- 
 nistrators are enabled immediately, or at any time, after 
 probate or grant of administration, to obtain an order 
 to have an account taken in chambers of the debts and 
 liabilities affecting the personal estate of the deceased. 
 The order may be obtained either on ex jjcoie summons, 
 or on motion or petition of com-se, intituled " In the 
 matter of the estate of the deceased" (describing him). 
 On the order being made, a summons to proceed is 
 taken out, and the account taken in the usual way. 
 The account may be ordered to be taken in a district 
 registry. 
 
 Sales of Ships or Shares therein under the 
 Merchant Shipping Acts. Under these acts a 
 ship or a share therein, vested by transmission in an 
 unqualified owner, may be ordered to be sold. The 
 application is by petition, intituled in the matter of the 
 particular ship, and of the Merchant Shipping Act, 
 1854, and it must be duly served. 
 
 Protectorship by the Court of certain Set- 
 tlements. Under the statute 3 & 4 Will. 4, c. 74, 
 
 (//) Sec Danidl's Forme, 3i-d cd. 1232. 
 
 x2
 
 308 MISCELLANEOUS MATTERS. 
 
 the Chancery Division becomes in certain cases pro- 
 tector of settlements. "When this is the case, and it is 
 desired to bar the entail, the leave of the court be- 
 comes necessary, and this may be obtained on petition 
 of the tenant in tail, intituled in the matter of the 
 person who would be protector if it were not for some 
 disability vesting his office in the Court, and in the 
 matter of the above act. This petition should be served 
 on all persons interested in remainder. 
 
 Registration of Titles Act. By the statute 
 2'j & 26 Vict. c. 53, a land registry was constituted, 
 with a staff of officers, whose duty it is to investigate 
 titles submitted to them for registration as indefeasible, 
 and any question or dispute which may arise in the 
 process of registration may be referred to a judge of 
 the Chancery Division. Under another part of the act, 
 the Chancery Division is empowered, upon the applica- 
 tion of any person empowered by the act to apply for 
 registration of title, to carry out sales of land with an 
 indefeasible title. 
 
 The application is made by petition or summons, 
 intituled in the matter of the party applying, and in 
 the matter of the act. The sale, if ordered to be carried 
 out under the act, is effectuated by a vesting order. 
 Such applications, however, are very rare. 
 
 Declaration of Titles Act. Under the statute 
 25 & 2G Vict. c. 67, any person claiming to be entitled 
 to freeholds in possession in fee, or to have a power of 
 disposing of the fee, or any person entitled to apply for 
 the registration of an indefeasible title under the act for 
 registration of titles, may apply to the court by petition, 
 for a declaration that the petitioner has an indefeasible 
 title to the hereditaments in question.
 
 MATTERS NOT BEFORE SPECIFIED. 30!) 
 
 The petition is intituled in the matter of the party- 
 applying, and in the matter of " The Declaration of 
 Title Act, 1862." On the hearing of the petition, the 
 court, if satisfied that the petitioner has proved such a 
 possession, and has stated sueh a title as, if established, 
 would entitle him to a declaration under the act, will 
 make an order for the investigation of the petitioner's 
 title in chambers, in the same way as if ho liad obtained, 
 as vendor, an order for specific performance of an agree- 
 ment for sale of the land in question (/). 
 
 The proceedings are thereupon taken in chambers on 
 a summons to proceed in the usual way. 
 
 However, as proceedings under the act are of very 
 rare occurrence, owing to the great expense and trouble 
 involved in the investigation, the reader is referred for 
 further information to Daniell's Chancery Practice, 
 \\here the subject is fully treated of. 
 
 (0 25 & 2.5 Vict. c. G7, s. 6.
 
 Division III. 
 
 OF PEOCEEDINGS COMMON TO ACTIONS 
 AND MATTEES.
 
 SuB-Div. I. — Taxation of Costs. 
 
 II. — ExFOECixG Judgments and Oedees. 
 Ill, — Appeal. 
 IV. — MiscELLAXEoi's Eegulations eelating TO Peoceduee.
 
 ( 313 ) 
 
 Sl'jj-divlsion I. 
 
 Taxation of Costs. 
 
 It is outside the object of tins work, to treat of the 
 principles which govern the court in awarding the costs 
 of actions and matters, but when the order has awarded 
 those costs, a further proceeding becomes necessary in 
 order that the amount of them may be determined. 
 
 This proceeding is called " taxation," and costs are 
 either taxed as between " party and party," or as be- 
 tween *' solicitor and client ;" the latter being taxed far 
 more liberally for the solicitor than the former,_ in which 
 no costs are allowed except such as were strictly neces^ 
 sary. "Wlicnever a party to an action is ordered to pay 
 the costs of another party without more being said, such 
 "costs are deemed to be costs between party and pa rty, j 
 
 Higher and Lower Scale. There are two scales 
 of costs, one called the lower scale and the other the 
 higher scale, and solicitors are entitled to charge and be 
 allowed their fees according to one scale or the other, 
 under certain rules set forth in Ord. VI. of the 11. S. C. 
 (Costs) of the 12th August, 1875, in which the different 
 items under both scales are set out in detail, and to 
 which the reader is referred ; but the court or a judge 
 ma}', in any cause, direct the fees in either scale to bo 
 allowed to all, or cither, or any of the parties, and as to 
 all or any part of the costs, notwithstanding the rule in 
 question (a). 
 
 (r,) R. S. C. (Costs), 187'>, Old. VI. r. .i. And set- infra, Sub-div. IV.
 
 314 TAXATION OF COSTS. 
 
 Procedure. Assuming, then, that a bill of costs 
 has to be taxed before it is paid, the solicitor of the 
 party claiming payment of the costs causes a fair copy 
 of the bill to be made on foolscap paper bookwise, with 
 a space or margin on the left-hand side for the purpose 
 of noting any deductions which may be made on the 
 taxation. This copy, together "with a copy of the judg- 
 ment or order under which the costs are to be taxed, 
 also written or printed on similar paper, bearing in the 
 margin a certificate of the solicitor that it is a true copy 
 of the judgment or order as passed and entered, is taken 
 to the office of the taxing master who has taxed any 
 previous costs in the same action or matter ; or if there 
 have been no costs previously taxed, the solicitor makes 
 a certificate of the fact in the margins both of the 
 on'fjinal judgment or order and of the copy, and takes 
 them and the bill to the office of the sitting taxing 
 master, who will insert the name of the taxing master 
 on the rota in a certificate in the margin of the ori(ji)ial 
 judgment or order, which certificate should be prepared 
 in blank by the solicitor. This certificate is then copied 
 on the copy judgment or order, and the latter, and also 
 the bill, left with the clerk of the taxing master to 
 whom it is referred, mth all vouchers and papers in 
 respect of which charges are made in the bill. At the 
 same time a warrant to proceed, mth an appointment 
 for that purpose, is obtained from the clerk, and must 
 be duly served on the parties interested in the taxation. 
 
 The parties served may, on undertaking to pay proper 
 costs therefor, require and, on paying such costs, obtain 
 from the solicitor, wdthin forty-eight hours after demand 
 (unless the time is extended by the court), copies of the 
 bill, so written as to correspond page for page with the
 
 TAXATION OF COSTS. 315 
 
 copy left with the master (/j). The charge is {(/. per 
 folio, or in causes in fonnd jHiiipcris l^d. per folio (c). 
 The folios in the copies should be numbered in the 
 margin, and the copies should be properly and legibly 
 written, and indorsed with the name and address of the 
 solicitor or party {d). 
 
 If a solicitor refuses or neglects to comply with a 
 request for a copy of the bill, the copy may be obtained 
 from the master's chambers ; and in that case, not only 
 will the solicitor be disentitled to the costs of such cop}'', 
 but an additional two clear days will be added to the 
 period which must elapse before any further proceeding 
 can be taken (e). 
 
 In order to relieve the master of frivolous points, the \ 
 bill is generally first gone through by his clerk in the 
 presence of the parties ; and then any points which are , 
 intended to be contested are reserved for an adjom-ncd I 
 appointment before the master himself. The master 
 will require evidence that the business charged for has 
 actually been done, that it was reasonably necessary 
 that it should be done, and that the amount charged is 
 reasonable. The papers in the action or matter are 
 usually the evidence that the work has actually been 
 done, and one docimient will often prove several dis- 
 tinct items ; for instance, the o rder or judgment proves__ 
 the steps nec gssary to get it passed and entered (./'). 
 
 Where a party entitled to appear on the taxation 
 does not do so, an affidavit of service of the warrant 
 must be indorsed on the original wan'ant, and sworn 
 before the master. 
 
 (b) Cons. Ord. XXXVI. it. 4, (d) Cons. Ord. XXXVI. it. 8, 
 
 5,6,7,8. 11. 
 
 (r) Cons. Ord. IV. it. 1, 2, 3. (0 lb. rr. 12, IG. 
 
 (/) Himter'.'j Suit, 204.
 
 316 TAXATION OF COSTS. 
 
 With regard to what costs are allowed on taxation, 
 and what between solicitor and client, and what between 
 party and party, such questions are matters of law and 
 not of procedure, and the reader is referred to Messrs. 
 Morgan and Davey's learned treatise on Costs, where 
 all such points are carefully discussed and elucidated. 
 
 In going through the bill, if the master considers 
 that any item ought to be struck out or reduced, he 
 enters the deduction in the margin. These deductions 
 being added up, are finally deducted from the total 
 amount of the original bill, and if a client is taxing his 
 own solicitor's bill, and the bill has been reduced by 
 more than one-sixth, the solicitor will have to bear the 
 costs of the taxation. 
 
 The master signs the bill when taxed ; and if it is 
 desired to issue execution for the costs, his certificate 
 must be obtained and filed, and an ofiice copy produced 
 on the sealing of the writ of execution. 
 
 Review. If any party be dissatisfied with the 
 decision of the master, he should, before the certificate 
 is signed, deliver his objection in writing to the otheF 
 party, specifying the item or items to which ho objects, 
 but not giving the reasons for his objection {(j), and 
 should apply to the master for a warrant to review the 
 taxation (//) ; and thus any such objections are brought 
 a second time before the master, who may allow further 
 evidence, and will state the grounds of his decision and 
 any special circumstances either in the certificate or 
 otherwise (/). If dissatisfied with this review by the 
 master, any party may apply for a summons of review 
 
 {(j) Simmons \. Storer, L. R., lowanccs and general provisions), 
 14 Ch. D. 154. r. 30. 
 
 {h) R. S. C, Costs (special al- (/) lb. r. 31.
 
 TAXATION OF COSTS. '317 
 
 before the judge in chambers, on the hearing of which 
 no other evidence can in general be used than what was 
 produced before the master (/.■). 
 
 The certificate of the master, however, is conclusive 
 ,as to items not objected to (/). 
 
 Payment of Costs. If the costs are payable out 
 of a fmid in court, a cheque for the amount will be 
 drawn up at the Pay Office on the production of the 
 judgment or order and the taxing master's certificate; 
 but otherwise the payment, if not made, must be en- 
 forced by execution in some of the modes stated in 
 Sub-division II. of this Part. 
 
 District Registry. Where an action is com- 
 menced and proceeds in a district registry, the costs 
 are calculated and allowed as if it had been a London 
 ease {di) ; and where judgment is entered in the district 
 registry, the costs are to be taxed there, unless the court 
 or judge orders to the contrary; but such order will 
 always be made except in simple cases («) . 
 
 (/.) lb. r. 33. («) R. S. C, Orel. XXXV. r. 3 ; 
 
 (l) lb. r. 32. Da;/ v. WhitaJcer, L. R., G Ch. D. 
 
 (w) lb. r. 34. 734.
 
 ( 318 ) 
 
 Sub-division II. 
 Enforcing Judgments and Orders. 
 
 Chapter I. — Inteoductort. 
 
 Chatter II. — Enforcing Jitdgmexts and Orders ey Writs of Exe- 
 cution. 
 Section 1.- — Of Writs of Execution (/cneraUij. 
 Section 2. — The different kinds of Writs of Execution. 
 StTBSEC. 1. — Writ of Attachment. 
 2. — Writ of Sequestration. 
 3. — Writ of Possess ion. 
 4. — Writ of Delivery. 
 0. — Writ of Fieri Facias. 
 &.— Writ of Elegit. 
 
 Chapter III. — Enforcing Judgments and Orders otherwise than 
 BY "Writs op Execution. 
 Section 1. — Attachment of Debts. 
 Section 2. — Charging Orders. 
 Section 3. — Committal. 
 Section 4. — Vesting Orders. 
 
 CHAPTEE I. 
 
 INTRODUCTORY. 
 
 At one time, tlie old Court of Chancery had no means 
 of enforcing its decrees, except by "process of con- 
 tempt " ; /. c, by imprisonment and sequestration. Its 
 powers, however, were from time to time extended, and 
 although imprisonment and sequestration may be con- 
 sidered to be the most appropriate method of enforcing 
 obedience to judgments and orders in the Chancery 
 Division, yet there are clivers other methods which re- 
 quire to be shortly noticed.
 
 INTRODUCTORY. 319 
 
 The court, then, possesses tlio following weapons for 
 enforcing its authority, viz. : — 
 
 1. Writs of execution, viz. : — 
 
 (A.) For enforcing judgments and orders in all 
 cases except the payment of money. 
 
 (1) Writ of attachment. 
 
 (2) AVrit of sequestration. 
 
 (B.) For enforcing judgment of actual delivery of 
 property. 
 
 (3) Writ of possession with regard to lands. 
 
 (4) Writ of delivery with regard to lands. 
 (C.) For enforcing judgment for the payment of 
 
 money. 
 
 (0) Writ oi fieri facias. 
 (6) Writ oickgif. 
 
 2. Execution of judgments otherwise than by wi'it, 
 
 viz. : — 
 
 (1) Orders attaching debts due to a judgment 
 
 debtor. 
 
 (2) Orders charging stock or shares held by a 
 
 judgment debtor. 
 
 (3) Order of committal to prison. 
 
 (4) Vesting orders transferring the ic(/al estate 
 
 in property from a person ordered to 
 convey the same and who refuses to 
 obey that order. 
 
 CHAPTER II. 
 
 ENFORCING JUDGMENTS AND ORDERS HY "WRITS OK 
 EXECUTION. 
 
 Before examining each particular kind of writ of exe- 
 cution it is desirable that we should first consider the
 
 320 ENFORCING JUDGMENTS AND ORDERS. 
 
 practice relating to all wi'its of execution indiscrimi- 
 nately, and then we can afterwards consider the nature 
 of, and practice peculiar to, each particular kind of VtTit. 
 
 Section 1. 
 Writs of Execution gencraUij. 
 
 How prepared and issued. All writs of execu- 
 tion are prepared by the party prosecuting them, and, 
 like wTits of summons, are issued by being sealed by the 
 master of the Supreme Court, or the district registrar («), 
 as the case may be. 
 
 No writ of execution will be issued without the pro- 
 duction to the sealing officer, of the judgment or order, 
 or an office copy thereof, showing the date of entry; 
 and the officer must satisfy himself that the proper time 
 has elapsed, to entitle the applicant to have execution (Ji). 
 The applicant must also file a prcecipe or request on a 
 slip of paper in the following form : — 
 
 1880. S. No. 100. 
 In the High Court of Justice. 
 Chancery Division. 
 V.-C. Hall. 
 
 Between John Smith Plaintiff, 
 
 and 
 William Jones .... Defendant. 
 Seal a writ of feri facias directed to the sheriff of Devonshire to 
 levy against William Jones the sura of 100/., and interest thereon at 
 the rate of bl. per centum per annum, from the day of , 
 
 1880, and 20/. costs. 
 Judgment dated the 20th day of January, 1881. 
 
 George Robinson, 
 Solicitor for the Plaintiff. 
 
 («) R. S. C, Ord. XXXy. r. 3. (i) E. S. C, Ord. XLII. r. 9.
 
 AVUnS OF EXECUTION. 331 
 
 Writs of execution, like writs of summons, may be 
 obtained jjrinted in blank at the law stationers ; and 
 such a fi)rni, appropriately filled in, must be taken, witli 
 the prwvipo and judgment, and the taxing master's cer- 
 tificate for costs (if they are to be included in the writ), 
 to the central ofiice or district registry, where it will be 
 sealed, and the pnvcipe filed (c). 
 
 The writ must be indorsed with the name and place 
 of abode, or office of business, of the solicitor suing out 
 the same ; and, also, if he is acting as agent, the name 
 and similar address of his principal, or where no solicitor 
 is employed, then with a memorandum expressing that 
 it lias been sued out by the plaintiff' or defendant in 
 person, and mentioning the city, town, or parish, and also 
 the name of the hamlet, street, and number of the house 
 of such plaintiff's or defendant's residence, if any such 
 there be (</). The writ must also bear date the day of 
 its issue (e). 
 
 Writs of execution are tested like writs of smn- 
 mons(/). 
 
 Against whom a Writ may be sued out. 
 AVrits of execution are not confined to the parties to the 
 action, but may be sued out by, or against, any person, 
 whether a party or not, in whose favour, or against 
 AN-hom, any order is made {g). 
 
 Costs. A party is not bound to include his costs in 
 the writ by which he seeks lo enforce the rest of the 
 judgment, but may issue separate writs for the costs, 
 and the rest of the judgment, even if the latter is for 
 the recovery of money only; but the writ for costs 
 
 {c) lb. r. 10. (/) lb. Ord. II. r. S. 
 
 (rf) lb. r. 11. {<j) Ord. XLII. r. 21. 
 {e) lb. r. 12. 
 V. Y
 
 322 EXFOUCING JUDGMENTS A"N]) ORDERS. 
 
 cannot be sued out less than eight days after the first 
 
 ,writ(/0. 
 
 Applicable to Orders as well as Judgments. 
 
 Writs of execution are not confined to the enforcement 
 of judgments only, but are applicable for enforcing 
 every order of the court or a judge, whether in an action, 
 cause or matter (/) . 
 
 Where Leave required. As between the original 
 parties to an action, execution may be issued at any 
 time within six years from the recovery of the judg- 
 ment (A") ; but where that period has elapsed, or any 
 change has taken place by death or otherwise in the 
 parties entitled, or liable, to execution, application for 
 "leave to issue execution must be made to a judge or to 
 the district registrar by summons, and on such appli- 
 cation, leave may be granted or refused, or any question 
 or issue necessary to determine the rights of the parties 
 may be ordered to be tried, and terms as to costs or 
 otherwise may be imposed (/) ; and the same remark 
 applies to cases where judgment has been had against a 
 firm in the firm's name, and it does not appear on the 
 record that an alleged partner is in fact one (m). 
 
 Leave must also be obtained where the judgment is 
 to take effect only on the happening of a condition or 
 contingency (»). 
 
 Where a i^arty desires to appeal from a judgment, he 
 should apply to the court from whose decision he de- 
 sires to appeal (o), to stay execution pending the ap- 
 jieal. The court or a judge may grant this at the time 
 
 {/i) K. S. C, Ord.XLII. r. 15a. («) lb. r. 7. 
 
 {i} lb. r. 20. (o) R. S. C, Ord. LVIII. r. 17; 
 
 [k) lb. r. 18. Att.-Goi. v. Swansea Co., L. R., 
 
 (/) lb. r. 19; and Ord. XXXV. 9 CIi. D. 46 ; GodJard v. Thomp- 
 
 r. 3a. son, 38 L. T. 166. 
 [ni) lb. r. 8.
 
 WRITS OF EXECUTION. 32'{ 
 
 of giving judgment, or afterwards on motion, of which 
 due notice must be given (;;) . 
 
 A Avrit of execution remains in force for one year 
 onljj but may be renewed for an additional six months J 
 by leave obtained on summons (</) . 
 
 Lastly, it need scarcely be said, that a writ of execu- 
 tion, obtained irregularly or wrongly, will be sot aside 
 on motion or summons supported by affidavit. 
 
 Section 2. 
 
 TliP (Vrfferoni kinds of Writs nf Execntioii. 
 
 Having now considered the general principles applic- 
 able to all writs of execution, let us examine them in 
 detail. 
 
 SuHSEC. 1. — The Writ of Attachment. 
 
 Where applicable. The writ of attacliraent can- 
 not now be issued for enforcing mere money claims (r), 
 even where they consist of costs (.s), but is available in 
 all other cases where a party refuses or neglects to do 
 or to omit to do some act which he is ordered to do or 
 omit by a judgment or order, including disobedience in 
 refusing to deliver up real or personal property {t). 
 
 Leave required in all Cases. As, however, 
 attachment means the imprisonment of the party pro- 
 ceeded against, it is not left to the discretion of the 
 suitor, like the writs of Jicri facias, elegit and possession, 
 but can only be issued by special leave of the court or 
 
 (;;) R. S. C, Ord. LVIII. r. {Earl) v. liaructt, L. R., 6 Ch. D. 
 
 16; JtepuhUc of PiruY. lf'e;/i'ctiii, 2o'2. 
 
 24 W. R. 297. (••') Jackson v. Manhij, L. R., 1 
 
 (q) R.S.C.,Ord.XLII.ir.l(3,17. Ch. D. 80. 
 
 (>•) Phosphate Seu-age Co. v. (/) R. S. C, Ord. XLII. r. 4 ; 
 
 Hartmont, 25 W. R. 743 ; Lnccs and Ord. XHV. r. 1. 
 
 y2
 
 324 ENFORCING JUDGMENTS AND ORDERS. 
 
 judge or district registrar (?<), the granting of whicli is 
 quite discretionary (r) . 
 
 Service of Judgment or Order. The first step 
 towards getting an attachment, is to serve the party- 
 implicated, with a copy of the judgment or order, in- 
 dorsed with a notice to the effect, that if he neglects to 
 obey the judgment or order by the time named therein 
 (where he is ordered to do something), he will be liable 
 to have his property sequestrated, and himself arrested 
 and committed to prison (.r). 
 
 The ser-vice of the copy judgment or order must be 
 made personaUy ; but where personal service cannot be 
 made, the comi will, on ex parte motion (in case of a 
 judgment), or a summons (in case of an order in cham- 
 bers), order substituted service ; but the application 
 must be supported by affidavit, stating what efforts have 
 been made to effect personal service, and also the mode 
 of substituted service suggested by the applicant (?/). 
 
 Where personal service is made, it is effected b}' 
 giving to the person intended to be served, a true copy 
 of the judgment or order, and at the same time showing 
 to him the original, or an office copy, sealed with the 
 report ofiice seal, and signed by a master of the Su- 
 preme Court. 
 
 Time for applying for an Attachment. When 
 
 the judgment orders an act to be done, no further step 
 can be taken, until the expiration of the time within 
 which it is ordered to be done ; but when an act is 
 ordered to be omitted, steps for enforcing it may be 
 taken immediately that the party ordered to desist does 
 any act in contravention of the order. 
 
 («) R. S. C, Ord. XLIV. r. 2; 5 Ch. D. 943. 
 and Ord. XXXV. r. 3u. (.() C'ouh. Ord. XXIII. r. 10. 
 
 (r) Ashuortli v. Out ram, L. R.. (//) See Danioll's Cli. Pr. 900.
 
 WRITS OF EXECUTION. '}2o 
 
 Motion for Attachment. Supposing tliat tlio 
 party served with the judgment or order disobeys it, 
 the next step is to serve him, or his solicitor (s), with 
 notice of motion, or with a summons, for a -writ of 
 attachment (r/), and for the costs occasioned by the ap- 
 plication (i). It is sufficient to leave the notice at the 
 residence of the party affected (c). The motion or 
 summons is brought on in the usual way, and must be 
 supported by an affidavit, showing — (1) service of the 
 judgment or order ; (2) default in obedience to it ; and 
 (8) service of the notice of motion or summons. 
 
 The Writ. If tlie court grants the application, the 
 part}' appljdng prepares a writ of attachment on judi- 
 cature paper in the following form : — 
 
 1881. S. No. 100. 
 In the High Court of Justice. 
 Chancery Division. 
 V. -C.Hall. 
 
 Between John Sniitli .... Plaiutiff, 
 and 
 Peter Jones .... Defendant. 
 Victoria, &c. 
 
 To the sheriff of Staffordshire, greeting. 
 "We command you to attach A. B. so as to have him before us in 
 our High Court of Justice, Chancery Division, immediately after the 
 receipt of this writ, wheresoever the said court shall then be, there to 
 answer to us, as well touching a contempt which he as is .alleged has 
 committed against us, as also such other matters as shall be then and 
 there laid to his charge ; and further to pcrfonu and abide such order, 
 as our said court shall make in this behalf ; and hereof fail not, and 
 bring this writ with you. 
 
 AV^itness, Roundell Baron Sclbomc, Loi-d High Chancellor of Great 
 Britain, the day of 1881. 
 
 (r) Biuun'oig v. Sab'ni, L. R., 5 [b) See Abiul v. liichcs, L. R., 
 
 Ch. D. 511. 2 Ch. D. 528. 
 
 (^j R . S. C, Ord. XLIV. r. 2. [r) In re a Solirlfui; L. R.. H 
 
 Ch. D. l.VJ.
 
 326 EXFORCING JUDGMENTS AND ORDERS. 
 
 The writ thus prepared, is taken to the registrar's office, 
 together with two " prcBcipes^^ in the form indicated in 
 subsection 1. One of these prcecipcs is filed in the re- 
 gistrar's office, and the other is marked by the entering 
 clerk there, after which the writ and the marked 
 pnecipe are taken to the central office or district re- 
 gistry and filed there, and the writ is then sealed by 
 the master of the Supreme Court or registrar, and by 
 that means issued. The writ thus issued is sent to the 
 under-sheriff, by whom it is executed. 
 
 Return of the "Writ. Where a day is named in 
 the writ for its retui-n, the sheriff must, on pain of 
 contempt, return it on that day ; and where no time is 
 named, he should return it in a reasonable time. The 
 return consists in giving back the -s^Tit to the solicitor 
 of the party suing it out, "snth an indorsement, signed 
 by or on behalf of the sheriff, stating the result of his 
 action in the matter. 
 
 If successful, the return is what is technically called 
 ^'j£pi corpus," and if unsuccessful, ^^non est inventus." 
 
 Duties of Sheriff. Contempt is, it would seem, 
 no longer bailable, and the sheriff has no right to bail 
 the person arrested ; and if he does so, an ew parte motion 
 should be made that the tipstaff of the court arrest the 
 person bailed. 
 
 The ordinary com-se is for the sheriff to arrest the 
 party, and lodge him in gaol, where he may be left 
 until he " pui'ges his contempt," by doing the act re- 
 quired of him, or promising to omit to do that which 
 the order has restrained him from doing (d). 
 
 Non est inventus. "Where a return of non est 
 inventus is made, and the prosecuting party does not 
 
 (d) Dauiell's Ch. Pr. <JOS.
 
 wiins OK Kxpuuriox. 327 
 
 know ill what place the offender is to be found, the next 
 step is to move c.r parte, that the serjeant-at-arms do 
 arrest him ; which will be granted on the production of 
 the writ, and the return thereto. Tlie registrar draws 
 lip the order, and delivers it to the proper officer, who 
 an-ests the offender, and (unless he is already in prison) 
 brings him before the coiu^t, whenc(3 he is committed to 
 prison. If, however, he is already in prison, the ser- 
 jeant-at-arms leaves the order for his arrest with the 
 gaoler, who thereupon detains him in the prison in 
 which he then is. A person against whom a serjeant- 
 at-arms has been ordered, cannot escape arrest, even by 
 consent of the prosecuting part}^ until the fees of the 
 serjeant-at-arms are certified by him to have been duly 
 paid {e). 
 
 Discharge. When a person in custody under an 
 attachment desires to be discharged, he must apply to 
 the court for his discharge, which is done by " petition 
 of course" where his compliance with the order can be 
 certified by an officer of the court, and by motion (for 
 which due notice must be given to the other side) 
 founded on affidavit (or consent) in all other cases. 
 
 SiTBSEC. 2. — Writ of Sequent ration. 
 
 What it consists of. Sequestration is a process 
 by which a person is deprived of the use and enjoyment 
 of all his real and personal property within the juris- 
 diction of the court ; and consists of a writ directed to 
 commissioners, usually four in number, nominated by 
 the prosecuting part}', commanding them to enter the 
 lauds and seize the goods of the offender (f). 
 
 {c) Cons. Old. XXX. r. 1. {/) Iluutcr's Suit, Oth c<l. 170.
 
 328 ENFORCING JUDGMENTS AND ORDERS. 
 
 Requires no Leave. This writ, unlike the writ 
 of attachment, in general requires no order, but may be 
 issued wherever any person is, by any judgment or 
 order {r/), directed to pay money into court, or to do 
 any other act in a limited time, and, after due service 
 of such judgment, refuses or neglects to obey the 
 same {//). A sequestration cannot be issued merely to 
 enforce payment of costs, without an order (/), nor is it 
 a proper remedy for mere nonpayment of a debt or 
 damages (/.•). It is also to be observed, that the order 
 only mentions the case of refusal or neglect to do an act, " 
 and makes no reference to cases where a person disobeys 
 an injimction restraining him from doing an act. 
 
 The Writ. The writ is prepared and issued by the ^ 
 party prosecuting it, in the same way as a writ of at- 
 tachment, but should be engrossed on parchment (/). 
 
 Effect of Writ. When issued it is delivered to 
 the commissioners, who may then take possession of the 
 offender's goods and chattels in possession (but they 
 cannot sell them without an order of court), and also of 
 the rents of his real estate ; and if the tenants will not 
 pay them, an order may be obtained on motion, com- 
 pelling them to pay them {in). An order may also be 
 obtained to let the offender's lands, but not to sell 
 them (»). 
 
 Sequestrators must account. The sequestra- 
 
 (^r) Sprunt v. Fugh, L. R.. 7 be made on motion; Hnov: v. 
 
 Ch. D. 567 ; R. S. C, Orel. Udtou, L. R., 17 Ch. D. 433. 
 
 XLII. r. 20. (/•) See Ex parte Xehon, W. X. 
 
 {h) R. S. C, Ord. XLVII. r. 1880, p. 42; but cons. Wilcock v. 
 
 1 ; Sprunt v. Ft'fjh, L. R., 7 Cli. Terrell, L. R., 3 Ex. D. 323. 
 
 D. .567. (/) Dan. Ch. Rr. 913. 
 
 (t^ R. S. C, Old. XLVII. r. 2; [,i>) IV.. OK,. 
 
 but in a proper case an order vnW [n) lb. 913.
 
 WRITS OF EXECUTION. .^20 
 
 tors cannot, however, pay over the property to the pro- 
 secutor, but are in the nature of receivers appointed by 
 the court, and must from time to time accordingly 
 make returns to the court of their receipts, and may be 
 ordered to pay the balances into court, and to pass their 
 accounts from time to time. If the prosecutor wishes a 
 money claim to be discharged out of the sequestered pro- 
 perty, he must obtain an order for that purpose on motion. 
 Discharge. When an offender has purged his 
 contempt, he should take out a summons to have the 
 ' sequestration discharged, and calling upon the commis- 
 sioners to pass their accounts (o) . 
 
 SuBSEC. 3. — Wn'f of Po>ine>iHio)}. 
 
 This is a writ commanding the sheriff to put the 
 person who has recovered judgment for the recovery or 
 for the delivery of possession of land into actual posses- 
 sion of it (yj), and is essentially a common law writ, 
 having been used under the old practice in actions of 
 ejectment. Formerly, if by a decree in chancery, a 
 defendant was required to deliver up possession of lands, 
 and refused to do so after service of the decree upon him, 
 an order might have been obtained on motion, for what 
 was called a " writ of assistance." By this writ the 
 sheriff was commanded to eject the defendant in posses- 
 sion. The new practice supersedes this («/), and the 
 person in whose favour the judgment is given, may, 
 uiiliout ant/ order for that purpose, sue out a writ of 
 possession on filing an affidavit showing due service of 
 the judgment, and that it has not been obeyed (r). 
 
 (o) Seton, ir,8G. {q) Jlall v. Hall, J 7 L. J., Ch. 
 
 (;;) R. S. C, Ord. XLII. r. 3; 680. 
 and Ord. XLVIII. r. 1. (») R. S. C, Ord. XLVIII. r. 2.
 
 330 ENFORCING JUDGMENTS AND ORDERS. 
 
 SuBSEC. 4. — Wn'f of Deliver >/. 
 
 This is a writ for the delivery up of any property 
 other than land or money. The practice is governed 
 by the 78th sect, of the Common Law Procedure Act, 
 1854 (s), by which it was enacted, that the court or a 
 judge might, upon the application of the plaintiif in 
 any action for the detention of any chattel, order that 
 execution should issue for the return of the chattel de- 
 tained, and that if such chattel could not be found, and 
 unless the court or a judge should otherwise order, the 
 sheriff should distrain the defendant l^y all his lands 
 and chattels in his bailiwick, till the defendant should 
 render such chattel ; or, at the option of the plaintiff, 
 that the sheriff should cause the assessed value of the 
 chattel to be distrained out of the defendant's goods ; 
 and that the plaintiff should also, either by the same or 
 a separate writ of execution, be entitled to have the 
 defendant's goods distrained for damages, costs and 
 interest in the action. 
 
 Leave. It is apprehended, that before this vrrit 
 can be issued, an order for that purpose will be required. 
 
 SuBSEC. 5. — Writ of Fieri Facias. 
 
 This writ is solely used for the purpose of recovering 
 ^money (f), whether in the nature of damages or costs, 
 or otherwise ; and is, in form, a command to the sheriff, 
 to seize and sell the goods of the person against whom 
 it is issued. Although sometimes used in the Chancery 
 Division, especially for enforcing payment of costs, it 
 is nevertheless essentially a common law writ, and as 
 
 (.-) R. 8. C, Ord. XLII. r. 4: (f) R. S. C, Ord. XLII. r. 15. 
 
 iiud Ord. XLIX.
 
 WRITS OF EXECUTIOX. 331 
 
 such, its nature, and the mode of issuing it, will be 
 found treated of in books relating to common law 
 practice. All that need be said here on the subject is, 
 that any person to whom any sura of money, or any 
 costs are payable under a judgment, may, immediately 
 after the judgment shall be duly entered, and without 
 serving the judgment on the defendant, sue out a writ 
 or writs oi fieri f((cias to enforce payment thereof, unless 
 the judgment is for payment within a specified period, 
 when the writ cannot be issued until after the expiration 
 of such period, unless the court or judge, at the time of 
 gi\'ing the judgment, or a judge afterwards, shall order 
 otherwise {u). The court or a judge may also stay 
 execution for any period {x). 
 
 SuBSEC. (J. — Writ of Elegit. 
 
 This writ is also solely used for the pm*pose of re- 
 covering money, and is in form a command to the 
 sheriff, to deliver to the judgment creditor, the whole 
 of the judgment debtor's lands (//), and the judgment 
 creditor is then placed in the position of a mortgagee in 
 possession, and is obliged to account for the rents and 
 profits, and he may apply to the court by petition for a 
 sale of the lands (~), the writ having been first duly regis- 
 tered. This wTit, like that of fieri faeias, is essentially 
 a common law writ, and the reader is therefore referred 
 to books on common law practice for a detailed exposi- 
 tion of the method of suing it out and enforcing it. 
 
 The consideration of writs of Fieri facias ile bonis 
 ecclcsiasticis and of Scquedrari de bonis ccclesiasfids 
 scarcely come within the scope of this AVork. 
 
 (m) B. S. C, Ord. XLII. r. 1 '). (»/) 1 & 2 Vict. c. 110, g. II. 
 
 (x) lb. (--) 27 & 28 Vict. c. 112.
 
 332 ENFORCING JUDGMENTS AND ORDERS. 
 
 CHAPTEE III. 
 
 ENFORCING .JUDGMENTS AND ORDERS OTHERWISE THAN 
 BY WRITS OF EXECUTION. 
 
 Section 1. 
 Attachment of Debt h. 
 Examination of Judgment Debtor. Where a 
 judgment is for the recovery by, or payment to, any 
 person, of mone}', the party entitled to enforce it may 
 apply to the court, or a judge, or the district registrar, 
 for an order for the oral examination of the judgment 
 debtor with respect to debts owing to him. The ex- 
 amination takes place before an officer of the coui't, or 
 a special examiner ; and the court, or a judge, or district 
 registrar may make an order for such examination, and 
 for the production of an}' books or documents {a) . The 
 examination is in the nature of a strict cross-examina- 
 tion, and the debtor is bound to answer all questions 
 relevant to the subject-matter {h). 
 
 Order attaching Debts. The court, or a judge, 
 or a district registrar may also on the ex parte applica- 
 tion of a judgment creditor, either before or after an}^ 
 such examination, and upon affida^■it by himself or his 
 solicitor, stating that judgment has been recovered, and 
 is still unsatisfied, and to what amount, and that an>/ other 
 perfion in indebted to the jad(jment deljfor, and in tcitliin the 
 jurisdiction, order that all debts " owing or accruing " from 
 such third person (who is called the garnishee) to the 
 judgment debtor, shall be attached to answer the judg- 
 
 (a) E. S. C, Ord. XLV. r. 1 ; [h] Eepttblic of Costa Mica v. 
 
 and Ord. XXXV. r. .3a. Stroxsherr,, L. R., 16 Ch. D. 8.
 
 OTHERWISE THAN IIV WKllS 01' EXECUTION. 'i'V-j 
 
 ment debt ; aud by the same or any subsequent order, 
 it may be ordered that the garnishee shall appear before 
 the court or judge, or an olhcer of the court, to show 
 cause why he should not pay to the judgment creditor 
 the debt due to the judgment debtor, or so much thereof 
 as may be sufhcient to satisfy the judgment debt (c). 
 
 What Debts may be attached. The question 
 as to what debts are " owing and accruing," and there- 
 fore attachable, is very frequently a som'ce of great 
 difhculty. For instance, a salary or allowance to accrue 
 infuturo is not attachable (d), although a debt certain 
 but payable in ftttitro is {c). Again, money in the 
 hands of an officer of a court ; as, for instance, a re- 
 ceiver, trustee in bankruptcy, a registrar, or under the 
 control of the court or the like, is not attachable (/) ; 
 nor are seamen's {g) or workmen's wages (//), or naval 
 or military half-pay (/), although a pension for purely 
 past services is attachable (/•). 
 
 How attached Debts are bound. The service 
 of an order that debts due or accruing due shall be 
 attached, or notice of it to the garnishee in such manner 
 as the court or judge may direct, binds such debts in 
 his hands (/) ; and if he does not forthwith pay them, 
 or so much of them as will satisfy the judgment debt, 
 
 (f) R. S. C, Ord. XLV. r. 2; L. 207; £x parte Haw/dng, L. R., 
 
 aud Ord. XXXV. r. 3a. o Cli. 787 ; Dolphin v. Laijton, L. 
 
 (d) Hall V. Fritchett, L. R., 3 R., 4 C. V. D. 130; Stnens v. 
 
 Q. B. D. 215; Lines v. Ea.it India Phillips, L. R., 10 Cli. 417. 
 
 Co., 17 C. B. 351. {(i) 17 & 18 Vict. c. 104, s. 233. 
 
 (.-•) Sparkes v. Young, 8 Ir. C. (//) 33 & 34 Vict. c. 30. 
 
 L. R., Q. B. 201. (<) Dint V. Dent, L. R., 1 P. & 
 
 (/) Russell V. East Anglian D. 306. 
 
 Railway Co., 3 31. & G. 10 1 ; Ex (A) irikock v. Titrell, L. R., 3 
 
 parte Hunter, L. R., 8 C. P. 24 ; Ex. D. 323. 
 
 Dawson v. Malley, Ir. Rep., 1 C. (/) R. S. C, Ord. XLV. r. 3.
 
 334 EXFOKCING JUDGMENTS AND ORDERS. 
 
 into court, and dispute the debt alleged to be due from 
 liim to the judgment debtor, or if he does not appear 
 upon summons, the court or judge may order execution 
 to issue against him (m). 
 
 Garnishee disputing the Debts. If, however, 
 the garnishee shows reasonable grounds (;?) for disputing 
 his liability, the court or judge, instead of ordering 
 execution to issue, may order that any question or issue 
 necessary for determining his liability shall be tried or 
 determined, in any manner in which any issue or ques- 
 tion in an action may be tried and determined (o) . And if 
 the garnishee suggests that a third party is entitled to, 
 or has a charge or lien on the debt, such party may be 
 ordered to appear {p) ; and the court or judge may, after 
 hearing his allegations, or in case of his non-appearance 
 when ordered, order execution to issue against the gar- 
 nishee, or order any question or issue to be tried as 
 above mentioned, and may bar the claim of such third 
 party or make such other order, and upon such terms 
 with regard to the lien or charge (if any) of such third 
 party, and as to costs, as the court or judge shall think 
 just and reasonable (q). 
 
 Payment by, or execution levied vipon, a garnishee, is 
 a valid discharge to him as against the judgment debtor 
 quel the amount paid or levied, even though the attach- 
 ment is afterwards set aside or the judgment re- 
 versed {)•) . 
 
 Costs. The costs of garnishee orders are in the dis- 
 cretion of the court or judge («). 
 
 (w) R. S. C, Ord. XLV. r. 4. {p) lb. r. G. 
 
 («) Xticmati V. lioole, 4 C. B.. [q) lb. r. 7. 
 
 N. S. 434. (/•) lb. r. S. 
 
 (o) R. S. C, Ord. XLV. r. u. (*) lb. r. 10.
 
 OTHERWISK THAN HY WRITS OF EXECUTIOX. 335 
 
 Only applicable to Judgments. Execution by 
 attachment of debts is only applicable to judgmoifs, and 
 not to mere ordera (/). 
 
 SECTIOiN 2. 
 Char(ji)}(j Orders on Stock. 
 
 How obtained. Where a judgment is for the re- 
 covery by, or payment to, any person of money, and the 
 judgment debtor has any interest, whether in possession, 
 remainder or reversion, vested or contingent, in any 
 government stocks, funds or annuities, or in any stock 
 or shares of any public company in England (whether 
 incorporated or not), or in the dividends, interests or 
 annual proceeds thereof, his interest may be ordered to 
 stand charged with the payment of the amount for 
 which judgment is recovered and interest thereon ; and 
 such order entitles the judgment creditor to all such 
 remedies as he would have been entitled to if such 
 charge had been made in his favour by the judgment 
 debtor. But no proceedings can be taken to realize the 
 charge (which must, of course, be by action), until after 
 the expiration of six calendar months from the date of 
 the charging order (?/). 
 
 The application for a charging order is made on peti- 
 tion or summons, supported by affidavit ; but in order 
 to prevent the judgment debtor parting with the pro- 
 perty sought to be charged, the application is cr parte 
 in the first instance, and an order nisi is made, which 
 restrains the bank or company from allowing a transfer 
 of the stock or shares unless and until the order itisi 
 
 {t) Best V. remhrole, L. R., 8 Crom, L. R., 4 Q. B. D. 225. 
 Q. B. ;]63: Samlcrlaud Board v. [u) R. 8. C, Ord. XLVI. r. 1; 
 
 F>-iiiikhin(L i)j. 18; ('rnnetti v. and 1 cV 2 Vict. c. 110, ss. H. 15.
 
 336 ENFORCING JUDGMENTS AND ORDERS. 
 
 is discharged, on good cause being sliown by the judg- 
 ment debtor [x). No order will be made unless the 
 judgment has been entered for a specific and ascer- 
 tained amount ; but it is not material that the date 
 fixed for payment has not arrived [>/). 
 
 A time is mentioned in the order ai-si within which 
 the judgment debtor must show cause against it, and if 
 he fails to do so, the order will, on proof of notice to 
 the judgment debtor, or his solicitor or agent, be made 
 absolute, subject to a power vested in the judge to 
 discharge or vary such order (z). 
 
 Notice of a charging order should be at once given 
 to the bank or the company, as the case may be ; and if 
 the stock charged is in court, the order should be lodged 
 at the Chancery Pay Office {a) . 
 
 An order nisi may be made by a district registrar, 
 but an order absolute cannot (z). 
 
 Section 3. 
 Committal under the Debtors Act. 
 A simpler method of coercing an obstinate party than 
 that afforded by writ of attachment, is by moving to 
 commit him to prison for contempt of court. No person 
 can, however, be arrested or imprisoned for making 
 default in imyment of moneij recovered by judgment, save 
 only:— 
 
 1(1.) For default in payment of a penalty or penal 
 sum not arising out of contract. 
 / (2.) For default by a trustee or person acting in a 
 / fiduciary capacity, and ordered to pay by a court 
 
 («') 1 & 2 Vict. c. 110, 8. 15. (//) 1 & 2 Vict. c. 110, s. 15. 
 
 {x) WicUjerij v. Tepptr, L. R., 6 (c) R. S. C, Ord. XXXV. r. 3a. 
 
 Ch. D. 364; BagnaU v. Carlton, {a) llali/ y. Bairi/, 'L.H., 3 Ch. 
 
 ib. 130. 452.
 
 OTHERWISE THAN MY WRITS OF EXECUTION. 337 
 
 of equity any sum in his possession or under his 
 control. 
 (3.) For default by a solicitor when ordered to pay 
 costs for misconduct as such, or in payment of a 
 sum of money when ordered to pay the same in I 
 his character of an officer of tlie com-t. ' 
 
 (4.) Default in payment of any debt, or instalment 
 of any debt, due from any person in pursuance 
 of any judgment or order of a competent court, 
 where it is proved to the satisfaction of the court 
 that the defaulter has had means to pay since the 
 date of the judgment or order (h). 
 No person can, however, be imprisoned for more than 
 one year under the first three exceptions, or for more 
 than six weeks under the fourth (c). And with respect 
 to exceptions two and tliree, the coui't or judge making 
 the order for payment, or having jurisdiction in the 
 action or proceeding in which the order for payment 
 is made, may inquire into the case, and subject to the 
 proviso as to imprisonment for not more than one year, 
 may grant or refuse, either absolutely or on terms, 
 any application for a writ of attachment (see supra) or 
 other process or order of arrest or imprisonment, and 
 any application to stay the o^Deration of any such writ, 
 process or order, or for discharge from arrest or im- 
 prisonment thereunder {d ) . 
 
 When it is desired to imprison a person for contempt 
 of court or non-payment of mone}-, the application 
 should be by motion (on notice), founded on an ailidavit 
 setting forth the contempt, or where the application is 
 made in consequence of non-payment of money, showing 
 
 (b) 32 & 33 Vict. c. G2, s. 4. {(I) 41 & 42 Vict. c. 54. 
 
 (.) lb. 
 U. Z
 
 •338 ENFORCING JUDGMENTS AND ORDEKS. 
 
 the debtor's means of payment (e), and his neglect or 
 refusal to pay ; but the court may direct an inquiry 
 or require further evidence as to this (/). The order, 
 where made in consequence of non-payment of money, 
 may be for committal until the whole debt and costs 
 are paid or until some instalment and costs are paid {g) ; 
 but upon payment of the amount mentioned in the 
 order, and of the costs and fees, the debtor will be en- 
 titled to a certificate of payment, signed by the creditor 
 or his solicitor, and upon such order will be entitled to 
 be discharged [h). In other cases he must apply for his 
 discharge by motion. 
 
 When made, an office copy of the order, indorsed 
 with the master's direction to the sheriff to execute it, 
 must be delivered to the sheriff (or sheriffs, where it is 
 uncertain in what county the debtor is), for execu- 
 tion (/) ; and the sheriff must within two days after the 
 arrest indorse the date thereof on the order, and return 
 it to the creditor or his solicitor (/»•) . 
 
 It must be observed that committal is only in a id of, 
 and not in substitution for, other modes of execution, 
 and therefore a debtor does not, by enduring his im. 
 prisonment, become released from his liability to pay 
 the debt (/) ; and where the order is for payment by 
 instalments, and on payment of the first instalment the 
 debtor gets discharged from prison, but makes default 
 in payment of a subsequent one, he will become liable 
 to be attached by writ of attachment (for which see 
 
 ie) Cons. Ord. XLII. r. 2, and (/,) lb. r. 17. 
 
 32 & 33 Vict. c. 62, .s. T, ; Gen. {i) lb. r. 15. 
 
 Ord. Jan. 1870, r. 10. {k) lb. r. 16. 
 
 (/) Gen. Ord. Jan. 1870, rr. {I) 32 & 33 Vict. c. 62, s. y ; 
 
 n, 12. Gen. Ord. Jan. 1870, r. 14. 
 
 (.</) lb. r. 1:J.
 
 OTHERWISE THAN BY WRITS OF EXECUTION'. -339 
 
 supra), and will not then be entitled to be discharged 
 at the end of the year or six weeks, as the case may 
 be(w). 
 
 Section 4. 
 
 Vesting Orders. 
 
 It is convenient in this place to mention another 
 means possessed by the court of enforcing obedience to 
 a particular class of orders, viz., those in which the 
 execution of a deed or conveyance is required by the 
 court in order to vest the legal estate in property in the 
 person equitably entitled to it. Formerly, a contu- 
 macious person, if he chose to lie in prison, or submit 
 to have his property sequestered, might defeat the 
 plaintiff of his rights. In such cases the obstinate per- 
 son is considered a trustee of the legal estate, and on 
 his refusal or neglect to convey it a vesting order will 
 be made under the provisions of the Trustee Acts, which 
 are more particularly treated of in the second part of 
 this work. The application is by summons. 
 
 Section 5. 
 Mcccirpr. 
 It would seem that where a writ of execution is 
 inapplicable a receiver will be appointed on motion in. 
 the usual way (ii). 
 
 (m) lb. r. 18. («) Salt v. Cuoper, L. R., IC 
 
 Ch. D. .">44. 
 
 z2
 
 ( 340 ) 
 
 Sub-division III. 
 Appeal. 
 
 When any party is dissatisfied witli a judgment or 
 order of the Chancery Division, he may in general 
 appeal from it to the CoTirt of Appeal, -where, if the 
 appeal is from an interlocutory order, it will be heai'd 
 by not less than t'wo judges ; or, if a final judgment or 
 order, by not less than three {a). A person not a party 
 to an action, but interested in it, may obtain leave to 
 appeal on ex parte motion (b). 
 
 Time. A party is, however, not permitted to keep 
 an appeal hanging over his opponent's head for an in- 
 definite time, and if his appeal is from an interlocutory 
 order in an action, or any order made in a matter , he 
 can not, except by leave of the Appeal Court, serve 
 notice of motion of appeal {c) _after twenty-one days, 
 and, in the case of a final judgment in an action, after 
 one year from the date at which the judgment is 
 entered ; or where an action is dismissed or a judgment 
 refused, with or without costs, then from the date of 
 such dismissal or refusal (f/). A refusal to give leave 
 to amend at the hearing iprms part of the final judg- 
 ment, and is not an interlocutory proceeding (e). 
 
 (a) 38 & 39 Vict. c. 77, s. 12. (</) E. S. C.Ord. LVIH. rr. 9, 
 
 (b) Markham v. Marhham, L. 15; andseei'Miwef^^^v. .Si>;;i. iSyn- 
 R., 16 Ch. D. 1. dicate, L. E., 3 Ch. D. 127; Inter- 
 
 (c) Ex parte Ylney, L. R., 4 national Society v. City of Moscow 
 Ch. D. 794 ; Ez parte Saffery, L. Gas Co., L. R., 7 Ch. D. 241. 
 R., 5 Ch. D. 36.5. {e) Land v. Briggs, L. R., 16 
 
 Ch. D. 663.
 
 APPEAL, 341 
 
 If these periods have expired, special leave to appeal 
 must be applied for by motion, of which notice must 
 be given to the other side (./') ; and leave will not be 
 given unless the appellant has been misled, either by 
 his opponents, or an officer of the court, or has been 
 the victim of unavoidable accident. Mere mistake, 
 whether of fact, procedure or law, is no ground for 
 granting leave (g). 
 
 Mode of Appealing. The mode of appealing is 
 by serving fourteen days' notice of motion in the case 
 of a judgment (final or interlocutory), and four days in 
 case of an interlocutory^ q^-f/^r (/<), upon all parties dh'cctbj 
 affected by the appeal (/) ; and it is not necessary to 
 serve any other parties, although the Court of Appeal 
 may order that notice shall be served on any person, 
 whether parties to the action or matter or not, and may 
 adjourn the hearing of the appeal for that purpose upon 
 terms (/»•). 
 
 Irregular Notice. If a notice of appeal is irre- 
 gular, or does not cover the Avhole ground of appeal, or 
 is otherwise defective, it may be amended by the Court 
 of Appeal (/) ; and wliere considered desirable, a notice 
 of appeal may be withdrawn, and a new one substituted ; 
 
 (/) Everett v. Lawrence, L. R., to attend the proceedings, ho 
 
 4 Ch. D. 139. must, nevertheless, be served with 
 
 (f)) Interxatioual Society v. City notice of appeal, if directly af 
 
 of Moscow Gas Co., supra,; Hiyhton fectcd. Helices, L. E.., 15 Ch 
 
 V. Treherne, 39 L. T. 411 ; Rhodes D. 490. 
 
 V. Jenkins, L. R., 7 Ch. D. 711 : (/.) R. S. C, Ord. LVIII. r. 3 
 
 Craig v. T)iilUps, ib. 249 ; Re Hunter v. Hunter, 24 W. R. 527 
 
 llankey, L. R., 10 Ch. D. 613 Purnell v. G. W. Railway Co., L 
 
 (/«) R. S. C, Ord. LVIII. r. 4. R., 1 Q. B. D. 636. 
 
 (i) Where a person served with {l) lb.; Re Duchess of West 
 
 notice of the decree in an adminis- minster, ^c. Co., L. R., lOCh. D 
 
 tration action does not get leave 307.
 
 342 APPEAL. 
 
 but the latter must of course be given within the time 
 limited for giving an original notice of appeal (wi). 
 Where, however, both parties have agreed that the 
 appeal shall be withdrawn neither party can change his 
 mind and prosecute the appeal without leave (/?). 
 
 Form of Notice. No precise form is required for 
 the notice (o), but of course it is desirable, that the notice 
 should be correct, both in form and substance. Such a 
 notice should be in the following form : — 
 
 In the Covirt of Appeal. 
 
 1881. S. No. 100. 
 
 Between John Styles Plaintiff, 
 
 and 
 
 Samuel Crane Defendant. 
 
 Take notice, that this honorable court will be moved on Thursday, 
 the 26th day of May, 1881, or as soon thereafter as coimsel can be 
 heard, by Mr. A. B. as counsel on the part of the above-named defen- 
 dant Samuel Crane, that the judgment made in this action and dated 
 the 20th day of March, 1881, may be reversed [^or if only part is ap- 
 pealed from, so far as it directs that {stating the part appealed against)'\. 
 And that it may be adjudged that [statinf/ tlie order desired.'] 
 Dated this day of 1881. 
 
 George Smith, 
 Solicitor for the above-named Defendant. 
 To Mr. Francis Jones, 
 
 Solicitor for the above-named Plaintiff. 
 
 Setting down. Although notice of motion is given, 
 the appeal is not brought on like a motion in the High 
 Court, but must be set down for hearing. This is done 
 where a judgment or order is appealed against, by taking 
 the judgment or order, or an office copy of it, together 
 with a coi^y of the notice of motion, to the proper officer 
 
 (»i) Norton y.L. ^- X. W. Rail- Ch. D. 23. 
 loay Co., 40 L. T. 597. (o) Ex parte Laics, L. E., 7 Ch. 
 
 («) Watson V. Cave, L. K, 160.
 
 APPEAL. 343 
 
 of the Court of Appeal, who thereupon sets down the 
 appeal, by entering it in the proper list of appeals; and 
 it comes on to be heard according to its order in that 
 list, unless the Court of Appeal, or a judge of that court, 
 directs otherwise ; but it must not come into the paper 
 for hearing before the day named in the notice (p). 
 Where the appeal is from the refusal of a judgment or 
 order, of course the notice of appeal only need be taken 
 to the officer (5'). In entering the appeal, it must be 
 borne in mind that it must be entered before the day 
 named in the notice for bringing it on, otherwise it will 
 be treated as abandoned ; unless indeed that day falls 
 in vacation, in which case the appeal sliould be entered 
 before the next day of the sitting of the court (r). 
 
 Ex parte Appeals. Where an application to the 
 High Coiu't is ex jxnie, an appeal from its refusal is 
 also ex parte (s) ; and in that case, it is made by motion 
 without setting it down or entering it for hearing, but 
 such appeal motion must be made within four days, 
 unless a judge of the court below, or of the Appeal 
 Court, extends the time (t). 
 
 Urgent Appeals. It is obvious that certain classes 
 of appeals require prompt hearing, in order to prevent a 
 miscarriage of justice. Such are appeals from inter- 
 locutory orders in urgent cases. Accordingly such 
 appeals are set down in a separate list, and are heard 
 quickly. Appeals of this kind are either (1) in cases of 
 injunction, prohibition, iie exeat regno, or stop orders ; 
 (2) in cases relating to the appointment of receivers, 
 
 {p) R. S. C, Ord. LVIII. r. 8. R., 4 Ch. D. :J05; Hhodetisack v. 
 
 \q) Smith v. Grindley, L. R., 3 Frlce, W. N. 1880, p. 69. 
 
 Ch. D. 80. (■«) R. S. C, Old. LVIII. r. 10. 
 
 (>•) Re National Funds Co., L. [i) lb.
 
 344 APPEAL. 
 
 managers, or liquidators ; (3) in cases in which enlarged 
 time is asked for redemption, or for payment into court, 
 or any other question of enlarging time ; (4) questions 
 relating to wards or infants ; (5) questions in relation to 
 contempt, or enforcing execution ; (6) questions relating 
 to discovery of documents ; (7) questions relating to pro- 
 cedure or practice (?(). In setting down an appeal in 
 this list, the solicitor must certify at the bottom of the 
 notice of motion the class in the above list under which 
 the appeal falls. 
 
 E-ehearillg. When the appeal comes on for hearing 
 it is reheard («■), and the Court of Appeal has all the 
 powers and duties of the High Court, and full discretion 
 to hear further evidence viva voce, or by affidavit or de- 
 position. This further evidence may be given without 
 any leave or interlocutory applications, or in any case as 
 to matters which have occurred after the date of the 
 decision appealed against. In other cases, special leave 
 must be obtained, which is usually asked for at the hear- 
 ing of the appeal, where it is to be given by affidavit, 
 notice of the intention to make the application having 
 been previously given to the other side {x) . But where 
 it is vird voce, a special notice must be previously made 
 and an order obtained (//) . 
 
 How Evidence used. Where a question of fact 
 is appealed against, and the evidence was taken by affi- 
 davit in the court below, those affidavits are used in the 
 Court of Appeal. If the evidence in the court below 
 was viva voce, then the judge's notes of the evidence are 
 
 (m) Registrar'sNotice, January, (x) See Hastie x. Hastie, L. R., 
 
 1877 ; W. N. 1877, pt. ii., p. 162. 1 Ch. D. 562. 
 
 (!<•) R. S. C, Ord. LVIII. r. 2. (y) Dic/cs v. L'rovkd, L. R., 13 
 
 Ch. D. 6o2.
 
 Al'l'EAL, 345 
 
 used in the Court of Appeal, or sucli other materials 
 may be used as the coui-t may direct (~) . iShort-hand 
 notes may be referred to, but the judge's notes are the 
 ultimate test of what was said, and the Court of Appeal 
 does not encourage short-hand notes of evidence (r/). 
 
 Where evidence has not been printed in the court 
 below, that court, or the Court of Appeal, or a judge of 
 either court, may order it to be printed for the purpose 
 of the appeal (b). 
 
 Procedure on Hearing. The appeal being by 
 way of rehearing, is heard like the original case, with 
 the exception that the judge's notes of rird voce evidence 
 are read instead of the evidence being again given viva 
 voce. The court has power to give any judgment, or 
 make any order, which ought to have been made, even 
 though the notice of appeal does not ask for it ; and it 
 also has power to give relief to any of the parties, 
 although they may not have appealed, and it has abso- 
 lute discretion over the costs {c) . 
 
 Where a respondent to an appeal also wishes to 
 appeal himself, he need not give the ordinary notice of 
 appeal; but he should within eight or four days (ac- 
 cording as the appeal is from a final judgment or inter- 
 locutory order), give notice of his intention to appeal(r/). 
 The omission to give this notice does not diminish tlie 
 powers of the court, but is ground for an adjourn- 
 ment and for a special order as to costs {e). However, 
 a respondent who seeks to have an order varied on a 
 
 (.-) R. S. C, Ord. LVIII. r. 11 ; (A) R. S. C, Ord. LVIII. r. 12. 
 
 and see as to short-hand notes, (r) lb. r. 5. 
 
 Laming v. Gee, 26 W. R. 217. ['I) lb. rr. 0, 7. 
 
 (a) Kelly v. Bijlcs, L. R., 13 Ch. (e) lb. r. 6. 
 D. 693.
 
 346 APPEAL. 
 
 point in which the appellant has no interest, cannot 
 proceed in this way, but must give notice of appeal {e) . 
 
 An interlocutory order which has not been appealed, 
 does not bar or prejudice the Court of Appeal on an 
 appeal from the Jinal order in the action (/'). 
 
 Wherever an application may be made, either to the 
 court below or to the Appeal Court, it should be made 
 in the first instance to the court below ((/). Every 
 application to the Appeal Court, or a judge of it, must 
 be made by motion {h). 
 
 _ An appeal does not operate as a stay of execution, 
 unless ordered by the court below or the Court of 
 Appeal (/). 
 
 Abandonment of Appeal. Where a notice of 
 appeal is withdrawn, the appeal will on motion be dis- 
 missed with costs {/,•). 
 
 Staying Appeals. Yexatious or frivolous appeals 
 may, like frivolous or vexatious actions, be stayed on 
 motion made to the Court of Appeal (/). Under special 
 circumstances, too, the Court of Appeal will order the 
 appellant to give security for the costs of the appeal {m) ; 
 as, for instance, where he is insolvent or has not paid 
 the costs incurred in the court below (>i). If the secu- 
 rity is not given in a reasonable time the respondent 
 may move to dismiss the appeal. 
 
 (e) lie Cavander, L. R., 16 Ch. v. Lvidncr, ib. 559. 
 D. 270. (0 Vale v. Oppcrt, L. R., 5 Ch. 
 
 (/) R. S. C, Ord. LVIII. D. 969. 
 r. 14. («0 R. S. C, Ord. LVIII. 
 
 [g) Ib. r. 17. r. 15. 
 
 [h) Ib. r. 18. («) Waddell v. Blockeij, L. R., 
 
 (J) Ib. r. 16. 10Ch.D.416; Flmptonv-Spiller, 
 
 (k) Charlton v. Charlton, L. R., 21 S. J. 668. 
 16 Ch. D. 273 ; and see Harrison
 
 ( 347 ) 
 
 Sub-division IV. 
 
 Miscellaneous Regulations -with regard to 
 Procedure. 
 
 Chaptee I. — Sittings, Vacations and Time. 
 
 Chapteb II. — CouET Fees. 
 
 Chaptee III. — Supplemental Actions. 
 
 CHAPTER I. 
 
 SITTINGS, VACATIONS AND TIME. 
 
 Both the High Court and the Court of Appeal have 
 periodical vacations, which are the same for both courts. 
 The periods during which the court transacts business 
 in court used to be called terms, but they are now 
 designated " sittings." 
 
 There are four sittings and foTir vacations in every 
 year. The Michaelmas Sittings commence on the 2nd of 
 November, and terminate on the 21st of December ; the 
 Hilary Sittings commence on the 11th of January, and 
 end on the Wednesday before Easter ; the Easter Sit- 
 tings commence on the Tuesday after Easter week, and 
 end on the Friday before Whitsuntide ; and the Trinity 
 Sittings commence on the Tuesday after Whitsun week, 
 and end on the 8th of August (a). 
 
 As to the vacations, the Long Vacation opens on 
 the 10th of August, and terminates on the 24th of 
 October; the Christmas Vacation commences on the 
 
 (a) R. S. C, Old. LXI. rr. 1, 2.
 
 348 REQULATIONS -WITH REGARD TO PROCEDURE. 
 
 24th of December, and closes on the 6th of January ; 
 the Easter Yacation begins on Good Friday, and ends 
 on Easter Tuesday ; and the Whitsun Vacation com- 
 mences on the Saturday before Whitsunday, and ter- 
 minates on the Tuesday following. 
 
 During the vacations, two judges {b) and one chief 
 clerk in each set of chambers, take any urgent business. 
 The central office and district registries are, however, 
 open all the year round except on certain days (c). 
 
 Pleading. No pleadings can be amended or de- 
 livered in the long vacation unless directed by a 
 judge {(l) ; and the time of the long vacation is not 
 reckoned in the computation of the times appointed or 
 allowed for fihng, amending, or delivering any plead- 
 ing, unless otherwise directed by a judge (e). 
 
 Time. As to time generally ; month means calendar 
 month (/) ; and where any limited time less than six 
 days from or after any date is appointed for any pur- 
 pose, Sunday, Christmas Day and Good Friday do not 
 count {(i) . 
 
 So, where the time for doing anything expires on a 
 Sunday (or other dies non), it may be done on the next 
 day {h) ; and generally, in the absence of a written 
 consent of the opposite party (which is binding (/)), a 
 judge or the court has full power to enlarge or abridge 
 the times appointed for doing any act or taking any 
 proceeding upon terms or otherwise as justice may 
 require (/»•). 
 
 (i) R. S. C, Ord. LXI. r. 5. (f/) lb. r. 2. 
 
 {c) lb. r. 4. (A) lb. r. 3. 
 
 {d) E. S. C, Ord. LVII. r. 4. (0 lb. r. 6a. 
 
 (e) lb. r. 6. (A) lb. r. G. 
 (/) lb. r. 1.
 
 SirriNQS, VACATIONS AXn TIME. 349 
 
 It may be mentioned that service of proceedings 
 must be made before p.m. on ordinary days, and 
 before 2 p.m. on Saturdays, or they will be taken to have 
 been served on the next day on which they are capable 
 of being served (/). 
 
 CHAPTER II. 
 
 COURT FEES. 
 
 On almost every proceeding taken in the offices of the 
 court, fees have to be paid; and these fees are called 
 court fees. 
 
 How paid. Court fees are invariably paid in the 
 central office by means of stamps either impressed or 
 adhesive, according to the nature of the proceeding {m) : 
 but in the district registries (except at Manchester and 
 Liverpool («) ) they are at present paid in money (o). 
 
 No document requiring to be stamped will be re- 
 ceived, filed, used, or admitted in evidence, without 
 being properly stamped; but if such a document has 
 been filed or received tlu-ough inadvertence, the Lord 
 Chancellor or the court may order that the same shall 
 be properly stamped (;;) . 
 
 Higher and Lower Scales. The fees are calcu- 
 lated upon two scales ; the higher scale being applicable 
 to actions for special injunctions to restrain the com- 
 mission or continuance of waste, nuisances, breaches of 
 covenant, injuries to property, and infringement of 
 
 (0 lb. r. 8. (o) Ord. 28th Oct. 1875, r. 1. 
 
 (»)) Ord. 28th Oct. 187.'), r. 1. {p) Jud. Act, 1875, s. 26. 
 {>i) Ord. 24th Oct. 1S77, r. 2.
 
 350 REGULATIONS WITH REGARD TO PROCEDURE. 
 
 rights, easements, patents, copyriglits and other similar 
 cases, where the procuring of the injunction is the prin- 
 cipal relief sought for(^). The higher scale is also 
 applicable to all cases to which the lower scale is inap- 
 plicable. 
 
 The lower scale is applicable to liquidated demands, 
 to administration actions, partnership actions, foreclosure 
 or redemption actions, actions for specific performance, 
 proceedings under the Trustee Acts or the Trustee 
 ReKef Acts, proceedings relating to the guardianship 
 or maintenance of infants, proceedings relating to funds 
 carried to separate accounts, and proceedings under any 
 railway or private act of parliament, or under any 
 summary or statutory jurisdiction, in any of which eases 
 the estate or fund to be dealt with does not exceed 
 1,000/. in value ; and generally, in all other cases where 
 the estate or fund does not exceed that sum (r) . 
 
 The court or a judge may, ho"^'ever, in any case 
 direct that either scale shall be charged. 
 
 Certificate of Scale. The solicitor (or suitor) must, 
 on any action or proceeding in which he claims to pay 
 the lower scale of fees, file with the proper ofiicer a cer- 
 tificate that "to the best of his judgment and belief 
 the lower scale of fees of court is applicable to this 
 case." A copy of this is sealed, and its production to 
 all ofl&cers of the court is sufficient authority to them to 
 accept the lower scale (s). 
 
 Payment on improper Scale. In any case 
 in which the lower scale has been erroneously or im- 
 properly certified, the deficiency in fees paid must be 
 
 {q, Add. R. Aug. 187o. Ord. (;•) lb. r. 1. 
 
 VI. r. 2. {») Ord. 28th Oct. 1875, r. 3.
 
 COURT FEES. 351 
 
 made good (t) ; and, on tho other hand, where the higher 
 scale has been erroneously paid, the excess may be 
 allowed by the taxing master on taxation of the 
 costs («). 
 
 Deposit. A deposit on accoimt of expenses may be 
 required by an official referee before proceeding with a 
 reference {x) ; and, in such case, the solicitor or party 
 making the deposit, must present to the officer requiring 
 the deposit, a certificate duly stamped for the amoimt of 
 such deposit. Forms of these certificates may be ob- 
 tained at Somerset House. When the fees are after- 
 wards ascertained, the referee indorses the amount of 
 them on the certificate, and if the amount exceed the 
 deposit, the certificate must be stamped up to the excess 
 before he will give his award. If, on the other hand, 
 the deposit exceed the amount of the fees, the excess 
 will be repaid at Somerset House on production of the 
 certificate and indorsement (y) . 
 
 Amount of Fees. As every practitioner possesses 
 a copy of the Eules and Orders under the Judicature 
 Acts, it is not considered needful to reproduce here the 
 schedule to the order as to costs of the 28th October, 
 1875, which sets forth the amount of the fees payable 
 in different proceedings ; nor the schedule to the order 
 as to fees and percentages of the 22nd April, 1876, 
 which specifies the form of stamp (/. c. whether adhesive 
 or impressed) applicable to each such proceeding. 
 
 {t) Ord. 28th Oct. 1875, r. 3. (x) Ord. 24th April, 1877. 
 
 («) lb. (i/) Ord. 22nd AprU, 1870, r. :5.
 
 352 REGULATIONS WITH REGARD TO PROCEDURE. 
 
 CHAPTEE III. 
 
 SUPPLEMENTAL ACTIONS. 
 
 Sometimes after a judgment has been passed and 
 entered, it is found that the judgment ought to have 
 been extended, so as to give some further relief; or that 
 the relief ordered by the judgment will be incomplete 
 without something further. In such cases it would 
 seem that the old practice will prevail, and that a new 
 writ may be 'issued claiming the new relief, and also 
 claiming that the new action may be taken as supple- 
 mental to the former one, and that the proceedings 
 already had in the old action may be adopted. For 
 instance, in a foreclosure action, it may be found after 
 judgment, that some other property was included in 
 and liable under the mortgage, although not included 
 in the judgment for foreclosure. In such a case it is 
 apprehended that a supplemental action might be com- 
 menced for foreclosure of this property.
 
 INDEX. 
 
 ABSTRACT OF TITLE, on sale by court, 171, 173. 
 
 ACCOUNTS, 
 
 directed to be taken in chambers, 164. 
 additional, ordered after judgment, lo9. 
 ordered to be taken by referee, 146. 
 may be ordered before judgment, 221. 
 
 district registrar cannot order, except on default in 
 
 appearance, 222. 
 administration decree may be made on hearing of 
 summons for, il/. 
 of execiitors and administrators under Sir George Turner's 
 Act, 307. 
 
 ACKNOWLEDGMENTS. See Mabkied Women. 
 
 ACTION, separate, for separate claims may be ordered, o4. 
 
 ADDING TO JUDGMENT, 159. 
 
 ADMINISTRATION ACTION, 
 transfer of, 22o. 
 advertisements in, 166. 
 
 ADMINISTRATION DECREE, 
 
 may be made on motion on admission in pleading, 101. 
 may be made on intcrlonutory summons claiming an ac- 
 . count, 222. 
 
 ADMINISTRATION SUMMONS, 28o. 
 when applicable to real estate, 286. 
 procedui-e on, ib. 
 evidence on, ib. 
 
 ADMISSION of documents, 131. 
 
 ADMISSIONS, 
 
 facts not denied are taken to be admitted, 87. 
 moving on, in pleading, 100. 
 
 default in pleading not sufficient, 101. 
 order on, discretionary, ib. 
 further hearing may be dispensed with, ib. 
 inquiries and accounts may be directed, and further 
 consideration reserved, ih. 
 V. A A
 
 354 INDEX. 
 
 ADMIT, notice to, 131. 
 
 ADVERTISEMENTS, in administration actions, 166. 
 
 AFEIDAVIT. iSVfi Evidence. 
 
 under Trustee Relief Acts, 237 et seq. 
 
 ALIENS. Sec Paeties. 
 
 ALLOWANCE pending litigation, 223. 
 
 ALTERNATIVE DEFENDANTS, 49. 
 
 ALTERNATIVE RELIEF, 85. 
 
 AMENDMENT, ' 
 
 of writ of summons, 29. 
 of indorsement of claim, 54. 
 of pleadings. See Pleadings. 
 of judgment, 159. 
 of petition, 209. 
 
 ANSWER. See Inteeeogatoeies. 
 
 APPEAL, 340 et seq. 
 time for, 340. 
 extension of time, 341. 
 mode of appeal, il>. 
 on whom notice must be served, ib. 
 irregular notice, ib. 
 form of notice, 342. 
 setting down, lb. 
 ex parte, 343. 
 urgi-nt appeals, ib. 
 is a rehearing, 344. 
 how evidence used on, ib. 
 short-hand notes, 345. 
 procedure on hearing, ib. 
 cross appeals, lb. 
 non-appeal of interlocutory order does not prejudice appeal 
 
 from final judgment, 346. 
 does not operate as stay of execution, ib. 
 abandonment of, ib. 
 staying frivolous appeals, ib. 
 security for costs, ib. 
 by persons not a party, 340. 
 
 APPEARANCE, 64. 
 meaning of, ib. 
 mode of entering an, 65. 
 notice of, must be given to plaintiff, ib., 67. 
 form of, 66. 
 where entered, ib. 
 entering after judgment, 68.
 
 INDEX. ''J05 
 
 APPEARANCE— continued. 
 of pai-tuership firms, G8. 
 
 broach of uuilertakinu: by solicitor to enter an, ili. 
 of iufants and lunatics, i/>. 
 conditional, 70. 
 
 APPLY, liberty to, 153. 
 
 ARREST. See Attachment and Comjiittal. 
 
 ARTIZANS AND LABOURERS' DWELLINGS ACT, 
 
 payment into coiu't under, 270. 
 
 ASSESSORS, trial before judge and, 130. 
 
 ATTACHMENT, 
 
 1. JFrit of, 323 et scq. 
 where applicable, 323. 
 
 leave required for issue of, ib. 
 
 time for applying for, 324. 
 
 service of judgment or order, ib. 
 
 motion or summons for, 325. 
 
 fomi of writ, il>. 
 
 return of writ, 326. 
 
 duties of sheriff, ib. 
 
 procedure if defendant cannot be found, ib. 
 
 serjeant-at-arms, 327. 
 
 discharge of defendant, ib. 
 
 2. Of Debts. 
 
 examination of judgment debtor, 332. 
 
 garnishee order, ib. 
 
 what debts may be attached, 333. 
 
 service on garnishee, ib. 
 
 garnishee disputing debt, 334. 
 
 discharge of garnishee, ib. 
 
 costs, ib. 
 
 not applicable to mere orders, 335. 
 
 ATTORNEY-GENERAL. See Parties. 
 
 consent of, to information how obtained, 33. 
 
 BIDDINGS, opening of, no longer allowed, 175. 
 
 CAMERA, hearing in, 145. 
 
 CERTIFICATE OF CHIEF CLERK, 22, 176. See Cham- 
 bees. 
 
 CESTUI QUE TRUST. See Parties. 
 
 CESTUI QUE VIE, production of, 306. 
 
 A a2
 
 356 INDEX. 
 
 CHAMBERS, 
 
 1. Proceedings in, under jtidgment. 
 counsel not heard in, before cMef clerk, 22, 163. 
 summons to proceed, 161. 
 
 mode of issuing, 162. 
 
 form of, ib. 
 
 service of, 163. 
 
 hearing of, ib. 
 summoning of witnesses, ib. 
 taking accounts in, 164. 
 inquiries in, 166. 
 
 usual inquiries, ib. 
 
 advertisements, ib. 
 
 bringing in claims, 167. 
 
 creditors' claims, tb. 
 
 executor or administrator only party who appears on 
 claims, ib. 
 
 examination of claims, 168. 
 
 adjudication of claims, ib. 
 
 notice of rejection or admission of claims, 169. 
 
 allowance of claims, lb. 
 
 evidence of claims, ib. 
 
 compelling production of documents, 170. 
 
 creditors' costs, ib. 
 sales in, ib. 
 
 who has conduct of, ib. 
 
 incumbrances, ib. 
 
 mode of sale, 171. 
 
 abstract and conditions of sale, ib. 
 
 reference to conveyancing counsel, ib. 
 
 reserved price, 172. 
 
 the sale, ib. 
 
 bidding paper and auctioneer's affidavit, ib. 
 
 leave to bid. 173. 
 
 certificate of sale, ib. 
 
 delivery of abstract, ib. 
 
 requisitions, 174. 
 
 payment of purchase-money, ib. 
 
 conveyance, 175. 
 
 opening biddings not allowed, ib. 
 
 re-sale, 176. 
 . the chief clerk's certificate, ib. 
 
 settling, 177. 
 
 signature of judge, ib. 
 
 remitting for further consideration, 178. 
 
 remitting with a direction to vary, ib. 
 
 fihng, ib. 
 
 application to vary, ib. 
 
 2. InterloctUorij applications in, 210. 
 judicial functions of chief clerks, ib. 
 may be ex parte or on notice, 211. 
 counsel when heard, ib.
 
 INDEX. JJ57 
 
 CHAMBERS— co«<j«««/. 
 
 2. Interlocutorij applications in — coutiuuccl. 
 adjournment into coui-t, 211. 
 sennce of summons, ib. 
 affidavit of service, 212. 
 
 order how drawn up, entered, and enforced, ib. 
 setting aside and varying orders, ib. 
 district registrar's orders, 213. 
 
 CHANCERY PAY OFFICE. See Payment into Couut. 
 
 CHARGING ORDERS, 
 
 on debts. See Attaciiiient. 
 on stock, 335. 
 
 how obtained, ib. 
 
 realization of charge, ib. 
 
 notice of, 336. 
 
 CHARITIES, 
 
 actions by Attorney -General, 287. 
 proceedings by private persons, 288. 
 
 consent of Charity Commissioners necessary, ib. 
 
 under Roinilly's Act, ib. 
 
 under Charitable Trusts Act, 1853. .289. 
 
 under Charitable Trusts Act, 1860, ib. 
 
 appeals from orders of Charity Commissioners, 290. 
 
 charities to which Charitable Trusts Acts apply, 29 1 . 
 
 of which municipal corporations are trustees, 305. 
 
 CLAIM, 
 
 indorsement of. See Writ of Summons. 
 statement of. See Pleadings. 
 
 CLAIMS, in chambers under administration decree, 167. 
 
 COMMITTAL, 336 et seq. And see Attachment. 
 for nonpayment of money, when allowed, 337. 
 application for, how made, ib. 
 discharge, 338. 
 only in aid of other modes of execution, ib. 
 
 CO^IPANIES, scr\ace of writ of summons on, 60. 
 
 COAII'ROMISE, 145. 
 
 CONCLUSIONS OF LAW, how pleaded, So. 
 
 CONCURRENT WRITS, 58. 
 
 CONDITIONAL APPEARANCE, 70. 
 
 CONDITIONS OF SALE, 171. 
 
 CONDUCT OF PROCEEDINGS, applicatious as to, 229. 
 
 CONSOLIDATION OF ACTIONS, 223. 
 
 CONTEMPT OF COURT, committal for, 330.
 
 358 
 
 INDEX. 
 
 CONVEYANCING COUNSEL, reference to, on sale, 171, 175. 
 
 COPIES, 
 
 of affidavits, 118. 
 office, 117. 
 
 CORPORATIONS. See Parties. 
 interrogating, 127. 
 
 COSTS, 
 
 application for taxation of a solicitor's bill of, 292. 
 
 taxation of, 313. 
 
 higher and lower scale, ib. 
 
 procedure on taxation of, 314 et seq. 
 
 review of taxation, 316. 
 
 payment of, out of fund in coiu't, 317. 
 
 payment of, by party, ib. 
 
 taxation of, in district registry, ib. 
 
 security for, 36. See Paeties. 
 
 on appeal, 346. 
 
 COUNSEL, signature of, to pleadings, 79. 
 
 COUNTER-CLAIM. See Pleadings. 
 
 COUNTY, inhabitants of, as parties, 46. 
 
 COUNTY COURT, transfer to, 229. 
 
 CREDITORS, claims of. See Chambees. 
 
 CROSS-EXA]\IINATION, 119. 
 
 CROWN. See Parties. 
 
 CUSTODY OF INFANTS, 277. 
 
 DAMAGES, undertaking in, on application for injunction, 
 214. 
 
 DECLARATION OF RIGHT, 158. 
 
 DECLARATION OF TITLE, 308. 
 
 DECREE. See Judgment. 
 
 DEFAULT, 
 
 of appearance, 71. 
 
 of infants and lunatics, ib. 
 
 service of subsequent proceedings, 72. 
 
 setting aside judgment obtained for, 73. 
 of pleading, 105. 
 
 moving for judgment for, ib. 
 in answering interrogatories, 129. 
 
 DEFENDANTS. See Parties. 
 
 adding new, after issue of writ, 58. 
 
 if statement of claim delivered, it must be amended and 
 served on new defendants. R. S. C, Ord. XVI. r. 16.
 
 INDKX. 350 
 
 DELIVERY, writ of, .330. 
 
 DEMURRER, 
 
 meaning of, 95. 
 
 to the whole or part of a plciicliug', //'. 
 
 form of, i/>. 
 
 demuiTing and pleading together, ib. 
 
 time for delivery of, 96. 
 
 frivolous, ib. 
 
 entry for argument, ib. 
 
 brief. s and argument of, ib. 
 
 allowance of, 97. 
 
 judgment must be moved pro funiui, 97. 
 
 effect of allowance of, 98. 
 
 overruled, 99. 
 
 pleading cannot be amended pending, without leave, 102. 
 
 DENIALS. See Pleadings — Statement of Defence. 
 
 DEPARTURE, 93. 
 
 DISCONTINUANCE, 107. 
 need not be formal, ib. 
 does not prevent new action, ib. 
 not allowed where it would work injustice, ib. 
 costs on, 108. 
 
 DISCOVERY, 123 et seq. 
 by interrogatories, 123. 
 
 principles with rcg'ard to, 124. 
 
 time for delivery of, ib. 
 
 two sets of, cannot be delivered without order, 12.'). 
 
 form of, 126. 
 
 time for answering, ib. 
 
 objections to answering, ib. 
 
 inteiTogating corporations, 127. 
 
 defendant joined for pm-pose of administering interro- 
 gatories to him, 128. 
 
 form of answer, ib. 
 
 objections to sufficiency of answer, ib. 
 
 postponing answer, 129. 
 
 default in answering, ib. 
 
 using answer at the hearing, 130. 
 
 cross-examination of deponent, ib. 
 
 vexatious interrogatories, ib. 
 of documents, 132 et seq. 
 
 order for production of, cannot be made by official 
 referee, 149. 
 
 DISENTAILING DEED. See Protection of Settlement. 
 
 DISMISSING ACTION for want of prosecution, 106, 136. 
 
 DISTRICT REGISTRAR, jurisdiction of. 213.
 
 360 INDEX. 
 
 DISTRICT REaiSTRIES. ^ee Pleadings— Jtogmeot. 
 issue of writs out of, 56. 
 "when appearance should be entered in, 66. 
 ■when one of several defendants enters appearance in London, 
 
 action continued there. R. S. C, Ord. XII. r. 5. 
 removal of action from, ih. 
 application for removal, 226. 
 taxation of costs in, 317. 
 
 DISTRINGAS, 299. See Restraining Oedees. 
 form of affidavit and notice, 300. 
 filing and service of, 301. 
 removal of, ih. 
 effect of, ih. 
 discharge of, 302. 
 change in address for service, ih. 
 
 DOCUMENTS. See Evidence and Discoveey. 
 how pleaded, 84. 
 
 ELEGIT, writ of, 331. 
 
 EVIDENCE, 109 et seq. 
 
 preliminary observations as to, 109. 
 
 always necessary to adduce against infants and lunatics, 110. 
 
 affidavits of service, ih. 
 
 taken in other proceedings, 135. 
 
 in applications under Trustee Acts, 247. 
 
 in applications under Settled Estates Act, 265. 
 
 in applications under Lands Clauses Act, 272. And see 
 
 Lands Clauses Act. 
 on appeal, 344. 
 (1) Of Witnesses, 112. 
 
 either viva voce or by affidavit, ib. 
 ■viva voce except by consent, ih. 
 
 consent dispensed -with in special cases, ib. 
 usual mode of taking evidence in Chancer}', ib. 
 where witness refuses to make affidavit, 113. 
 subpoenas, ih. 
 evidence by affida^vit, 114. 
 
 title, ib. 
 
 must be made in first person, ib. 
 
 description of deponent, ib. 
 
 must generally only speak to facts known, ib. 
 
 mode of swearing, 115. 
 
 mode of swearing joint affidavits, 116. 
 
 erasures in, ih. 
 
 printing of, ib. 
 
 engrossing of, 117. 
 
 exhibits to, ib. 
 
 filing of, ib. 
 
 office copies of, ib. 
 
 furnishing copies of, 118. 
 
 time for filing of, ib. 
 
 cx'oss-examination on, 119.
 
 INDEX. 3lJl 
 
 EVIDENCE— «>«<(■/»<«/. 
 1. Of Witnesses — coutinueil. 
 examination before an examiner, 120. 
 
 mode of taking-, ib. 
 taking evidence de dene esse, 122. 
 interrogatories, 123 et seq. See Discoveey. 
 (2) Of Ihcuments, 131. 
 notice to admit, ib. 
 
 form of, ib. 
 refusal to admit, 132. 
 proof of admission, ib. 
 notice to inspect, 13-1. 
 order for inspection, 132, 134. 
 
 how obtained, 134. 
 time within which inspection must be furnished, ib. 
 reserving inspection, 135. 
 notice to produce, ib. 
 subpcena duces tecum, ib. 
 
 EX PARTE APPLICATIONS. Sec Motion — Petition — 
 SiTiCMONS— Injunction, &c. 
 
 EXAMINER, 120. 
 special, ib. 
 mode of taking examination before, 121. 
 
 EXECUTION, Zl%et seq. . 
 mode of enforcing, 319. 
 stay of, 322. 
 writs of, ib. 
 
 how prepared and issued, 320. 
 
 praecipe for, ib. 
 
 indorsements on, 321. 
 
 teste of, ib. 
 
 may be sued out against third parties, ib. 
 
 for costs may be separate from, for rest of judg- 
 ment,-*^. 
 
 applicable to orders as well as judgments, 322. 
 
 where leave required for issue of, ib. 
 
 irregularly obtained, '323. 
 
 different kinds of, 323. And see Attachment — Elegit 
 — FiEEi Facias — Possession — Sequesteation. 
 
 EXECUTOR, 
 
 may have his accounts taken in chambers, 307. 
 claims in actions by or against, 53. 
 
 EXHIBIT. Sec Evidence. 
 
 EXPERT. See Referee. 
 
 EXTENSION OF TIME. Sec Time.
 
 362 INDEX. 
 
 FEES, 349. 
 
 how paid, ib. 
 
 higher and lower scales, ib. 
 certificate of scale, 350. 
 payment on improper scale, ib. 
 deposit, 351. 
 
 FIERI FACIAS, writ of, 330. 
 
 FIRM. See Paeties and Paetnbks. 
 
 FOREIGN SOVEREIGN. See Parties. 
 
 FOREIGNERS. See Aliens— Paeties. 
 service of writ of summons on, 60. 
 
 FRAUDULENT INTENTION, how pleaded, 84 (but see Ee 
 Rica Gold Co., 11 Ch. D. 43). 
 
 FURTHER CONSIDERATION, 22, 191 et seq. 
 not always needed after inquiry, 192. 
 adjourned into chambers, ib. 
 setting down for hearing, ib. 
 may be brought on as a short cause, 193. 
 leaving papers for judge, 194. 
 briefs, ib. 
 hearing, ib. 
 
 affidavit of sei-vice, 195. 
 negligence of solicitor, ib. 
 
 GARNISHEE. See Attachment. 
 
 GUARDIAN. See Pabties — Infants — Lunatics — Settled 
 
 Estates. 
 
 HUSBAND. See Paeties. 
 
 claims by or against, and wife joined with claims against 
 one only, 52. 
 
 IMPRISONMENT. See Execution. 
 INDORSEMENT. See Weit of Summons. 
 
 INFANTS. See Paeties — Trustee Acts — Settled Estates 
 
 Act. 
 service of ■writ of summons on, 59. 
 appearance of, when defendants, 68. 
 appointment and removal of guardian ad litem, 69. 
 default of appearance by, 71. 
 applications as to guardianship of, made by summons, 
 
 228, 278. 
 applications as to maintenance or advancement of , 228, 278, 
 
 282.
 
 INDEX. 36-'} 
 
 INFANTS— row/(;)«<?rf. 
 
 authorizing leases of estates of, 268. See Settled Estates 
 
 Act. 
 custody of, 277. 
 how made wards of court, 278. 
 a gTiardian of, may apply for directions, 279. 
 property of, 282. 
 
 settlement of, 283. 
 
 application for settlement how made, ib. 
 
 evidence on application, ib. 
 marriage of, without parents' consent, 281. 
 
 INFORMATION, 
 
 consent of attorney -general how obtained, 33. 
 under Marriage Act, 281. 
 
 INHABITANTS, 
 
 of counties, &c. as parties to an action, 46. 
 service of writ of summons on, 61. 
 
 INJUNCTIONS, 
 
 interlocutory, 213. 
 
 writ of, abolished, ib. 
 
 shoidd bs claimed by -WTrit, 214. . 
 
 mode of application for interlocutoiy, ib. 
 
 undertaking in damages, ib. 
 
 notice of, 21.). 
 
 motion to dissolve, ib. 
 
 continuing at hearing, ib. 
 
 INQUIRIES, 
 
 referred to official referee, 149. 
 
 court not bound by report of, ib. 
 
 summons to adopt report of, ib. 
 additional, 159. 
 
 before chief clerk. See Chajtbees. 
 may be ordered under Tiiistee Relief Act, 240. 
 may be ordered under Trustee Act, 248. 
 may be ordered under Settled Estates Act, 265. 
 
 INSPECTION. See Discovery. 
 
 INTERLOCUTORY PROCEEDINGS, 22, 195. See Injttnc 
 TioN — Ne exeat Regno — Receiver — Account — Allow- 
 ance — Consolidation — Transfer Removal — Special 
 Case. 
 
 INTERPLEADER, 73. 
 
 INTERROGATORIES. See Discovert. 
 
 INVESTMENT, 
 
 of money paid into coiu-t, 185. 
 
 payment out of dividends, 188. 
 
 IRREGULARITY in proceedings may be amended, 160.
 
 364 INDEX. 
 
 ISSUE, joinder of, 92. 
 
 ISSUES'G WRIT. Hec Weit of Suinioxs. 
 
 JUDaMENT. Bee Execution. 
 two classes of, 21, 150. 
 
 when obtained for default of appearance, 71. 
 
 setting aside, 73. 
 motion for, in default of pleading, 105. 
 
 practice on, ih. 
 
 may be set aside, 106. 
 
 practice wlien third party brought in, ih. 
 
 defendant cannot move for, on counter-claim, ih. 
 motion for, on referee's report, 151. 
 procedure on motion for, 152. 
 notice of motion for, ih. 
 motion for, may be taken as short, ih. 
 
 notice must state that it Ls to be taken as short, ih. 
 motion for, may be for final or interlocutory judgment, 
 
 153. 
 liberty to apply, xb. 
 minutes of, 154. • 
 bespeaking, 155. 
 
 documents and evidence must be left with the rcgisti'ar, 
 
 affidavit of sei-vice, ih. 
 
 draft of, 156. 
 
 settling draft, ih. 
 
 restoring action to paper to be spoken to on minutes, ih. 
 
 passing, ih. 
 
 entering, ih. 
 
 form of, 157. 
 
 office copies of , 159. 
 
 mistakes in, ih. 
 
 further requirements imder, ih. 
 
 service of, on persons interested, 47. 
 
 on uifants or lunatics effected like writ of summons. 
 E. S. C, Ord. XVI. r. 12a. 
 
 JUDICIAL OPINION AND xVDVICE, 
 
 application for, 234. 
 
 in respect of what matters, ih. 
 
 effect of, ih. 
 
 form of petition for, 235. 
 
 should be signed by counsel, 236. 
 service of petition, 235. 
 presentation and hearing of, 236. 
 
 JURISDICTION, 
 
 issue of writ for service outside the, 57. 
 service of writ of summons outside the, 60. 
 
 JURY. See Teial.
 
 INDEX. '{65 
 
 liANDS CLAUSES ACT, 20!). 
 
 mode of payiug mouey iuto court uudor, 270. 
 application of mouey paid iu uiidor sect. 6'.). .271. 
 
 petition for interim investment, ib. 
 
 petition for payment out of court, 273. 
 
 order, 274. 
 
 future applications must be made to same judge, iO. 
 
 one petition may be presented in two matters, il>. 
 
 costs, ib. 
 on payment in under sect. 76. .275. 
 on payment in under sect. 85, ib. 
 
 on payment in under Artizans and Laboiu-ers' Dwelling 
 Acts, 276. 
 
 LEASES. See Settled Estates Acrr. 
 
 LEAVE to attend proceedings, 47. 
 
 LEGACY DUTY ACT, 241. 
 
 LETTEES, how pleaded, 84. 
 
 LIBERTY TO APPLY always presumed, 153. 
 
 LIEN OF SOLICITOR, 297. 
 
 LUNATICS. See Parties. 
 
 service of writ of summons on, 59. 
 appearance of, ^A•heu defendants, 68. 
 appointment and removal of guardian at litem, 69. 
 defaiilt of appearance by, 71. 
 
 applications as to, under Trustee Acts, 242 et seq. And see 
 Settled Estates Act — Trustee Act. 
 
 MAINTENANCE of infants and lunatics, 282. 
 
 MALICE, how pleaded, 84. 
 
 MANAGEMENT OF PROPERTY, applications as to, 229. 
 
 MARRIAGE. See Parties— "Ward of Court— Infants — 
 Information. 
 
 MARRIED WOMEN. See Parties— Husband— Writ of 
 Summons — Trustee Acts — Settled Estates Acts. 
 
 MARRIED WOMEN'S PROPERTY ACT, applications 
 under, 292. 
 
 MINES. See Settled Estates Act. 
 
 MINUTES. See Judgment. 
 
 MISJOINDER, 
 of parties, 49. 
 of claims, 52. 
 
 MISTAKE in judgment, 156. 
 
 MONEY. See Payment liJTO and out of Court.
 
 366 INDEX. 
 
 MORTGAGE, application by mortgagor when mortgagee an 
 infant or lunatic, 249. 
 
 MORTGAGE DEBENTURE ACTS, 306. 
 
 MOTIONS, 
 
 special or of course, 1 98. 
 of course, ib. 
 
 •what applications must be made by, 229. 
 special, 199. 
 ex parte, ib. 
 on notice, 201. 
 form of notice, ib. 
 service of notice, ib. 
 party unnecessarily served, 202. 
 evidence, ib. 
 briefs, 203. 
 
 procedure on hearing, ib. 
 orders on, 204. 
 
 KE EXEAT REGNO, 220. 
 
 NEGATRT: PREGNANT, 86. 
 
 NEW TRUSTEES, appointment of, 245. See Trustee Acts. 
 
 NEXT FRIEND. See Paettes. 
 
 NOTICE, 
 
 of writ in lieu of service, 60. 
 
 of appearance must be given to plaintiff, 67. 
 
 how pleaded, 85. 
 
 to admit documents, 131. 
 
 to inspect documents, 134. 
 
 to produce documents, 135. 
 
 of trial, 136. 
 
 of desire to have a jury, 137. 
 
 of action being set down as short, 140. 
 
 of motion for judgment, 152. 
 
 of ordinary motion, 201. 
 
 of injunction, 215. 
 
 OITICE COPIES, 
 
 of aflBdavits, 117. 
 of judgments, 159. 
 
 OFFICIAL REFEREE. See Teial. 
 
 ORDERS. See Judgments.
 
 INDEX. '3G7 
 
 PARISH, 
 
 iuhabitants of, as parties to an action, 46. 
 service of writ of summons on, 01. 
 
 PARTIES, 
 
 general rule as to, 30. 
 
 modification of general rule with regard to particular 
 
 person, ib. 
 the crown, ih. 
 
 when the crown can be defendant, id. 
 
 crown sues by attorney-general, 31. 
 
 suit by crown fonnerly called information, ib. 
 relator generally necessary. 6Ve Relator. 
 foreign sovereigns, 33. 
 
 when made defendants, 34. 
 
 when subject to a counter-claim, ib. 
 
 when also English subjects, ib. 
 colonial governments, ib. 
 corporations, ib. 
 
 joining officers of corporation, 35. 
 foreign corporations, 35. 
 chartered unincoi-porated companies, ib. 
 partnership firms, 35. 
 
 when firm consists of one person only, ib. 
 
 declaration as to persons constituting the finn, ib. 
 
 when the firm cannot be sued, 36. 
 aliens, ib. 
 married women, ib. 
 
 when husband must be joined, ib. 
 
 when husband must be made defendant, 37. 
 
 when next friend necessary, ib. 
 
 when next friend dispensed with, ib. 
 
 next friend must procure consent of, 38. 
 
 next friend must be a person of substance, ib. 
 
 written consent of next friend must be filed, ib. 
 
 change of next friend, ib. 
 infants, 38. 
 
 how they sue and are sued, 39. 
 
 next friend of, may co:nmence action without consent 
 of infant, ib. 
 
 improper actions brought in the names of, ib. 
 
 next friend of, need not be a pei'son of substance, 40. 
 
 several actions by several next friends, ib. 
 
 removal of next friend, ib. 
 
 where no next friend, 41. 
 
 infant defendants, ib. 
 
 appearance of infant defendants, 68. 
 
 appointment of guardian ad litem to, 00. 
 
 removal of guai'dian ad litem, ib. 
 
 default of appearance by, 70. 
 lunatics, 41. 
 
 sue by their committees, 42. 
 
 leave of lords justices required, ib.
 
 368 ix])Ex. 
 
 F ARTIES— contimted. 
 
 persons of unsound mind, 42. 
 
 sue by their next friends, ib. 
 defendant lunatics and persons of unsound miud, «i. 
 
 appearance of lunatic defendants, 68. 
 
 appointment of guardian ad litem to, 69. 
 
 removal of guardian ad litem, ib. 
 
 default of appearance by, 71. 
 paupers, 42. 
 
 ■when persons may sue as such, 43. 
 
 how leave obtained, ib. 
 
 counsel and solicitors boimd to act gratis for, ib. 
 
 how dispaupered, 44. 
 persons who ought to be made parties, 44. 
 persons havingadverse interests must never be co-plaintiffs, 
 
 46. 
 numerous class, ib. 
 parties to administration actions, 47. 
 parties to partition actions, ib. 
 where heir or next of kin doubtful, 48. 
 where doubtful from whom relief ought to be sought, ib. 
 all persons to be made against whom relief claimed even 
 in alternative, 49. 
 
 costs of successful defendants paid by unsuccessful 
 ones, ib. 
 misjoinder of, ib. 
 amending, ib. 
 
 after notice of trial or motion, ib. 
 change of, by death, &c., .30. 
 
 order for, how obtained, ib. 
 
 service of order for, ib. 
 
 PARTNERS, 
 
 partnership firms. See Paeties. 
 service of writ of summons on, 60. 
 entry of appearance by, 68. 
 
 PASSING JUDG3IEXT OR ORDER. See Judgment. 
 
 PAUPERS. See Parties. 
 
 PAYMENT INTO AND OUT OF COITIT, 179 et 
 
 rules as to judgments and orders for, ISO. 
 procedure on payment or transfer into court, 182. 
 
 under order, ib. 
 
 without order, 183. 
 
 in urgent cases, without any dii-ection, 184. 
 unpunctual payment or transfer, ib. 
 payment in, of interest, how ascertained, ib. 
 what securities may be transferred, ib.
 
 INDEX. 3G9 
 
 PAYMENT INTO AND OUT OF COURT— coiitluiwd. 
 investment of inouoy paid iuto court, 185. 
 
 where placed ou deposit only, ib. 
 
 method of procuring:, 1^(5- 
 
 investment and accumulation of dividends, ib. 
 procedure on payment or transfer out of court, ib. 
 
 where fund under 300/., 229. 
 
 death of payee before payment, 187. 
 
 marriage of female payee before payment, ib. 
 
 payment to thii'd party, 188. 
 
 payment of dividends, ib. 
 certificates of paymaster-general, ib. 
 donnant causes, 189. 
 And see Trustees — Settled Estates Act — Lands 
 
 Clauses Act. 
 
 PETITIONS, 
 
 either special or of course, 205. 
 petitions of course, ib. 
 
 form of, ib. 
 
 presentation of, 206. 
 
 order on, ib. 
 
 orders obtainable on, 230. 
 
 order irregularly obtained, 206. 
 special petitions, ib. 
 
 how prepared, ib. 
 
 service of, ib. 
 
 engrossment of, 207. 
 
 presentation of, ib. 
 
 answering of, ib. 
 
 copy for use of judge, ib. 
 
 costs of doubtful respondent, 208. 
 
 evidence, ib. 
 
 briefs, ib. 
 
 hearing, ib. 
 
 standing over, 209. 
 
 restoration to paper, ib. 
 
 leave to amend, ib. 
 
 adjournment to chambers, ib. 
 filing, ib. 
 
 PLEADINGS, 
 
 definition of, 78. 
 
 what they consist of, ib. 
 
 of fact and of law, 79. 
 
 printing of, ib. 
 
 counsel's signature to, ib. 
 
 delivery of, ib. 
 
 cannot be made during long vacation, 348. 
 
 in default of appearance, 80. 
 close of, 94. 
 
 U. B B
 
 370 INDEX. 
 
 FLEABISGS— continued. 
 
 (1.) Statement of claim, 
 rule as to deHvery of, 80. 
 form of, 81. 
 title of, 82. 
 rules -with regard to statements in, 83. 
 
 evidence not to be stated, ib. 
 
 separate allegations in separate paragraphs, ib. 
 
 distinct causes of action must be separately stated, ib. 
 
 documents, hovr stated, 84. 
 
 contract arising from letters, how stated, ib. 
 
 malice or other condition of mind, how stated, ib. (but 
 see ReEica Gold Co., L. E., 11 Ch. D. 43). 
 
 notice, how stated, 85. 
 
 conclusions of law must not be stated, ib. 
 
 facts presumed in plaintifi's favour not stated, ib. 
 claiming part, ib. 
 
 (2.) Statement of defence, 
 time for delivery of, 86. 
 title of, ib. 
 denial of facts, ib. 
 
 must not be general, ib. 
 
 must not be evasive, 86. 
 facts not denied are taken to be admitted, 87. 
 denial of contract does not deny its legality, ib. 
 pleading statutes of frauds, limitations, kc, ib. 
 pleas in confession and avoidance, ib. 
 pleading several grounds of defence, 88. 
 denial of plaintifi's representative capacity, ib. 
 pleading defence after action brought, ib. 
 
 confession of same, ib. 
 
 (3.) Counter-claim, 89. 
 when pleadable, ib. 
 
 statements of, must be distinct from defence, ib. 
 query whether counter-claim is an independent action, 90. 
 third parties brought in by, 91. 
 
 (4.) Bepl!/, 92. 
 
 time for delivery of, ib. 
 
 time for deliveiy of, to counter-claim by a new defendant 
 
 who is brought in by counter-claim, is eight days, 
 
 E. S. C, Ord. XXU. r. 8. 
 joinder of issue, ib. 
 departure, 93. 
 reply to coimter-claim, ib. 
 
 (5.) Pleading subsequent to reply, 94. 
 
 (6.) Amendment of, 102. 
 when without leave, ib. 
 
 di.sallowance of, ib. 
 when leave necessary, ih. 
 compulsory, of scandalous or embarrassing pleadings, 103. 
 
 what is scandalous cr embarrassing, ib. 
 time for, 104.
 
 INDEX. 371 
 
 PLEADINGS— £•(/« t ill tied. 
 
 (6.) Amendment of — continued, 
 how made, 101. 
 
 effect of, on adversary's pleadings, ib. 
 (7.) Default of pleading . See Judument. 
 by plaintiff, 106. 
 
 POLICIES OF ASSURANCE, applications as to, granted 
 under Married Women's Property Act, 1870. .293. 
 
 POSSESSION, WRIT OF, 329. 
 PRESERVATION of property. Sec iNJimcnoN. 
 PRINTING of pleadings, 79. 
 PROCEEDINGS, obtaining leave to attend, 47. 
 PRODUCTION OF CESTUI QUE VIE, 306. 
 PRODUCTION OF DOCUMENTS. Sec Evidence. 
 PROTECTOR OF SETTLEMENT, when coui-t is the, 307. 
 
 QUESTIONS OF FACT. Sec Teial. 
 
 QUESTIONS OF LAW. Sec Demtjerer and Special Case. 
 
 RAILWAY COMPANIES. Sec Lauds Clauses Act. 
 
 RECEIVER, 
 
 mode of application for, 216. 
 
 should be claimed by writ, ib. 
 inquiry as to fitness of, ib. 
 giving seciu-ity, ib. 
 
 appointment of party to the action, 217. 
 refusal to hand over property to, ib. 
 interfering with, ib. 
 powers of, 218. 
 accounts of, ib. 
 
 procedure, ib. 
 
 failure to deliver, 219. 
 discharge of, ib. 
 
 Avill sometimes be appointed by way of execution where 
 sequestration inapplicable, 339. 
 
 RECOVERY OF LAND, 
 
 what claim can be joined with claim for, 32. 
 service of ■\vi'it of summons in action, 62. 
 
 B n2
 
 372 INDEX. 
 
 REFEREES. Sec Teial. 
 
 may demand a deposit of fees, 351. 
 
 REGISTRARS. See Teiai, and Judgment. 
 
 REGISTRIES. See Disteict Registeies. 
 
 REHEARING, See Appeal. 
 
 RELATOR. See Paeties. 
 
 generally necessary in actions by crown, 31. 
 
 may also be plaintiff, 32. 
 
 liable for costs, ib. 
 
 when dispensed with, ib. 
 
 miust be man of substance, ib. 
 
 when allowed his costs, 33. 
 
 REMOVAL. See Teansfee. 
 
 REPLY, 92. See Pleading. 
 
 REQUEST to Paymaster -General for a direction, 183. 
 
 RESTRAINING ORDERS, 302. 
 how obtained, 303. 
 
 REVIEWING TAXATION. See Costs. 
 
 SALE by the Court, 170 ct seq. See Chambees and Settled 
 Estates Act. 
 
 SCANDAL. See Pleadings. 
 SECURITY FOR COSTS, 30, 346. 
 
 SEQUESTRATION, 
 
 writ of, 327 et scq. 
 
 what it consists of, ih. 
 
 requires no leave, 328. 
 
 preparation and issue of, ib. 
 
 effect of, ib. 
 
 sequestrators must account, ib. 
 
 obtaining satisfaction out of sequestered property, 329. 
 
 discharge of, ib. 
 
 SERVICE. See Weit of Summons — Pleading— Judgment — 
 ExECLTioN, <S:c. 
 of proceedings when default made in appearance, 72. 
 affidavits of, 110, 144, 195, 212. 
 
 must be made before 6 p.m. on ordinary days, and 2 p.m. 
 on Saturdays, 349.
 
 INDEX. 373 
 
 SET-OFF. Sec Tleadino. 
 
 SETTLED ESTATES ACT, 
 objects of the, 2')0. 
 leases under, 2.51. 
 sales under, 252. 
 
 authoriziug streets to bo made, 253. 
 protection of estates under, ib. 
 practice on applications under, 254. 
 
 petition, ib. 
 
 petitioners, 255. 
 
 contents of petition, ib. 
 
 infant petitioners, 256. 
 
 lunatic petitioners, 257. 
 
 married women petitioners, 258. 
 
 examination of married women, ib. 
 
 naming' day for hearing, 262. 
 
 consent of iutcrested parties, ib. 
 
 consent of infants, lunatics and married women, 264. 
 
 where consent not obtained, 263. 
 
 dispensing with consent, 264, 265. 
 
 notice to trustees, ib. 
 
 petition need not be served, ib. 
 
 evidence on hearing, ib. 
 
 inquiries may be ordered, 265. 
 
 foi-m of order, 266. 
 
 order authorizing lease, ib. 
 
 payment of piu'chase-money, 267. 
 
 application of piu'chase-money, ib. 
 
 investment of purchase-money, 268. 
 
 costs, ib. 
 
 SETTLEMENTS. See Infants and rEOTECxoE. 
 
 SHIPS, ordering sale of share of unauthorized OAvner, 307. 
 
 SHORT CAITSE, 21, 140. 
 
 SHORT-HAND NOTES, use of, on appeal, 345. 
 
 SITTINGS of the Court, 347. 
 
 SOLICITORS, 
 
 retainer of. tScc Writ of Summons. 
 undertaking of, to accept service of writ, 59. 
 unauthorized action commenced by, 56. 
 application to strike off the roll, 296. 
 application to restore to the roll, 297. 
 taxing bills of costs of, ib. 
 
 lien of, on property recovered or preserved, 299. 
 how obtained, ib.
 
 374 INDEX. 
 
 SPECIAL CASE, 226 ct seq. 
 
 may be stated by agi-eement or compulsorily, 226. 
 
 mode of application for, 227. 
 printing, ib. 
 
 affidavit where parties under disability, ib. 
 agreement to pay fixed damages, ib. 
 setting down for argument, ib. 
 moving for judgment upon, 228. 
 abolition of old practice, ib. 
 
 STATEMENTS OF CLAIM, &c. See Pleadings. 
 
 STATUTE OF FRAUDS must be specifically pleaded, 87. 
 
 STAYING PROCEEDINGS, 
 
 where wrongly brought on behalf of infant, 40. 
 
 where parties do not disclose names, 35. 
 
 where brought on behalf of married woman, 37. 
 
 where security for costs ordered, 3G. 
 
 where several actions brought, 223. 
 
 on appeal, 346. 
 
 STOP ORDERS, 303. 
 effect of, ib. 
 how obtained, 304. 
 
 evidence on application, ib. 
 certificate of paymaster-general, ib. 
 office copy must be left at pay office, ib. 
 notice of all subsequent proceedings must be served on 
 party who has obtained a, 304. 
 
 SUBPCENA. See Evidence. 
 
 SUMMONS. See Chambers. 
 to proceed, 161. 
 
 on interlocutory applications, 2\Q et seq. 
 administration, 285. 
 
 TAXATION OF COSTS. Sec Costs. 
 
 TEST ACTION. Sec Consolidation. 
 
 THIRD PARTIES, 
 
 brought in by counter-claim, 91. 
 
 must plead within eight days, R. S. C, Old. XXII. r. 8. 
 
 THIRD P^VRTY, 
 
 notices, 75. 
 
 effect of, ib. 
 
 practice under, 76. 
 
 unnecessary whore defendant claims indemnity, &c. from 
 
 co-defendant, 77. 
 query whether third party can sei-ve fourth party, ib.
 
 INDEX. 375 
 
 TIME, 
 
 application for enlargement of, 229. 
 how calculated, 348. 
 
 Sunday when excluded from computation of, 348. 
 for delivery of various documents. ISee Pleadings — Evi- 
 dence. 
 for appeal. See Appeal. 
 
 TITLES, 
 
 Registration of, Act, 308. 
 Declaration of, Act, ib. 
 
 TRADE MARKS, registration of, 305. 
 
 TRANSFER of actions, 224. 
 
 from one division to another, ib. 
 
 from one judge to another, lb. 
 
 reason for, 225. 
 
 of administi'ation actions, ib. 
 
 from district registry to London, 22G. 
 
 from London to district registry, ib. 
 
 TRIAL, 
 
 separate, may be ordered of separate issues, 54, 138. 
 
 notice of, 136. 
 
 modes of, 137. 
 
 alteration in mode of, ib. 
 
 when a jury may be demanded, ib. 
 
 before ajuchje and junj, 139. 
 
 practically transferred to Queen's Bench Division, ib. 
 
 before a judge and assessors, 140. 
 
 before a judfje alone, ib. 
 
 short causes, ib. 
 
 notice of, 142. 
 briefs, ib. 
 
 party appearing in two capacities, 143. 
 order of proceedings, iJ>. 
 non-appearance at trial, 144. 
 affidavit of service, ib. 
 hearing in camera, 145. 
 before u referee, ib. 
 by consent, ib. 
 compulsorily, 146. 
 limited to trial of issues, ib. 
 
 report of referee equivalent to verdict of juiy, 147. 
 application for reference to referee, ib. 
 distribution of business among the referees, 148. 
 appointment by referee, ib. 
 authority of referee, ib. 
 requiring explanations from referee, 149. 
 remitting case to referee, ib. 
 refening matters to referee for inquiries only, ib. 
 
 court not bound to adopt report, ib.
 
 376 INDEX. 
 
 TRUSTEE ACTS, 242 et seq. 
 principal enactments of, ib. 
 
 ■where applications under, are made in lunacy, 244. 
 applicable to all constructive trustees, ib. 
 
 representatives of deceased insolvents, ih. 
 appointment of new trustees under, 245. 
 petitions vmder, 246. 
 
 evidence, 247. 
 
 several matters may be joined in one, lb. 
 
 in case of copyholds, ih. 
 
 hearing of, 248. 
 
 order upon, ib. 
 effect of vestiug orders, 248, 339. 
 stamping vesting orders, 248. 
 costs, 249. 
 action may be ordered to be instituted, ib. 
 
 TRUSTEES, 
 
 of bankrupt, claims by, 53. 
 
 application by, for judicial opinion, 234 et seq. 
 
 payment into court by, under Trustee Relief Act, 236. 
 
 effect of, 237. 
 
 form and contents of affidavit for, ib. 
 
 printing affidavit, 238. 
 
 direction of paymaster-general, ib. 
 
 notice to parties interested of payment, ib. 
 
 supplemental affidavit, 239. 
 
 petitions by parties interested, ib. 
 
 form and contents of petitions, ib. 
 
 service of petitions, 240. 
 
 inquiry may be ordered on hearing of petition, ib. 
 
 several petitions, ib. 
 
 costs of trustees on, ib. 
 
 trustee's accounts cannot be disputed on petition, 241. 
 
 dissentient trustees, ib. 
 
 UNSOUND MIND, PERSONS OF. i>ee Paeties— Teustee 
 Acts — Settled Estates Act. 
 
 VACATIONS, 347. 
 
 VENDORS AND PURCHASERS ACT, 
 
 applications under, 293. 
 what applications may be made under, 294. 
 whether applicable where facts are contested, ib. 
 appeal from, must be brought within twenty-one days, 
 295. 
 
 VERDICT. See Teial.
 
 INDEX. .'{7 
 
 VESTING ORDERS. AV^ Tbustek Acts. 
 
 in actions wheix- defendant rvfu^toH to convey, 33'J. 
 
 WANT OF PROSECUTION, diamiHsiug action for, 100, 136. 
 
 WARD OF COURT, 
 
 infants how made, 278. 
 
 marriage of, without consi-nt, 280. 
 
 eonst'nt liow obtjiintsJ, ih. 
 
 preparation of settlements, ib. 
 
 WITNESS. See Evidence. 
 WRIT. See Execution. 
 
 WRIT OF SUMMONS, 
 form of, 26. 
 
 for service out of the jurisdiction, 28. 
 parties to. A'e<' Parties. 
 teste of, 27. 
 
 memorandum of .ser\'ice of, 28. 
 memorandum as to entry of appeanmce must state place 
 
 or places, R. S. C, Ord. V. rr. 2, 3. 
 preparation of, ib. 
 amendment of, 29. 
 indorsement of claim on, 28, 51. 
 
 of liquidated demand, 51. 
 
 special, ib. 
 
 misjoinder of, 52. 
 
 joinder of joint and sevonil, tl>. 
 
 by or againist husband and wife, also against one of 
 them, ib. 
 
 for recovery of land, ib. 
 
 what may be joined with claim for recovery of land, 
 53. 
 
 claims by trustees in bankruptcy, if>. 
 
 claims by or again-st executors, ib. 
 
 leave to join prohibited claims, how obtiuued, ib. 
 
 striking out misjoined claims, ib. 
 
 inconvenient joinder of clauns, 54. 
 
 separate trials of separate cLiims ordered, ib. 
 
 separate actions for separate claims ordered, ib. 
 
 amendment of, ib. 
 
 when necessary, lA. 
 
 appliwitiou to amend after notice of trial, 55. 
 issue of, ib. 
 
 solicitor's retainer, ib. 
 
 unauthorized issue by solic^itor, 56. 
 
 sealing by proper officer, ib. 
 
 sealing for service out of jurisdiction, 57. 
 
 concurrent writs, 58. 
 
 rcscaliug after new parties added, ib. 
 U. t" V
 
 378 INDEX. 
 
 WRIT OF SJjyi^lO:sS-co>itinued. 
 service of, 59. 
 
 accepted by solicitor, ib. 
 
 personal, ib. 
 
 on married women, ib. 
 
 on infants, ib. 
 
 on lunatics, ib. 
 
 on partners, 60. 
 
 on foreigTiers, ib. 
 
 on companies, ib. 
 
 on inhabitants of counties, &c., 61. 
 
 in actions of ejectment, 62. 
 
 substituted servdce, ib. 
 
 must be served Tvithin twelve months from issue, but 
 
 may be renewed bv leave for six months more, 
 
 E. S. C, Ord. \^II. rr. 1, 2. 
 indorsement of service, 63. 
 
 time for, may be extended, ib. 
 
 C. F. EOWOETH, PEINTEB, BEEAM'B BUTLDIJfGS, CHAXCEEY LANE.
 
 CATALOGUE 
 
 OF 
 PUBLISHED BY 
 
 MESSRS. « U T T E R W R T II , 
 
 Sab itJoofegcUcrg nnU ^ublisfjcrs 
 
 TO THE QUEEN'S MOST EXCELLENT MAJESTY, 
 
 AND TO 
 
 H.R.H. THE PRINCE OF WALES. 
 
 " Now for the Laics of England [if I shall speak my opinion of thevt u-ilhoul 
 "partiality either to my profession or country/, for the matter and natute of 
 " them, I hold them wise, just and moderate lau-s: they give to God, they give to 
 " Ccesar, they give to the subject what appertainelh. It is true they are as mixt 
 " as our language, rompounded of British, Saxon, Danish, A'orman customs. 
 " And surely as our language is thereby so muck the ricner, to our laws are like- 
 " wise by that mixture the more ctimplete." — Lobd Bacon. 
 
 LONDON : 
 
 7, FLEET STEEET, E.G. 
 
 1882.
 
 INDEX TO CATALOGUE. 
 
 Fage 
 Accounts. 
 
 Pulling 36 
 
 Action, Conunon Law. 
 
 Boyle 13 
 
 Admiralty Practice, 
 
 Coote 19 
 
 Advowsons. 
 
 Mirehouse 37 
 
 Agricultural Holdings 
 Act. 
 
 Bund 10 
 
 Alabama Case. 
 
 O'Dowd 36 
 
 Aliens. 
 
 Cutler 19 
 
 Ancient Land Settle- 
 ment. 
 
 Bund 38 
 
 Appeals, House of Lords 
 
 Denison & Scott ... 6 
 Arbitration. 
 
 Redman 20 
 
 Articled Clerks' Hand- 
 book. 
 
 Mosely 18 
 
 Attachment. 
 
 Brandon 27 
 
 Average, General. 
 
 Cnimp 6 
 
 Awards. 
 
 Redman 20 
 
 Bankruptcy. 
 
 Bulley & Bund ... 29 
 
 Linklkter 37 
 
 Robson 19 
 
 Banks and Banking. 
 Grant 12 
 
 Barbados . Laws of . . . 37 
 
 Bar Education. 
 
 Smith 27 
 
 Bar Examination 
 Journal 34 
 
 Bills of Sale. 
 
 Hunt 10 
 
 Macaskie 40 
 
 Blockade. 
 
 Deane 37 
 
 Bonds, Probate. 
 
 Chadwick 8 
 
 ... 28 
 Evi- 
 
 27 
 
 Page 
 Bookkeeping, Solici- 
 tors' . 
 
 Coombs 28 
 
 Boundaries. 
 
 Hunt 33 
 
 Burgesses' Manual. 
 
 Gaches 38 
 
 Carriers, Inland. 
 
 PoweU 10 
 
 Chamber Practice. 
 
 Parkinson 38 
 
 Chancery Practice. 
 
 Underbill 15 
 
 Chart of Landed Pro- 
 perty. 
 
 Feame 38 
 
 Church Building Acts. 
 
 Trower 29 
 
 Church Seats. 
 
 Heales 
 Circumstantial 
 dence. 
 
 Wills 
 
 Civil Service of India. 
 
 Cutler 34 
 
 Claims and Defences. 
 
 Drewry 7 
 
 Commentaries. 
 
 Blackstone's ... 5 
 
 Stephen's 5 
 
 Commentaries on Inter- 
 national Law. 
 
 T hillim nre 14 
 
 Common Law Action. 
 
 Boyle 13 
 
 Common Law Practice. 
 
 Lush 36 
 
 Companies, Banking. 
 
 Grant ... _ ... 12 
 Companies, Joint- Stock 
 
 Shelf ord ..._ ... 7 
 Companies, Railway. 
 
 Shelf ord 12 
 
 Compensation for Land . 
 
 Ingram 24 
 
 Consistory Court, Lon- 
 don. 
 
 Rules and Regula- 
 tions 
 
 Conspiracy. 
 
 Wright 
 
 36 
 
 35 
 
 Page 
 Constitutional History. 
 
 Fulton 17 
 
 Contentious Probate 
 
 Practice. 
 
 Tristram 11 
 
 Contraband of "War. 
 
 Moseley 27 
 
 Twiss 35 
 
 Contracts. 
 
 Plumptre 23 
 
 Contributories. 
 
 CoUier 33 
 
 Conveyancing. 
 
 Barry 23 
 
 Crabb 19 
 
 Lewis 14 
 
 Rouse 18 
 
 Conveyancing Act, 1881 
 Gierke & Brett ... 32 
 1882... 49 
 
 Conveyancing Drafts- 
 man. 
 
 Kelly 20 
 
 Convictions, Summary. 
 
 Paley 5 
 
 Co-operative Societies. 
 Brabrook 28 
 
 Copyhold Enfranchise- 
 ment. 
 Rouse 28 
 
 Copyholds. 
 
 Scriven 16 
 
 Corporations, Law of. 
 
 Baxter 40 
 
 Costs. 
 
 Gray 36 
 
 County Court Practice. 
 
 Dims 8 
 
 Criminal Consolida- 
 dation Acts. 
 
 Davis 25 
 
 Customs Laws. 
 
 Hamel 7 
 
 Debtors Estates. 
 
 Pye ... 11 
 
 Defences and Claims. 
 
 Drewry 7 
 
 Dictionaiy, Law. 
 
 Mozley & Whiteley 9 
 Divorce. 
 
 Bedford 13 
 
 Browning 34
 
 INDEX TO CATALOGUE. 
 
 I'aije 
 Domestic Servants. 
 
 Bayliu 26 
 
 Draftsman, Convey- 
 ancing. 
 KeUy 20 
 
 Drainage Acts. 
 
 Woolr>xh 22 
 
 Drainage of Land. 
 
 WUson 38 
 
 Ecclesiastical Law. 39 
 
 Employers and Work- 
 men. 
 Davis 6 
 
 Employers' Liability 
 Act. 
 Euegg 33 
 
 England, Lawaof. 
 
 Stephen 6 
 
 English Appeals. 
 
 Denison i: Scott ... 6 
 
 English Law. 
 
 Francillon 38 
 
 Nasmith 16 
 
 Etpiity. 
 
 Drewry 27 
 
 Hunter 38 
 
 Roberts 7 
 
 Trower 9 
 
 UnderhiU 16 
 
 Equity, Claims and 
 Defences. 
 
 DrewTy 7 
 
 Equity in relation to 
 Law. 
 
 Chute 8 
 
 EN-idence. 
 
 I'oweU G 
 
 Wills 27 
 
 Examination Guide. 
 Bedford 13 
 
 Fences. 
 
 Hunt 33 
 
 Fishery Laws. 
 
 Bund 29 
 
 Oke 31 
 
 Foreshores. 
 
 Hunt 33 
 
 O'Dowd 36 
 
 Form of the Law. 
 
 Holland 35 
 
 Frauds. 
 
 Hunt 10 
 
 Page 
 
 Freedom of Land. 
 
 Underbill 36 
 
 Game Laws. 
 
 Oke 30 
 
 Gas & "Water Supply. 
 Michael & Will ... 22 
 
 General Average. 
 
 Cnuap 6 
 
 Guarantees. 
 
 DeColyar 9 
 
 Hand Book for Articled 
 Clerks. 
 
 Mosely 18 
 
 House of Lords, Ap- 
 peals. 
 
 Denison & Scott ... 6 
 
 Income Tax Laws. 
 
 Dowell 25 
 
 Indian Law. 
 
 Cutler &Griflto ... 18 
 
 Industrial Societies. 
 Brabrook 28 
 
 Inns of Court. 
 
 Pearee 37 
 
 Institutes of English 
 Law. 
 Nasmith 16 
 
 Insurance, Marino. 
 
 Crump 6 
 
 International Law. 
 
 Hamel 36 
 
 Phillimore 14 
 
 Irish Appeals. 
 
 Denison & Scott ... 6 
 
 Joint Stock Companies. 
 Shelf oi-d 7 
 
 Judicature Acts. 
 
 Baxter 40 
 
 Bedl'oi-d 13 
 
 Labour Laws. 
 
 Davis 6 
 
 Landlord and Tenant. 
 
 Fawcett 10 
 
 Land Law. 
 
 UnderhiU 35 
 
 Underbill 40 
 
 Law Dictionary. 
 
 Mozley & Whiteley , 9 
 Law Examination 
 Journal. . . 32, 40 
 
 Leading Caaes, Real 
 Property. 
 
 Tudor 17 
 
 Leading Statutes. 
 
 Bedford 13 
 
 Legacy Duties. 
 
 Shelf ord 26 
 
 Libel. 
 
 Folkard 10 
 
 Licensing Laws. 
 
 Oke 31 
 
 Locus Standi Reports. 
 
 Cbfford & Hickarda 21 
 
 Clifford 4: SUphens. 21 
 
 Lord Lyndhurst. 
 
 Gibson 37 
 
 Lunacy. 
 
 Phillips .'54 
 
 Magisterial Formulist. 
 
 Oke 31 
 
 Magisterial Synopsis. 
 
 Oke 30 
 
 Marine Insurance. 
 
 Crump 6 
 
 Masters and Servants. 
 
 Baylis 26 
 
 Masters and Workmen. 
 
 Davis 6 
 
 Lovesy 35 
 
 Mayor's Court. 
 
 Brandon 27 
 
 Mercantile Accounts. 
 
 PuUing 36 
 
 Mines and Mineralw. 
 
 Bainbridge 16 
 
 Mortgages. 
 
 lYsher 12 
 
 Municipal Corporations 
 
 Baxter 40 
 
 Municipal Eegistra- 
 tion. 
 
 Davis 22 
 
 Naturalization. 
 
 Cutler 19 
 
 Naval Prize Law. 
 
 Lushington 27 
 
 Negligence. 
 
 Sjiunders 21 
 
 Parliamentarj' Practice. 
 
 May 17 
 
 Parliamentary Regis- 
 tration. 
 
 Davis 22 
 
 a2
 
 INDEX TO CATAXOGUE. 
 
 Page 
 
 Partition Act. 
 
 Lawrence 29 
 
 Partnership. 
 
 Dixon 22 
 
 Pothier 37 
 
 Patents. 
 
 Higgins 25 
 
 Norman 37 
 
 Pews. 
 
 Heales 28 
 
 Pleading. 
 
 Cliittv 35 
 
 Williams 37 
 
 Preliminary Exami- 
 nation Joixrual. 
 
 Benham 34 
 
 Bedford 13 
 
 Principal and Surety. 
 
 De Colyar ... .~.. 9 
 Prize Law, Naval. 
 
 Lushingion 27 
 
 Probate and Divorce. 
 Bedford 13 
 
 Probate Bonds. 
 
 Chadwick 8 
 
 Probate Duties. 
 
 Shelf ord 26 
 
 Probate Practice. 
 
 Coote 11 
 
 Tristram 11 I 
 
 Railway Carriers. 
 
 Powell 10 
 
 Railways. 
 
 Shelford 12 
 
 Real Property. 
 
 Tudor 17 
 
 Real Property Act. 
 Clerks & Brett 
 
 Page 
 
 .. 32 
 
 Referees' Practice. 
 Clifford & Rif-kard.s 21,40 
 Clifford i: Stephens ... 21 
 
 References under Judi- 
 cature Acts. 
 Redman 21 
 
 Regi.stration. 
 
 "Dai-i.< 22 
 
 Roman Law. 
 
 Gains 27 
 
 Ortolan 20 
 
 Tomkins 26 
 
 Tonikins & Jencken 11 
 
 Sale, Bills of. 
 Macaskie 
 
 . 40 
 
 Salmon Fisheries. 
 Bund 
 
 . 29 
 
 Scotch Appeals. 
 Denison li: Scott . 
 
 . 6 
 
 Settled Land Act. 
 
 Underhill ... 
 Sewers. 
 
 Woohych . . 
 Sheriff. 
 
 SeweU 
 
 . 40 
 . 22 
 . 38 
 
 Short Hand. 
 Gumey 
 
 . 38 
 
 Slander. 
 Folkard 
 
 . 11 
 
 Solicitors" Bookkeeping 
 Coombs 28 
 
 Statutes, Leading. 
 Bedford 
 
 . 13 
 
 Stock Exchange. 
 Keyser 
 
 . 37 
 
 ; _ Page 
 
 j Succession Duties. 
 
 I Shelford 26 
 
 I Summary Convictions. 
 ' Paley 5 
 
 Surety and Principal. 
 De Colyar 9 
 
 Tariffs. 
 
 Hertslet 24 
 
 Torts. 
 
 Underliill 15 
 
 Town Councillors' 
 3Ianual. 
 Gaches 38 
 
 Trade Marks. 
 
 Adanxs 16 
 
 Treaties. 
 
 Hertslet ... 24,40 
 
 Trusts and Trustees. 
 Underhill 15 
 
 Turnpikes. 
 
 Oke 31 
 
 Vendors & Purchasers. 
 Seaborne 26 
 
 Water and G-as Supply. 
 Michael & "Will ... 22 
 
 Wills. 
 
 Wigram 29 
 
 Winding-up. 
 
 Collier 33 
 
 Wrongs. 
 
 Underhill 15
 
 %'dixf ^'clorL'j publi.'iljfb bn ?l:]ffifir,s'. JGuttrrtoortlT. 
 
 STEPHEN'S NEW COMMENTARIES.-Sth Edit. 
 
 Mu. SEIUEANT STErHEN'S NEW COMMEN- 
 TAEIP]S ON THE LAWS OF ENGLAND, partly founded 
 on Blackstone. 13y James Stephen, Esq., LL.D., Judge of 
 County Courts. The Eighth Edition. Prepared for tho preas 
 bv Uenry St. James Stephen, of the Middle Temple, Barrister- 
 at-Law. 4 vols. Svo. 4/. 48. cloth. 1880 
 
 *«• The Work selected for the Intomipdiiite Examinations for Solicitors for 
 
 l!«i'2 and 1883. 
 
 From tke "Law Times." 
 
 " Dr. James Stephen has just brouf»ht 
 out tho eighth edition of Mr. Serjeant 
 Steplien'.s f'ommentarie.s on tlic Ijiws 
 of Enfjland (founded on lUackstone;. 
 This edition de.^erves more attention 
 than previous editions, for the reason 
 tliat it has been revised wnth a ^^ew to 
 fri%nnf,' full olfort to the alterations in 
 our lav.- and practife introduced by the 
 .Judicature Acts, and with the desi^'n of 
 si^'inK' a more scientific classification of 
 crimes, so as to biing the last book into 
 harmony with the ffcneral structure 
 of the projjosed Criminal Code. Dr. 
 ISfcpheu lias been as-sisted in his work by 
 his son, Mr. Henrj- St. .lames Stephen. 
 From our examination of the work 
 (facilitated by the adoption of the 
 -Vmerican plan of cutting the leaves in 
 the bindiiifTi , we believe it will be found 
 to bo one of the most valuable text 
 books which we possess, not only as to 
 the general law, V)ut as to the new sys- 
 tem which has grown up tmder the 
 Judicature Acts." 
 
 From the " I^^w Journal." 
 "It is quite unnecessary for tis to 
 reiterate the praises we have, on many 
 foniier occju-ions, bestowed upon thu 
 excellent work. A new edition has 
 been rendered necessai-y, both by reason 
 of the last edition ha\ing been ex- 
 hausted, and of the recent changes in 
 the law eifected by the operation of the 
 Judicature Acts ; and Dr. Stephen has 
 not shirked the labour required. The 
 last edition was published in the year 
 1.S74 ; and. although the changes then 
 intended to be introduced by tho Ju- 
 dicature Act of 1873 were emiiodied in 
 it, yet the subsequent .ludicature Acta 
 iind new rules of procedure, supple- 
 mented by judicial decisions upon them, 
 have made Dr. Stephen's task of ro- 
 \ision no light one." 
 
 l''rom the "Articled Clerks Journal." 
 "We feel bound to state that tho 
 edition (Eighth) before us is certain to 
 maintain, witli greater credit if possible, 
 the po.sition of its predecessors, which 
 is that of the Student's best text-book 
 on the General Laws of England." 
 
 PALEY'S SUMMARY CONVICTIONS. 6th Edition. 
 
 THE LAW and rjJAC'ricE ( »E SUMMAKY CON- 
 VICTIONS under tho SUMMARY JURISDICTION ACTS, 
 1848 and 1879, including proceedings preliminuiy and stibso- 
 quent to Convictions, and tho responsibility of Convicting 
 Magistrates and their Officers : with Eonns. Sixth Edition. 
 By Walter H. Macnamara, Esq., of tho Inner Temple, Bar- 
 rister-at-Law. In 1 vol. 8vo. 24«. cloth. 1879
 
 LAW WORKS PUBLISHED BY 
 
 POWELL ON EVIDENCE. By CUTLER & GRIFFIN. 
 
 — Fourth. Edition. 
 
 POTVELL'S PEIXCIPLES and PEACTICE of the 
 LAW of ETIDEXCE. Fourtli Edition. By J. Cutler, B.A., 
 Professor of English. Law and Jurisprudence, and Professor of 
 Indian Jurisprudence at King's College, London, and E. P. 
 GRirury, B.A., Banisters-at-Law. Post 8to. 18s. cloth. 1875 
 
 "There is hardly any branch of the changes have been effected of recent 
 
 law of greater interest and importance, years. "We are, therefore, all the more 
 
 not only to the profession, but to the inclined to ■welcome the appearance of 
 
 public at large, than the law of evidence. the Fourth Edition of this valuable 
 
 On this branch of the law, moreover, work." — Lov- Exominntion Journal. 
 all well as on many others, important 
 
 DENISON AND SCOTT'S HOUSE OF LORDS APPEAL 
 PRACTICE. 
 
 APPE.1LS TO THE HOUSE OF LOEDS: Procedure 
 
 and Practice relative to English., Scotch and Irish Appeals ; with 
 the Appellate Jurisdiction Act. 1876 ; the Standing Orders of 
 the House ; Directions to Agents ; Forms, and Tables of Costs. 
 Edited, with Xotes, Eeferences and a full Index, forming a 
 complete Book of Practice under the New Appellate System. 
 By Chas. Marsh Dexisox and Chas. Hexdersox Scott,' of the 
 Middle Temple, Esqs.. Barristers-at-Law. 8vo. 16s. cloth. 1879 
 
 " The most important portion of the the construction of the ultimate Court 
 
 work, viz., that concerning' the Proce- of Appeal, there are no two opinions as 
 
 dure and Practice on Appeal to the to the position which it holds in the 
 
 House of Lords, contains information confidence of the profession and the 
 
 of the most important kind to those public. A learned introduction gives a 
 
 gentlemen who have business of this brief but sufficient historical sketch of 
 
 nature; it is well and ably compiled, the jurisdiction of the House of Lords, 
 
 and the practitioner will find no diffi- This is followed by a practical treatise, 
 
 cnlty in following the various steps which is a complete and well-written 
 
 indicated. guide to the procedure by which an 
 
 " The whole book is well and carefully Appeal is be^iin, continued", and ended, 
 
 prepared, and is unusually readable in including an important chapter on 
 
 its style." — Justkf of the Peace. Costs. In an Appendix are given the 
 
 " This is a small volume upon a sub- Act of 1876, the portions of the Supreme 
 
 ject of the greatest practical interest at Court of Judicature (Ireland Act, 1S77, 
 
 the present time, for, notwithstanding and the Scotch Statutes, Forms, and 
 
 the changes which have been made in Bills of Costs." — Law Tiines. 
 
 DAVIS'S LABOUR LAWS OF 1875. 
 
 THE LABOUE LAWS OF 1875, with Introduction 
 and Notes. Br J. E. Davis, Esq., Barrister-at-Law, and late 
 Pohce Magi.?trate for Sheffield. 8vo. 12.s. cloth. 187o 
 
 CRUMP'S PRINCIPLES OF MARINE INSURANCE 
 
 THE PEEN'OIPLES OF THE LAW EELATING TO 
 MARIXE IXSUEAXCE AXD GEXER.IL A^'ERAGE in 
 England and America, with occasional references to French and 
 German Law. By F. Octatius Crump, of the Middle Temple, 
 Esq., Barrister-at-Law. In 1 vol. royal 8vo. 21s. cloth. 1875
 
 MESSRS. BUTTERWORTII, 7, FLEET STREET, E.G. 
 
 HAMEL'S CUSTOMS LAWS. 
 
 THE LAWS OF THE CUSTOMS, 1876, consolidntod 
 by direction of tho Ijords Commissioners of her Mujusty's 
 Treasury. With jiracticul Notes and References throuf^hout ; 
 an Appendix contuininf; various Statutory Provisions incidental 
 to the Customs; the Customs Tariff Act, 187G, and a Copi(;u8 
 Index. With Supplement to 1881. By Fklix Joun Ham el, 
 Esq. Post 8vo. 3s. Gd. cloth; demy Svo. 4a. 6d. 1881 
 
 SHELFORD'S JOINT STOCK COMPANIES.— 
 Second Edition by PITCAIRN and LATHAM. 
 
 SHELFOED'S LAW of JOINT STOCK COMPANIES, 
 containing a Digest of tho Case Law on that subject; the Com- 
 jianies Acts, 18G2, 18(37, and other Acts relating to Joint Stock 
 Companies ; the Orders made under those Acts to regulate Pro- 
 ceedings in the Court of Chancery and County Courts; and Notes 
 of all Cases interpreting tho above Acts and Orders. Second 
 Edition, much enlarged, and bringing the Statutes and Cases 
 down to the date of publication. By David Pitcaikn, M.A., 
 Fellow of Magdalen College, Oxford, and of Lincoln's Inn, 
 Barrister-at-Law, and Francis Law Latham, B.A., Oxon, of 
 tho Inner Temple, Barrister-at-Law, Author of "A Treatise on 
 tho Law of Window Lights." Svo. 21s. cloth. 1870 
 
 DREWRY'S FORMS OF CLAIMS AND DEFENCES. 
 
 POEMS OF CLAIMS AND DEFENCES IN CASKS 
 intended for tho CHANCERY DIVISION OF THE HIGH 
 COURT OF JUSTICE. With Notes, containing an Outline of 
 the Law relating to each of the subjects treated of, and an 
 Appendix of Forms of Endorsement on tho Writ of Summons. 
 By C. Stewart Drewry, of the Inner Temple, Esq., P.arrister- 
 at-Law, Author of a Treatise on Injunctions, and of Reports of 
 Cases in Equity, temp. Kindersley, V.-C, and other works. Post 
 Svo. 9s. cloth. 1876 
 
 " Mr. Brewry's plan of takinp the day, who, however experienced in tho 
 
 facts for the forms from reported cases niceties of the past syHteiii, cannot l>ut 
 
 and adapting them to the new rules of need the slid i,t a work tlius compiled, 
 
 pleadintr, seems the best that can be and, trustintr to its guidance, bencHt in 
 
 adopted. The forms we have looked at time and labour saved; while to tho 
 
 .seem to be fairly correct." — Solicilom' younper members of the profesoion e»- 
 
 Jimrnal. pecially wc cordially rec<jmmend the 
 
 " The equity draftsmen of the present work."— /rwA Law Times. 
 
 ROBERTS' PRINCIPLES OF EQUITY.- Third Edition. 
 THE PEINCIPLES OF EQUITY as administered in 
 tho SUPREME COURT OF JUDICATURE and other Courts 
 of Equitable Jurisdiction. By Thomas Akchidald Roberts, 
 of the Middle Temple, Esq., Barrister-at-Law. Third Edition. 
 Syo. 18s. cloth. 1877
 
 LAW WORKS PUBLISHED BY 
 
 DAVIS'S COUNTY COURTS PRACTICE & EVIDENCE. 
 
 —Fifth Edition. 
 
 THE PEACTICE AND EVIDENCE IN ACTIONS 
 IN THE COUNTY COUETS. By James Edward Dayis, of 
 the Middle Temple, Esq., Barrister-at-Law. Fifth Edition. 8vo. 
 38s. cloth : 43s. calf. 1874 
 
 DAVIS'S COUNTY COURT RULES AND ACTS OF 1875 
 and 1876. 
 
 THE COUNTY COUET EULES, 1875 and 1876, 
 vrith. Forms and Scales of Costs and Fees; together with the 
 County Coui-ts Act, 1875, and other recent Statutes affecting the 
 Jui'isdlction of the County Courts. Fonning a SUPPLEMENT 
 to the Fifth EcUtion of the COUNTY COUET PEACTICE and 
 EVIDENCE, but entirely complete in itself. By James Edwajrd 
 Dayis, of the Middle Temple, Esq., Barrister-at-Law. In 1 vol. 
 8yo. 16s. cloth. 1876 
 
 DAVIS'S EQUITY AND BANKRUPTCY IN THE 
 COUNTY COURTS. 
 
 THE JUEISDICTION & PEACTICE of tlie COUNTY 
 COUETS in Equity (including Friendly Societies), Admiralty, 
 Probate of Wills, Administration, and in Bankruptcj'. By J. E. 
 Dayis, of the Middle Temple, Esq., Bai-rister-at-Law. 1 Yol. 8vo. 
 18s. cloth; 22s. calf. 1872 
 
 CHADWICK'S PROBATE COURT MANUAL. 
 Corrected to 1876. 
 
 EXAMPLES of ADMINT:STEATI0N BONDS for the 
 COUET of PEOBATE ; exhibiting the principle of various Grants 
 of Administration, and the correct mode of preparing the Bonds in 
 respect thereof ; also Directions for preparing the Oaths; arranged 
 for practical utility. With Extracts from Statutes ; also various 
 Forms of Affirmation prescribed by Acts of Parliament, and a Sup- 
 plemental Notice, bringing the work down to 1876. By Samuel 
 CnADWlCK,of her Majesty's Court of Probate. Eoy. 8vo. 12s. cloth. 
 
 CHUTE'S EaUITY IN RELATION TO COMMON LAW. 
 
 EQUITY UNDEE THE JUDICATUEE ACT, or the 
 Eolation of Equity to Common Law. By Ciialoxer William 
 Chute, Barrister-at-Law; Fellow of Magdalen College, Oxford; 
 Post 8vo. 9s. cloth. 1874
 
 MESSRS. BUTTKKWORTH, 7, FLEET STREET, E.G. 9 
 
 MOZLEY AND WHITELEY'S CONCISE LAW 
 DICTIONARY. 
 
 A CONCISE l.AW DK'TIONAllY, containin- Sliort 
 iind Simpln Definitions of the Tornis used in tlio Law. By 
 IIerhkut Newmax Mozlhy, M.A., Fellow of King's College, 
 Cambriilgo, and of Lincoln's Inn, lvs(]., and Geouoe f'uiSPE 
 WlllTELEY, M. A., Cantab, of the Middle Temple, Esq., Barristors- 
 at-Law. In 1 vol. 8vo. 20s. cloth; 2os. browTi calf. 187G 
 
 "Tliis book is a great deal more 
 niodost in its views than the law dic- 
 tionary we ^e^^ewed a little while a^i'. 
 Its main objeet is to expliun brietly 
 leg;al tenus, both ancient and modem. 
 In many cases, however, the autlim-s 
 have added a concise statement of tlie 
 law. But, as the work is intended both 
 for lawjers and the public at lar^re, it 
 does not profess to give moi-e than an 
 outline of the doctrines refened to under 
 the several headiu!;s. Ilavin;,' rcfrard to 
 this dcsifni, we think the work is well 
 and itu-efully edited. It Ls exceedinf.'ly 
 complete, not only gi\'infj: terse explana- 
 tions of Icf^al plu'ases, but also notices of 
 leailins? cases and short biofjiaphies of 
 le?al luminaries. AVe may add that a 
 veiy convenient table of reports is fri ven, 
 showing- the abbre\-iations, tlie date and 
 the court, and that the book is vcrj- well 
 printed." — iSolkitors' Journal. 
 
 "Tliis book contains a large mass of 
 infonnation more or Icjis useful. A 
 consideralile amount both of labour and 
 leaniintf has evidently In-en expended 
 upon it, and to the gencnil public it may 
 be recommended a-s a reliable and use- 
 ful guide, l^aw students desirous of 
 criimming will also Und it acceptable." 
 — I, aw Tiiius. 
 
 " It should pontain cverj-thing of 
 value to be found in the other larger 
 works, and it should be useful not 
 merely to the legal profession, but also 
 to tlic general i)uhlic. Now, the work 
 of JIi-.s>rs. Mo/ley and ^V^nteley appeain 
 to fullil tho.sc very conditions; and, 
 while it assists the lawj-cr, will bo no 
 less u.scfid to his client. On the whole, 
 we rci)cat tliat the work is a pniisc- 
 worthy pefonnancc which deserves a 
 place in the libraries both of the legal 
 profe.>isi()n and of the general public. — 
 Irish Law Times. 
 
 DE COLYAR'S LAW OF GUARANTEES. 
 
 A TREATISE ON THE LAW OF GUARANTEES 
 and of PRINCIPAL and SURETY. By Henry A. De Colyak, 
 of the Middle Temple, Barrister-at-Law. Hvo. 14s. cloth. 1874 
 " Mr. Colyar's work contains internal " Tlie whole work disjilays great care 
 
 evidencethat he is quite at home with his in its production ; it is clear in its state- 
 subject. His book has the great merit of ments of the law, an<l the result of the 
 thoroughness. Hence its present value, many authorities collecti-d is stated 
 and hence we venture to predict will be with an intelligent appreciation of the 
 its enduring reputation." — Law Times. subject in hand."— Justice o/ Ihc I'eace. 
 
 TROWER'S PREVALENCE OF EaUITY. 
 
 A MANUAJ. OF THE PEEVALENCE OF EQinTY, 
 
 under Section 25 of the Jndicature Act, 1873, amended by the 
 Judicature Act, 1875. By Ckaules Francis Trower, Esq., 
 M.A., of the Inner Tem])le, Barri.stor-at-Law, lato Fellow of 
 Exeter College, and Vinerian I^aw Scholar, Oxford, Author of 
 " The Law of Debtor and Creditor,"' " The l..aw of the Ihiilding 
 of Churches and Divisions of Parishes," &c. 8vo. 5«. cloth. 187(3 
 
 "The amount of infonnation cfin- 
 tained in a compressed form ■within its 
 piiges is very considerable, and on the 
 
 whole it apiH-ani to Ik' accurate. The 
 work has been carefully rcnsed, and is 
 well and clearly print43d." — Law Timt*.
 
 10 LAW WOEKS PUBLISHED BY 
 
 FAWCETT'S LAW OF LANDLORD AND TENANT. 
 
 A COMPENDIUM OF THE L.\AV OF L.INDLOED 
 AXD TEXAXT. By Willli^i Mitchell Fawcett, Esq., of 
 Lincoln's Inn, Barrister-at-La-w. 1 vol. 8yo. 14s. cloth. 1871 
 
 " This new compendium of the law on tions, and uses language as untechnical 
 
 a wide and complicated subject, upon as the subject admits." — Law Journal. 
 which information is constantly re- " Mr. Fawcett takes advantage of this 
 
 quired by a vast number of persons, is characteristic of modem law to impart 
 
 sure to be in request. It never wanders to his compendium a degree of authen- 
 
 from the point, and being intended not iicity which greatly enhances its value as 
 
 for students of the law, but for les-sors a convenient medium of reference, for 
 
 and lessees, and their immediate ad- he has stated the law in the very words 
 
 visers, wisely avoids historical disquisi- of the authorities." — Law Magazine. 
 
 HUNT'S LAW OF FRAUDS AND BILLS OF SALE. 
 
 THE LAW relating to FEAUDL^LEXT COX^T^Y- 
 AXCES under the Statutes of Elizabeth and the Bankrupt Acts ; 
 ■with Eemarks on the Law relating to Bills of Sale. By Arthitr 
 Joseph Hr^N'T. of the Inner Temple, Esq., Barrister-at-Law, 
 Author of ' ' A Treatise on the Law relating to Boundaries, Fences 
 and Foreshores." Post Svo. 9,s. cloth. 1872 
 
 " Mr. Hunt has brought to bear upon subjects of the work." — Law Magazine. 
 
 the subject a clearness of statement, "Mr. Hunt's book is as readable a.s 
 
 an orderliness of arrangement and a a treatise on so technical a subject can 
 
 subtlety of logical acuteness which weU be made. Mr. Himt's arrange- 
 
 carry him far towards a complete sys- ment of his materials follows an orderly 
 
 tematization of all the cases. Neither and intelligible plan. The index is 
 
 has his industry been lacking ; the cases apparently carefidly prepared, and the 
 
 that have arisen under ' The Bank- table of cases shows that none of the 
 
 ruptcy Act, 1869,' and under the BiUs recent cases have been overlooked. Mr. 
 
 of Sale Act, have been caref iiUy and Hunt has produced a really useful book 
 
 completely noted up and disposed by unencumbered by useless matter, which 
 
 him in their appropriate places. The deserves great success as a manual of 
 
 index also is both accurate and careful, the law of fraudulent dispositions of 
 
 and secures much facility of reference property." — Law Journal. 
 to the various matters which are the 
 
 BUND'S AGRICULTURAL HOLDINGS ACT, 1875. 
 
 The LAW of COMPEXSATIOX for F^XEXHAUSTED 
 AGEICULTL"E.U:. IMPEOYEMEXTS, as amended by the 
 Agricultural Holdings (England) Act, 1875. By J. W. Willis 
 BuxD, M.A., of Lincoln's Inn, Barrister-at-Law, Author of 
 " The Law relating to Salmon Fisheries in England and Wales," 
 &c. 12mo. OS. cloth. 1876 
 
 POWELL'S LAW OF INLAND CARRIERS.— 
 
 Second Edition. 
 
 THE LAW OF IXLAXD CAEEIEES, 
 especially as regulated by the Eailway and Canal Traffic Act, 
 1854. By Edmitnt) Powell, Esq., of Lincoln College, Oxon, 
 M.A., and of the Western Circuit, Barrister-at-Law, Author of 
 "Principles and Practice of the Law of Evidence." Second 
 Edition, almost re-written. 8vo. lis. cloth.
 
 MESSRS. BUTTRTIWORTII, 7, FI.ERT STREET, E.C. 11 
 
 FOLKARD ON" SLANDER & LIBEL.— Fourth Edition. 
 THE 1..VW OF SLAXDKli AND LIIJEL ri-„uu.l.Ml 
 upon Stiirkit^'s Troatiso), iucludinj? tho Ploadiuf; and Evidouco, 
 Civil and Criminal, adapted to tho prosont Procoduro; also 
 MALICKniS I'llOSECUTIONS and CONTEMPTS of COURT. 
 By II. C. FoLK.VKi), Barristor-at-Law. In 1 thick vol. roy. Svo. 
 45s. cloth. ^ INTO 
 
 PYE ON CLAIMS TO DEBTORS' ESTATES. 
 
 NOTES ON THE CONFLICTINO CL.\IM8 TO THE 
 PROPERTY OF A DEBTOR. By HExVry Joh.v Pve, of tho 
 Inner Tcmplo, Esq., Barrister-at-Law. Just published, post 
 8vo. 3s. 6f/. cloth. ^ 1880 
 
 COOTE'S PROBATE PRACTICE. -Eighth Edition, 
 
 THE CO^niON FOllM ITvACTICE OF THE HIGH 
 COURT of JUSTICE in granting? Probates and Administrations. 
 By Henry Charles Coote, F.S.A., late Proctor in Doctors' 
 Commons, Author of "Tho l*ractico of tho Ecclesiastical Courts," 
 &c. &c. 8th Edit. In 1 vol. 8vo., 26.9. cloth; SOs. calf. 1878 
 
 *,• J%B Forms (la printfA in this work are in strict acrordancf with the Orders of Court 
 and Decisions of the llight Hon. Sir James Hannen, and ore those which are in use 
 in the Principnl Iteijistn/ of the. Probate Divisional Conrt. 
 "The abovo is another name for what new and useful forms; and the author 
 is commonly knowTi to the profession as has not only attempted, but has in f he 
 Coote's Probate Practice, a work about main succeeded, in adopting the forms 
 as indispensable in a solicitor's office as and directions under tlie old Probate 
 any book of practice that is known to practice, as embodied in previous e<li- 
 us. The seventh edition is chiefly dis- tions of the work, to the n'^w procedure 
 tinguishable from the sixth edition in under the Judicature Acts. Solicitors 
 this, that certain importiint modifica- know that tho ditticulties in the way of 
 tions and alterations are effected which satisfyini? the different clerks at S<inicr- 
 have been rendered necessary by the set House are frequently KTcat, and 
 Judicature Acts. Judicial decisions there is nothinfj so likely to tend to 
 subsequent to the last edition have been simplicity of practice aa Mr. Coot<''s 
 carefiuly noted up. We notice sevcKil book." — Imw Times. 
 
 TRISTRAM'S CONTENTIOUS PROBATE PRACTICE. 
 
 TnE OOXTENTIO us PRACTICE OF TlIF HIOII 
 COURT OF JUSTICE, in respect of Grants of Probates and 
 Administrations, \dth the Practice as to Motions ami Summonses 
 in Non-contentious Business. By Thomas Hutchinson Tkis- 
 TRAM.Q.C, D.C.L., Advocate of Doctors' Commons, of the Inner 
 Temple, Chancellor of the Diocese of London. Demv 8vo. '21 «. 
 cloth. » ' 1«'S1 
 
 TOMKINS & JENCKEN'S MODERN ROMAN LAW. 
 
 COMPEXDIUM OF THE MdDFIiX Ko.M.W L.WV. 
 Founded upon the Trcati.ses of Puchta, Von Van^'erow, Arndts, 
 Franz Mohler, and the Corpus Juris Civilis. By Fredeiiick J. 
 ToMKiNS, E.sq., M.A., D.C.L., Author of the "Institutes of 
 Roman Law," translator of "Gaius," &c., and Henry Dieduich 
 Jencken, Esq., Barristers-at-Law, of Lincoln's Inn. 8vo. 
 14s. cloth. 1870
 
 12 LAW WORKS PUBLISHED BY 
 
 SHELFORD'S RAILWAYS.— Fourth Edition, by Glen. 
 
 SHELFOED'S LAW OF EAILWAYS, containing the 
 whole of the Statute Law for the Regulation of Railways in 
 England, Scotland and Ireland. With Copious Notes of Decided 
 (Jases ujjon the Statutes, Introduction to the Law of Railways, 
 and Appendix of Official Docmnents. Fourth Edition, by 
 W. Cunningham Glen, Barrister-at-Law, Author of the " Law 
 of Highways," "Law of PubUc Health and Local Govern- 
 ment," &c. 2 vols, royal 8vo. 63s. cloth; 75s. calf. 1869 
 
 " The work must take its unquestionable merits. But we may nevertheless be 
 
 position as the leading Manual of the permitted to observe that what has 
 
 Jiailway Law of Great Britain." — Law hitherto been considered as ' the best work 
 
 Magazine. on the subject' (Shelford), has been im- 
 
 '^ At any rate we may venture to pre- measurably improved by the application of 
 
 diet that Mr. Cunningham Glen's edi- Mr. Glen's diligence and learning. . . . 
 
 tion of Shelford on Hallways will be the Siiffiripnt, however, has been done to 
 
 standard work of our day in that dej>art- show that it is in eveiy respect worthy 
 
 ment of law." — 'Laiv Journal. of the reputation which the work has 
 
 " Far be it from us to under vahie Mi-. always enjoyed."— /us(ice of the Peace. 
 Shelford' s labours, or to disparage his 
 
 GRANT'S BANKERS AND BANKING COMPANIES. 
 Fourth Edition. By C. C. M. PLUMPTRE. 
 
 GE ANT'S TEEATISE ON THE LAW EELATENG 
 TO BANKERS AND BANKING COMPANIES. With an 
 Appendix of the most important Statutes in force relating 
 thereto. Fourth Edition. By C. C. M. Pltjhptke, of the 
 Middle Temple, Esq., Barrister-at-Law. 8vo. 26s. cloth. 
 
 " Eight years sufficed to exhaust the the sterling merits which have ac- 
 
 second edition of this valuable and quired for it the high position which it 
 
 standard work, we need only now holds in standard legal literatm-e. Mr. 
 
 notice the improvements which have Fisher has annotated all the recent 
 
 been made. We have once more looked cases." — Laiv Times. 
 tlirough the work, and recognize in it 
 
 FISHER'S LAW OF MORTGAGE— Third Edition. 
 
 Tlie LAW of MOETGAGE and OTHEE SECUEITIES 
 UPON PROPERTY. By William Richard Fisher, of 
 Lincoln's Inn, Esq., Barrister-at-Law. 2 vols. roj'. 8vo. 60s. 
 cloth; 72s. calf. 1876 
 
 " This work has built up for itself, in prove most useful reading for the stu- 
 
 the experienced opinion of the profes- dent, both as a storehouse of infoi-ma- 
 
 sion, a verj" high reputation for careful- tion and as intellectual exercise." — 
 
 ness, accuracy and lucidity. Thisropu- Law Magazine. 
 
 Vation is fully maintained in the present " We have received the tliird edition 
 
 idition. The law of securities upon of the Law of Mortgage, by William 
 
 ])roperty is confessedly intricate, and, Richard Fisher, Ban-ister-at-Law, and 
 
 ])robably, as the author justly observes, we are very glad to find that vast im- 
 
 imbraces a greater variety of learning provcmcnts have been made in the plan 
 
 tlian any other single branch of the of the work, which is due to the incor- 
 
 Engh.sh law. At the same time, an poration therein of what Mr. Ksher 
 
 accmate knowledge of it is essential to designed and executed for the abortive 
 
 every practising barrister, and of daily Digest Commission. In its present 
 
 requirement amongst solicitors. To all fonii, embracing as it does all the sUi- 
 
 such we can confidently recommend Mr. tute and case law to th*i present time, the 
 
 Fisher's work, which will, moreover, workisoneofgi-eatvaiue." — Law Times.
 
 BOYLE'S PRECIS OF AN ACTION AT COMMON LAW. 
 PRECIS of an ACTION at COMMON LAW, 8]io\vin<r 
 at a Glanco the l*roccthiro niidor tho Jvidicaturo Acts and Rulus 
 in an Action in tho Quoon's Bonch, Couiiuon Ploas and Ex- 
 chequer Divisions of the High Court of Justice. By Uekdkict 
 E. Boyle, Solicitor. 8vo., os. cloth. 1881 
 
 " In this littlo mnntiiil, Mr. Boyle has preparing for the Final Examination 
 8uc<-eeded in exhibitinf? a succinct and certainly need a (^uido of thiH descrip- 
 lucid outline of nil the ordinary pro- tion, and Mr. Bovle hius well supplied 
 ceiHlinjrs in actions governed liy the that need. Indeed, we do not renienilier 
 practice, under the Enpli.sh Judicature havinff ever before seen the Eiif^ILsh 
 Acts and Orders, of what used to be procedure so well e.xplaincd witliin so 
 called the common law courts. Takinjf brief a compass." — Iriih Law Tiims. 
 the variou.s steps of that i)rocedure in " A student who is iffnorant of pro- 
 their natural oider, hv summarises tlie ccdiire, and desii-cs to jirepare for his 
 orders of court rclatinfrtoeadi, arranf;- Final Examination, will do well to pro- 
 ins them under distinct headinfri, and cure Mr. Boyle's work." — Law Examina- 
 referring to authorities upon their con- tion Journal. 
 structiou and appliaitiun. Students 
 
 BEDFORD'S FINAL EXAMINATION GUIDE TO 
 PROBATE AND DIVORCE. 2nd Edition. 
 
 THE EiXAE EX^VMIXATiOX GUIDE to the LAW 
 of PllOBATE and DIVORCE : containing a Digo.st of Final 
 Examination Questions with tho Answers. By E. II. Bedfoud, 
 SoLicitor,Temple, Author of tho "Final ]*'xamination Guide to tho 
 Practice of tho Supreme Coui't of Judicature." In 1 vol. post 
 Svo. 6s. cloth. 
 
 BEDFORD'S FINAL EXAMINATION GUIDE. 
 
 THE FINAL EXAMINATION GUIDE TO THE 
 PRACTICE of tho SUPREME COURT of JUDICATURE, 
 containing a Digest of the Final Examination Questions, with 
 many New Ones, with tho Answers, under tho Supreme Court of 
 Judicature Act. By Edwaud IIenslowe Bedfouu, Solicitor, 
 Temple. In 1 vol. Svo. ~8. M. cloth. 1875 
 
 BEDFORD'S PRELIMINARY aUESTIONS AND 
 ANSWERS. 
 
 THE PRELIMINARY (No. 53): containing the QUES- 
 TIONS of the PRELIMINARY EXAMINATIONS (Solicitors) 
 of October, 1882, with the Answers. By Edwakd Hexslowe 
 Bedfoud, Solicitor. 8vo., fSd. sewed, by post Id. 1882 
 
 •jj* Continued each term. 
 
 By the same Author, on a Sheet, Is. 
 A TABLE of tho LEADING STATUTES for tho 
 INTERMEDIATE and FINAL EXAMINATIONS in Law, 
 Equity and Conveyancing.
 
 14 
 
 LAW "WORKS PUBLISHED BY 
 
 LEWIS'S INTRODUCTION TO CONVEYANCING. 
 
 PEINCIPLES OF CONVEYANCHSra EXPLAINED 
 
 and ILLUSTRATED by CONCISE PEECEDENTS. With an 
 Appendix on the Effect of the Transfer of Land Act in Modifying 
 and Shortening Conveyances. By Hubert Lewis, B.A., late 
 Scholar of Emmanuel College, Cambridge, of the Middle Temple, 
 Barrister-at-Law. 8vo. 18s. cloth. 1863 
 
 " By the diligent and painstaking 
 student who has duly mastered the law 
 of property, this work will undoubtedly 
 be hailed as a very comprehensive ex- 
 ponent of the Piinciples of Convey- 
 ancing'." — Leguleian, or Articled Clerks' 
 Magazine. 
 
 "Mr, Lewis has contributed a valuable 
 
 aid to the law student. He has con- 
 densed the Practice of Conveyancing 
 into a shape that will facilitate its re- 
 tention on the memory, and his Pre- 
 cedents are usefully airanged as a series 
 of progressive lessons, which may be 
 either used as illustrations or exercises." 
 Law Times. 
 
 PHILLIMORE'S INTERNATIONAL LAW.— 3rd edit. 
 
 J'oL I. 8vo. 2is. cloth; Vol. II. 26«. cloth. 
 
 COMMENTAEIES ON INTEENATIONAL LAW. 
 By the Eight Hon. Sir Egbert Phillimore, Kat., P.C., Judge 
 in the Probate, Matrimonial, Divorce and Admii'alty Di^-ision of 
 the High Court of Justice. 1879 
 
 *«* Vol. ILL, second edition (1875), price 36s.; Vol. LV., second edition (1874), 
 price 3is. cloth, may be had separately to complete sets. 
 Extract from Pamphlet on '^American Neutrality," by Geoboe Bemis [Boston, U.S.). 
 — " Sir Robert Phillimore, the present Queen's Advocate, and author of the most 
 comprehensive and systematic 'Commentaries on International Law' that England 
 has produced." 
 
 " The authority of this work is admit- 
 tedly gi'eat, and the learning and ability 
 displayed in its preparation have been 
 recognized by wiiters on public law both 
 on the Continent of Europe and in the 
 United States. With this necessarily 
 imperfect sketch we must conclude our 
 notice of the first volume of a work 
 which forms an important contribution 
 to the literature of public law. The 
 book is of great utility, and one wliich 
 should And a place in the Ubrai-y of 
 every civilian." — Law Magazine. 
 
 " it is the most complete repository of 
 matters bearing upon international law 
 that we have in the language. We need 
 not repeat the commendations of the 
 text itself as a treatise or series of 
 treatises which this journal expressed 
 upon the appearance of the two first 
 volumes. Tlie reputation of the Author 
 is too well estabhshed and too widely 
 known. We content ourselves vdth. tes- 
 tifjing to the fulness and thoroughness 
 of the work as a compU ition after an 
 inspection of the throe volumes. (2nd 
 edition)." — Boston [United States) Daily 
 Adverti.ier. 
 
 " Sir Robert Phillimore may well be 
 proud of this work as a lasting record 
 of his ability, learning and his industry. 
 
 Having read the work carefully and 
 critically, we are able to highly recom- 
 mend it." — Law Journal. 
 
 " The second edition of Sir Robert 
 PhUlimore's Commentaries contains a 
 considerable amount of valuable addi- 
 tional matter, beaiing more especially 
 on questions of international law raised 
 by the wars and contentions that have 
 broken out in the world since the pub- 
 lication of the fii'st edition. Having 
 upon a fonner occasion discussed at 
 some length the general principles and 
 execution of this important work, we 
 now propose to confine ourselves to a 
 brief examination of a single question, 
 on which Su- Robert Phillimore may 
 justly be regarded as the latest autho- 
 rity and as the champion of the piinci- 
 ples of maritime law, which, dois-n to a 
 recent period, wore maintained by this 
 countr)', and wliich were at one time 
 accepted without question liy the mari- 
 time powers. Sir Robert Pliillimore has 
 examined wth his usual learning, and 
 establi.shed wthout the possibility of 
 doubt, the histoiy of the doctilne ' free 
 sliips, free goods,' and its opposite, in 
 the thiid volume of his 'Commen- 
 taries' (p. 302)." — Edinburgh Review, No. 
 296, October, 1876.
 
 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 15 
 
 UNDERHILIi'S CHANCERY PBOCEDURE. 
 
 A PEACTIOAL and CONCISE MANUAL <.f tlie PRO- 
 CEDURE of tho CLL\N(_"E11Y DIVISION of llio llKill COURT 
 of JUSTICE, both iu Actions and Matters, liy AuTiiuu Under- 
 HiLL, LL.D., of Lincoln's Inn, Harristor-at-Law, author of 
 "A Concise Treatise on the Law of Private Trusts and Trustees," 
 "A Summary of the Law of Torts," &c. 1 vol. post 8vo., 10s. 6(/. 
 cloth. 1881 
 
 " This work, coming from the pen of sion. The book is divided into threr 
 the author of the well-known works on parts — the first division treats of actiona 
 
 Torts and Ti-usts, will 1 lo found to be at 
 on<U' ciincise and readiible. We would 
 advise its perusal by all students and 
 young practitioners." — Justice oj' the 
 I'nace. 
 
 " Mr. Underbill has produced within 
 small compa.ss a very useful work on 
 ("bancery Practice." — Law Stndents' 
 Journal. 
 
 " This most excellent treati.so on 
 Chancery Practice supplies a lonjj exist- 
 in}? want. Within a roniparatively 
 •small space Mr. Underbill, in his u.sual 
 clear, enipliatie and intellii,'-ent manner, 
 has suiiplied the student with all the 
 necessary information re.spectintr the 
 peculiar practice in the Chancery DiW- 
 
 and contjiins eleven sub-di\'ision« ; the 
 second division treats of mniurs and 
 contains four sub-divisions, while the 
 third division treats of procet-dinpi 
 common to both actions and matters, 
 and also contains four sub-<livision8. 
 The work cannot fail to be <if \iTbaX ser- 
 vice to the student, especially if he a»- 
 pire.s for Honors, and he will find it a 
 complete work to his purpos*-, while to 
 the piuctitioner such aecunite informa- 
 tion as is conveyed in its popes can 
 hardly fail to be of senice ; and, liki^ 
 its companion the now well-know7i 
 ' Undcrliill's Torts,' and ' Underbill's 
 Trustees,' the volume will meet with it 
 ready sale." — Gibaon'a Final. 
 
 UNDERHILL'S LAW OF TORTS.— Third Edition. 
 
 A SUM]^L\EY OF THE LAW OF TOKTS, OR 
 WRONGS INDEPENDENT OF CONTRACT, including the 
 Employers' Liability Act. 1880. By AkthurUxdekiiill.LL.D., 
 of Lincoln's Inn, Esq., Barri.ster-at-Law; assisted by C. CM. 
 Plumptre, of the Middle Temple, Esq., Barrister-at-Law. 
 Third Edition. Post 8vo. 8s. cloth. 1881 
 
 " He luus set forth the elements of the " The plan is a f^ood one and has l>een 
 
 law with clearness and accuracy. The honestly cai-ried out, and a good index 
 little work of Mr. Underbill is incxpen- faciUtatcs reference to the contents of 
 aive and may be relied on." — Lnw the book." — Justice of the I'mce. 
 Times. ^ 
 
 UNDERHILL'S LAW OF TRUSTS AND TRUSTEES. 
 
 A ("(INCISE MANUAL OF THE LAW RKLATINO TO 
 PRI^^VTE TRUSTS AND TRUSTEES. By AuTiiru U.vueu- 
 iiiLL, M.A., of Lincoln's Inn and the Chancery Bar, Barrister- 
 
 at-Law. Post 8vo. Hs. cloth. 
 
 "The author so treats his subjects 
 that it will not be found a dittioult 
 matter for a person of ordinary intel- 
 ligence to retain t he matter therein con- 
 tiiincd, which must be constantly ne- 
 ce.s.sai-y. not only to the professional 
 Hiiin, but also for all those who may 
 have taken upon them.selves the re- 
 sponsibilities of a trustee." — Justice of 
 th'! I'eacf. 
 
 " We recently published a short re- 
 view or notice of Mr. A. F. Leach's 
 * Di!?est of the l^w of Probate Duty,' 
 and remarked that it was framed after 
 
 1878 
 
 the model of Sir Pitzjamcs Stephen's 
 ' Digest of the ("riniinal 1 .aw and Imvi 
 of Evidence from the Indian .\ct>*,' and 
 which has been followed by Mr. Pollock 
 in his ' Digest of the Ijiw of Partner- 
 ship.' Mr. Underhdl has, in the alxive- 
 named volume, p<>rfi>rmed a similar tusk 
 in relation to tlie ' Ijiw iif Trusts.' In 
 seventy-six lulieles he has suinmari/ed 
 the principles of the ' Ijiw of Trusts' as 
 distinctly and iieeurately as the sul>- 
 ject will admit, and has supplemented 
 the articles with iUustrutions." — /xiu> 
 Journal.
 
 16 LAW WORKS PUBLISHED BY 
 
 SCRIVEN ON COPYHOLDS.— 6th Edit., by Brown. 
 A TEEATISE on the LAW of COPYHOLDS and of 
 
 the other TENUEES (Customary and Freehold) of LANDS 
 within Manors, with the Law of Manors and Manorial Customs 
 generally, and the Rules of Evidence applicable thereto, in- 
 cluding the Law of Commons or Waste Lands, and also the 
 Jurisdiction of the various Manorial Courts. By John Sceiyen. 
 The Sixth Edition, thoroughly revised, re-arranged, and brought 
 down to the present time, by Archibald Brown, Esq., of the 
 Middle Temple, Barrister-at-Law, B.CL., &c., Editor of " Bain- 
 bridge on the Law of Mines." 1 vol. roy. 8vo. 30s. cloth. 1882 
 
 BAINBBIDGE ON MINES.-4th Edit., by Archibald 
 Brown. 
 A TEEATISE on the LAW of MINES and MINERALS- 
 
 By William B^unbridge, Esq., F.G.S., of the Inner Temple, 
 Barrister-at-Law. Fourth Edition. By Archibald Brown, 
 M.A. Edin. and Oxon, of the Middle Temple, Barrister-at-Law. 
 This Work has been wholly re-cast, and in the gi-eater part re- 
 written. It contains, also, several chapters of entirely new 
 matter, which have obtained at the present day great Mining 
 importance. 8vo. 4os. cloth. 1878 
 
 " This work must be ah-eady familiar which has for so long a period occupied 
 to all readers whose practice biiugs the position of the standard work on 
 them in any manner in connection ■with this important subject. Those only who, 
 mines or mining, and they well know by the nature of their practice, have 
 its value. We can only say of this new learned to lean upon Sir. Bainbridge 
 edition that it is in all respects worthy as on a solid staff, Cim appreciate the 
 of its predecessors." — Law Times on deep research, the admiraljle method, 
 Srd edit. and the graceful style of this model 
 
 " It would be entirely superfluous to treatise.." — Laiv Journal on 3rd edit. 
 attempt a general review of a work 
 
 ADAMS'S LAW OF TRADE-MARKS. 
 
 A TREATISE ON THE LAW^ OF TEiVDE-lVIAEKS ; 
 
 with tho Trade-Marks Eegulation Act, 1875, and the Lord 
 Chancellor s Eules. By F. M. Ao^Viis, of the Middle Temple, 
 Esq., Barrister-at-Law. 8vo. 7s. 6d. cloth. 1876 
 
 NASMITH'S INSTITUTES OF ENGLISH LAW. 
 
 THE INSTITUTES OF ENGLISH LAW.— Part 1, 
 
 EngHsh Public Law. Part 2, English Private Law (in 2 vols.). 
 Part 3, Evidence and the Measui'c of Damages. By Dayid 
 Nasmith, LL.B., of the Middle Temple, Barrister-at-Law, 
 Author of the Chronometrical Chart of the Historj^ of England, 
 &c. In 4 vols, post 8vo. 30s. cloth. 1873—1879 
 
 *:^* The above may be had se])etrately to complete sets at the following 
 prices :—Fart 1, lO.s. cloth. Part 2, 20a'. cloth. Part 3, 10s. cloth. 
 
 " Mr. Nasmith has evidently expended it, the bulk of his Treatise, which is con- 
 much labour and care in the compilation fined to a concise exposition of the exist- 
 and arrangement of the present work, inglaw, appears to merit the praise of ao- 
 and so far a.s we liave been able to test curacy and clearness." — Law Magazine.
 
 SIR T. ERSKINE MAY'S PARLIAMENTARY 
 PRACTICE. Eighth Edition. 
 A TKEATKSE ON THE LAW, PEIYILEGES, 
 
 PROCEEDINGS AND USAGE OF PARLIAMENT. By Sir 
 Thomas Erskine M.\y, L).r.Ij., K.C.B., Clerk of tho IIouso of 
 Commons and Bencher of tho Middle Temple. Eighth Edition, 
 Revised and Enlarged. 8vo. 428. cloth. 1879 
 
 CovTENTs : Book I. Constitufion, Powers and I'rivilfu'i^M of Purliiirnent.— Hook II. 
 Practiocand I^ocooilinp-siii I'arliarnont- Honk 111. 'I'ln- Manner of patwinjfl'rivatt' 
 Bills, with the Standing; ( Jixlirs in both Hoiim's, and tlie most recc-nt Precedents. 
 "A work, which has risen from the ment." — SoUcitora' Journal. 
 position of a text book into tliat of an " We need make no comment upon 
 
 authority, would seem to a considerable the value of the work. It is an accepted 
 extent to have passed out of tlie range authority and is undeniably the law of 
 of criticism. It is quite unnec<'S8ary to Parliament. It has been broujfht up to 
 point out the excellent arranffcment, the latest date, and should be in the 
 accuracy and completeness wliich long hands of evei-y one enjpiffed in Parlia- 
 aifo rendered Sir T. E. May's treatise mentary life, whether as a lawj-er or as 
 the st<indard work on the law of Parlia- a senator." — Law Tiiifs. 
 
 FULTON'S Manual of CONSTITUTIONAL HISTORY. 
 A M.VNUAL OF rONSTlTUTlONAL IILSTOliY, 
 founded on the Works of Hallam, Creasy, May and Broom : 
 comprising all the Fundamental Principles and tho Leading 
 Cases in Constitutional Law. By Forhest Fulton, Esq., 
 LL.D., B.A., Urdver.'^ity of London, and of the Middle Temple, 
 Barrister-at-Law. Post 8vo. Is. 6d. cloth. 1875 
 
 TUDOR'S LEADING CASES ON REAL PROPERTY.- 
 
 Third Edition. 
 A SELECTION of LEADING T'ASES on tho LAW 
 relating to REAL PROPERTY, CONVIOYANCING, and tho 
 CONSTRUCTION of WILLS and DEEDS ; with Notes. By 
 Owen Davies Tudor, Esq., of tho Middle Temple, Barristor- 
 at-Law, Author of "Leading Ca.ses in Equity." Third Edition. 
 1 thick vol. royal 8vo. 21. Us. 6d. cloth. 1879 
 
 "The work before us comprises a to the former." — Solicitors' Journal and 
 
 digest of decisions which , if not cxhaua- lirpnrUr. 
 
 tive of all the principles of our real " In this new edition, Mr. Tudor has 
 
 property code, will at lea.s-t be found to c^ai-iuiiy re\-ised his notes in accordance 
 
 leave nothing unt<juched or unelabo- with subsccjuent dciisioim that have 
 
 rated under the numerous legal doc- modified or extende<l the law as pn»- 
 
 trincs to which tho ca-ses 8«veniliy relate. viously exp<mnded. Tliis and the other 
 
 To Mr. Tudor's treatment of all these volumes of Mr. Tudor an- almost a law 
 
 subj.'ct.s, so complicated and so varied, librarj* in themselves, and we are witiif- 
 
 we accord our entire commendation. fied that thi' student wnuld loam more 
 
 There are no omissions of any important law fnjm the oireful reading of tlifin, 
 
 cases relative to the various branches of than he would aciiuire fn)ni double the 
 
 the law comprised in the work, nor are time given to the elabomtc treatise* 
 
 there any omissions or defects in his wliich leami'd pntfi-ssors nHfimmend 
 
 statement of the law itself applicable the student to penis*', with entire for- 
 
 to the cases discussed by him. We cor- geffulne.->s tliat time and brains are 
 
 dially recommend the work to the prac- limited, and that to do wliat they advise 
 
 titioner and student alike, but especially wouldbetheworkofalife."— /,rtu-7'ini«.
 
 18 LAW WORKS PUBLISHED BY 
 
 MOSELY'S ARTICLED CLERKS' HANDY BOOK.— By 
 
 Bedford. 
 
 MOSELY'S PEACTICAL HANDY-BOOK OF ELE- 
 MENTARY LAW, designed for the Use of AETICLED 
 CLERKS, with, a Coui'se of Studj', and Hints on Reading for 
 the Intermediate and Final Examinations. Second Edition, 
 by Edward Hexslowe Eedfoed, Solicitor. Post 8vo., 8s. 6d. 
 cloth. 1878 
 
 " This book cannot be too strongly Law. It ■will certainly not be the fault 
 
 recommended to every one who con- of either author or editor if the years 
 
 templates becoming a solicitor." — L/tw spent under articles are not well spent. 
 
 Examination Journal. and if tlie work required to lay a sound 
 
 "Air. E. H. Bedford, indefatigable foundation of legal knowledge is not 
 
 in his labours on behalf of the articled done with that 'knowledge' of which 
 
 clerk, has supervised a new edition of they so emphatically declare the neces- 
 
 Mosely's Handy Book of Elementaiy sitj'." — Law Ma/jazine. 
 
 CUTLER & GRIFFIN'S INDIAN CRIMINAL LAW. 
 
 AN ANALYSIS OF THE INDL\N PENAL CODE, 
 including the INDIAN PENAL CODE AMENDMENT ACT, 
 1870. By JoHZN" Cutler, B.A., of Lincoln's Inn, Barrister-at- 
 Law, Professor of English Law and Jiuisprudence, and Professor 
 of Indian Jurisprudence at King's College, London, and Edmuis'D 
 Fuller Griffin, B.A., of Lincoln's Inn, Barrister-at-Law. 
 8vo. 6s. cloth. 1871 
 
 ROUSE'S CONVEYANCER, with SUPPLEMENT, 1871. 
 Third Edition. 
 
 The PEACTICAL CON^^YANCEE, giving, in a mode 
 comhining facility of reference with general utiHty, upwards of 
 Four Hundi-ed Precedents of Conveyances, Mortgages and 
 Leases, Settlements, and Miscellaneous Forms, with (not in 
 previous Editions) the Law and numerous Outline Forms and 
 Clauses of Wills and Abstracts of Statutes affecting Real Pro- 
 perty, Conveyancing Memoranda, &c. By Rolla Rouse, Esq., 
 of the Middle Temple, Barrister-at-Law, Author of " The Prac- 
 tical Man," &c. Third Edition, greatly enlarged. With a 
 Supplement, giving Abstracts of the Statutory Provisions 
 affecting the Practice in Conveyancing, to the end of 1870; and 
 the requisite Alterations in Forms, with some new Forms ; and 
 including a full Abstract in numbered Clauses of the Stamp 
 Act, 1870. 2 vols. 8vo. 30s. cloth; 38s. calf. 1871 
 
 *** ^'"^ Supplement may be had separately, price Is. &d. served. 
 
 " The best test of the value of a book reached its third shows that it is con- 
 written professedly for practical men is sidered by those for whose convenience 
 the practical one of the number of edi- it was written to fulfil its purpose well." 
 tions through which it passes. The fact — Law JIagazine. 
 that this well-known work has now
 
 MESSRS. HUTIERWORTH, 7, FLEET STRKKT, E.G. 19 
 
 ROBSON'S BANKRUPT LAW— Fourth Edition. 
 
 A TEKATISE on t lie LAW of llANKiaJiTCY ; con- 
 taining a full Exposition of thu I'rinciplos and I'mttico of the 
 Law, including tho Ijaw as to Bills of Sale undor tho Bills of 
 Sale Act, 1878, and tho Application of tluj Bankruptcy Rules, as 
 to Proofs by Creditors, under Section 10 of tho Judicature Act, 
 1875; with an Appendix comprising the Statutes, llulos. Orders, 
 and Forms. 4th Edit. By Geouok Youno EonsoN, Esq., of the 
 Inner Temple, Barrister-at-Law. 1 vol. 8vo. 38«. cloth. 1881 
 
 CHRISTIE'S CRABB'S CONVEYANCING.— 
 
 Fifth Edition, by Shelford. 
 
 CRABIVS COMPLETE SEKIES OF TREOEDENTS 
 in CONVEYANt'lXG and of COMMON and COMMERCIAL 
 FORMS in Alphabetical Order, adapted to the Present State of 
 the Law and the Practice of Conveyancing; with copious Prefaces, 
 Observations and Notes on the several Deeds. By J. T. Christie, 
 Esq., Barrister-at-Law. Fifth Edition, with numerous Correc- 
 tions and Additions, l)y Leonard Shelkord, Es(i., of tho Middle 
 Temple, Barrister-at-Law. 2 vols. roy. 8vo. 3/. cloth. 18o!» 
 
 CUTLER'S LAW OF NATURALIZATION. 
 
 THE LAAV OF NATUKALIZATION as Amended 
 by the Act of 1870. By Joux Cutler, B.A., of Lincoln's Inn, 
 Barrister-at-Law, Editor of "Powell's Law of Evidence," &c. 
 12mo. 3s. (id. cloth. 1871 
 
 " Professor Cutler's book is a useful is given in full with a useful index."— 
 siunmiuy of the law and of the chanffcs Law Magazine. 
 which have been made in it. The act 
 
 COOTE'S ADMIRALTY PRACTICE.-- Second Edition. 
 
 THE PKACTICE OF THE IIKUI COUET 
 OF ADMIRALTY OF ENGLAND : also th(^ I'ractice of the 
 Judicial Committee of Iler Majesty's Most Ilonourable Pri^-)- 
 Council in Admiralty Appeals., with Formes and Bills of Costs. 
 By Hexry Charles Coote, F.S.A., one of the Examiners of the 
 High Court of Admiralty, Author of "The Practice of the Court 
 of Probate," &c. Second Edition, almost entirely re-written ; 
 and vrith. a SUPPLEMENT coutainin;/ thv Vouuttj Court I'ractirr 
 in Admiralty, the Act, Rules, Orders, &c. 8vo. 1G«. cloth. 18G!> 
 
 •^« This work contains every Commnn Form in use h;/ the Practitioner in Admiralty, as 
 well as every description of Bill of Costs in that Court, a feature possessed bj/ i-« 
 other work on the Practice in Admiralty. 
 " Mr. Coote, being an Examiner of Btantially coniiiderwl, everything that 
 
 the Court, may be considered as an can be deinred to the practitioner."— 
 
 authoritative exponent of the points of Law ilagaxine. 
 
 which he treats. His treati.se is, su1>- 
 
 b2
 
 20 LAW WORKS PUBLISHED BY 
 
 ORTOLAN'S ROMAN LAW, Translated by PRICHARD 
 and NASMITH. 
 
 THE HISTOEY OF EOMAN LAW, from tlie Text of 
 Ortolan's Histoire de la Legislation Eomaine et Generalisation du 
 Droit (edition of 1870). Translated, Tvith. tlie Author's permission, 
 and Supplemented by a Chi'onometrical Chart of Eoman History. 
 By I. T. PKiCHAED,'Esq., F.S.S., and David NASiiiTH, Esq., 
 LL.D., Barristers-at-Law. 8vo. 28s. cloth. 1871 
 
 " We know of no work, -nhich, in our translation before us, it is enough to 
 opinion, exhibits so perfect a model of say, that it is a faithful representation 
 ■what a text-book ought to be. Of the of the original." — Law Magazine. 
 
 KELLY'S CONVEYANCING DRAFTSMAN.— 2nd Edit. 
 
 THE DEAETSMAN: containing a Collection of Concise 
 Precedents and Forms in Conveyancing; "with Introductory- 
 Observations and Practical Notes. By James H. Kelly. 
 Second Edition. Post 8vo. 12s. 6d. cloth. 1881 
 
 "Mr. Kelly's object is to give a few own will probably find it advantageous 
 
 precedents of each of those instruments to collate them with those given by Mr. 
 
 which are most commonly required in a Kelly. Each set of precedents is pre- 
 
 solicitor's office, and for which prece- faced by a few terse and practical ob- 
 
 dents are not always to be met ■with in servations." — .Solicitors' Journal. 
 
 the ordinary books on conveyancing. " Such statements of law and facts as 
 
 The idea is a good one, and the prece- are contained in the work are accurate." 
 
 dents contained in the book are, gener- — Laxi: Journal. 
 
 ally speaking, of the character contem- " It contains matter not found in the 
 
 plated by the author's design. We more ambitious works on conveyancing, 
 
 have been favourably impressed ■with and we venture to think that the student 
 
 a perusal of several of the precedents ■will find it a useful supplement to his 
 
 in this book, and practitioners who reading on the subject of conveyanc- 
 
 have already adopt^ forms of their ing." — Law Examination Journal. 
 
 REDMAN ON ARBITRATIONS AND AWARDS. 
 
 A CONCISE TEEATLSE on the LAW OF AEBI- 
 TEATIOXS and AWAEDS ; with an Appendix of Precedents 
 and Statutes. By Joseph Hawoeth Eedma>', of the Middle 
 Temple, Esq., Barrister-at-Law, Author of "A Treatise on the 
 Law of Eailway Companies as Carriers." 8vo. 12s. cloth. 1872 
 
 " The arrangement is good, the style work ■will be useful. The precedents 
 
 clear, and the work exhaustive. There of awaids are clearly and concisely 
 
 is a useful appendix of precedents and dra^wn. The aiTungement of chapters 
 
 statutes, and a very good index." — Law is conveniently managed. The law is 
 
 Tinus. clearly stated, and, so far as we can 
 
 " This Ls likely to prove a useful book judge, all the important ca.ses bearing 
 
 in practice. All the ordinary law on directly on the subject are given, while 
 
 the subject is given shortly and in a the index appears reasonably copious, 
 
 convenient and accessible form, and These facts, combined ■with the small- 
 
 the index is a good one." — Solicitors' ness of the volume, ought to make the 
 
 Journal. book a success." — Law Jourrial. 
 
 "We have no doubt but that the
 
 REDMAN'S REFERENCES UNDER THE JUDICA- 
 TURE ACTS, 
 
 The L.VW and 1»RA0TICE of REFERENCES un.lor tlio 
 JUDICATURE ACTS, with an Appoiulix of Onl.T.s and Forini; 
 being a Supplement to "The Law of Arbitrations and Awards." 
 By J. H. Redmax, of the Middle Temple, Esquire, Barristor-at- 
 Law. 8vo. 2s. cloth. 1881 
 
 CLIFFORD & STEPHENS' REFEREES' PRACTICE, 
 1873. 
 
 THE PRACTICE OF THE COURT OF REFEREES 
 on PRIVATE BILLS IN PARLIAMENT; with Reports of 
 Cases as to the Locus Standi of Petitionc-rs decided durinj' the 
 Sessions 1867—72. By Frederick Clikforu, of the Middle 
 Temple, and Pembroke S. Stepiiexs, of Lincoln's Inn, Esqs., 
 Bamsters-at-Law. 2 vols, roval 8vo. HI. lOs. cloth. 
 
 In continuation of the above, 
 Royal 8vo., Vol. I. Part I., price 31». 6rf. ; Vol. I. Part 11., I.5.v.; 
 Vol. II. Part I. 12*. 6d. sewed; Vol. II. Part II. I2». Grf. Hewed; 
 Vol. II. Part III. I'i*. 6rf. sewed; Vol. II. Part IV. 15*. ; and Vol. III. 
 Part I. lbs. 
 
 CASES DECIDED DURING THE SESSIONS 1873 
 to 1881. bv the COURT OF REFEREES on PRIVATE BILLS 
 in PARLIAMENT. By Frederick Clifford and A. O. 
 RiCKARDS, Esqs., Barristers-at-Law. 
 
 "These Reports are a continuance "The book is really a very useful 
 
 of the .scries of ' Clitford and St«'phens' one, and will douMlcsM commend itself 
 
 Reporte,' which bcfpin in 1H«!7, and seem to Parliamentary practiUonew."— /-«» 
 
 to be marked by the same cjire and Timr.t. 
 
 accuracy which have made these Re- "Tlie Reports them.s<-lvofi are very- 
 ports a standard for reference and well done. To parliamentary prarti- 
 quotation by practitioners and the tionere the work c&unut fail to be of 
 Court itself." — Times. very ^reat value." — Solicitor^ Journal. 
 
 SAUNDERS' LAW OF NEGLIGENCE. 
 
 A TREATISE on the LAWapidical)!© toNEQLTGENCE. 
 By Thomas W. Sauxders, E.s(i., Barri.ster-at-Law, Recorder of 
 Bath. 1 vol. post 8vo. i>s. cloth. 1871 
 
 " The book is admirable ; while small " We find very eonaiderable dili^nce 
 
 in bulk, it contains evtr>-thint? that is diHpluycd. The refen-nceti to the oaaea 
 
 necessary, and its ammifemcnt is such an- (fivcn much more fully, and on a 
 
 that one can readily refer to it. Amongst mon> rational ii>-8t<"m than ia oommon 
 
 those those wlio liave done a (food ner- with textbook writem. lio haa a good 
 
 vice Mr. Saunders will find a place." — index."— Solicitor*' Journal. 
 Law Mngazint.
 
 22 LAW WORKS PUBLISHED BY 
 
 DIXON'S niA.W OF PARTNERSHIP. 
 
 A TEEATISE ON THE LAW OF PAHTNEESHIP. 
 By J. DixojST, of Lincoln's Inn, Esq., Barrister-at-Law, Editor 
 of "Lush's Common Law Practice." 1 vol. 8vo. 22s. cloth. 1866 
 
 "He has evidently bestowed upon this that of a philosophical lawyer. Mr. 
 
 book the same conscientious luboui- and Dixon's is purely and exclu.sively prac- 
 
 painstaking industry for whifli we had tical from beginning to end. We 
 
 to C(jmpliment him some montlis since, imagine that veiy few questions are 
 
 when reviewing his edition of ' Lush's likely to come before the practitioner 
 
 Pi-actice of the Superior Courts of Law,' which Jlr. Dixon's book ■nill not be 
 
 and, as a result, he has produced a found to solve. We have only to add, 
 
 clearly wiitten and well arranged ma- that the value of the book is very 
 
 nual upon one of the most important materially increased by an excellent 
 
 branches of our mercantile law." — Law marginal summary and a very copious 
 
 Journal. index." — Law Magazine and Review. 
 
 " Mr. Lindley's view of the subject is 
 
 MICHAEL & WILL'S GAS AND WATER SUPPLY. 
 
 Second Edition. 
 
 THE LAW EELATING TO GAS AND WATEE : 
 
 comprising the Eights and Duties, as well of Local Authorities 
 as of Private Companies in regard thereto, and including all 
 Legislation to the close of the last Session of Parliament. Second 
 Edition. By W. H. Michael and J. Shieess Will, of the 
 Middle Temple, Esqs., Barristers-at-Law. 8vo. 25s. cloth. 1877 
 
 " The Law of Gas and Water, by had been executed with care, skill and 
 
 Messrs. IVLchael and WiU, has reached ability. This edition is a decided im- 
 
 a second edition, and the authors tell provement on the th-st, and therefore 
 
 us that they have not only brought the we need add nothing now. It is a work 
 
 law down to the present time but they which has probably found its way into 
 
 havere-wiittenaconsiderable portion of the hands of all interested in the prac- 
 
 the text, particularly with reference to tical application of the Acts of Parlia- 
 
 gas. When the fii-.st edition appeared ment relating to gas and water supply." 
 
 we expressed an opinion that the work — Law Times. 
 
 DAVIS ON REGISTRATION.— Second Edition. With 
 Supplement. 
 
 THE LAW of EEGISTEATION, PAELIAMENTAEY, 
 and MUNICIPAL, with aU the STATUTES and CASES. 
 With a Supplement comprising the Cases decided on Appeal 
 on the Parliamentary and Municipal Registration Act, 1878. 
 By J. E. Davis, Esq., Barrister-at-Law. Post 8vo., \os. cloth. 
 
 1880 
 
 *,* The Supplement may be had separately, 2s. 6d. sewed. 
 
 WOOLRYCH ON SEWERS.— Third Edition. 
 A TEEATISE ON THE LAAV OF SEWEES, 
 
 inchiding the Drainage Acts. By Humphry W. Woolrych, 
 Serjeant-at-Law. Third Edition, with considerable Additions 
 and Alterations. 8vo. 12s. cloth. 1864
 
 MESSRS. HU'ITKKWORTH, 7, FLKKT STRKET, E.C. 23 
 
 PLUMPTRE ON THE LAW OF CONTRACTS. 
 
 A SUMMAEY OF THE PKINCIPLKS OF THE 
 LAW OF SIMPLE CONTRACTS. By Claude C. M. 
 I'LUMPTUE, of the Middle Temple, Esq., Barristor-ut-Law. 
 (Middle Temple Commou Law Scholar, llilary Term, 1877.) 
 Tost .Svo. 85. cloth. 1879 
 
 %* A Companion Work to Undfrhill on Torts. 
 
 " In our last volume we had occ^ision " In Part TI. M-e have the conirtitupnt 
 to mention with approbation two works parts of a Himple contract, the ainw-nt 
 bj- Mr. ^Vathur Umlcrhill, A Suinmaiy of the pailicK, the con.sidcnition, the pro- 
 of the Law of Torts, and a ConciHe niise, contnicts illcKiil at conunon law 
 Manual of the Ljiw relatinfj to Trusts and by statute, and fraudulent con- 
 and Trustees ; the lirst of these had tract-s. 
 
 reached a second edition, and in its " I'art III. g-ives rules for makinif ii 
 preparation the author of the present simple contract, and treats of contracts 
 work was associated with Mr. Under- within the Ith and 17th sections of the 
 hill. In the preparation of this book Statute of Frauds; Statutes of IJmi- 
 Mr. Pluniptre has adopted the lines laid tation ; the discharge of the obli^^ition 
 down by Mr. Underhill ; by means of imposed by the contract by perform- 
 short rules and sub-rules he presents a am* ; by mutual ajrreement; by aword 
 summary of the leadintr principles re- and satisfiu-tion ; and by ojK'ration of 
 latinp to the law of simple contracts, law ; oral evidence and written con- 
 with the decisions of the Courts by which tracts; damages; and contntcts miide 
 they are illustrated. Piu-t I. deals wit}! abroad. 
 
 the parties to a simple contract, and " The book contains upwanls of one 
 treats of those persons exempted from hundred rules, all ably illustrated 
 the performance of their contracts by by ciises, and a very full and well- 
 reason of incapacity, such as infantti, compiled index facilitates reference, 
 miuried women, lunatics, drunkards, It is more particularly addressed to 
 convicts and banknipts. Chapter 4 is students, but pnictitioners of both 
 devoted to contracts by corporations brandies of the lejciU profession will 
 and by agents, and the following chap- tlnd it a useful and trustworthy guide." 
 ter to partners and partnerships gener- — Justice o/Ute I'eace. 
 idly. 
 
 BARRY'S PRACTICE OF CONVEYANCING. 
 
 A TKEATISE on the FKACTICE of CONVEY- 
 ANCING. By W. WiilTTAKEK Bakuy, E.sq., of Lincoln's lun, 
 Barristor-at-Liiw, late hfddcr of th*; Studentship of the Inns of 
 (\)nrt, and Author of "The Statutory Jurisdiction of the Court 
 of Chancery." 8vo. 18s. cloth. 1865 
 
 " This treatise supplies a want which The treatise is the production of a 
 has long been felt. Mi'. Barr>''s work person of great merit and still grouter 
 is essentially what it professes to be, a pimiiise." — Solii-ilnrn' Journal. 
 treati.se on the practice of conveyancing, "Tlie work is clearlv and agreMbly 
 
 in which the theoretical rules of real written, and ably elucioatos the tubjoot 
 property law are referred to only for in hand." — Justice of the Ptaa. 
 Sie puipose of elucidating the practice. 
 
 BARRY'S FORMS IN CONVEYANCING. 
 
 FORMS and PEKCllDllXTS in CONVEYANCING; 
 with Introduction and Practical Notos. By W. Whittaker 
 Barry, of Lincoln's Inn, Barrister-at-Law, Author of a 
 " Treatise on the Practice of Conveyancing." 8vo. 21«. cl. 1872
 
 24 LAW WORKS PUBLISHED BY 
 
 HERTSLET'S TREATIES. 
 
 HEETSLET'S TEEATIES of Commerce, Navigation, 
 Slave Trade, Post Office Communications, Copyright, &c., at 
 present subsisting between Great Britain and Foreign Powers. 
 Compiled from Authentic Dociiments by Edwaud Hertslet, 
 Esq., C.B., Librarian and Keeper of the Papers of the Foreign 
 Office. 14 Vols. 8vo. ISl. 19s. 
 
 *,* Vol I. price 12s., Vol. II. price 12s., Vol. III. price 18s., Vol. IV. price 18s., Vol. V. 
 price 20s., Vol. VI. price 25s., Vol. VII. price 30s., Vol. VIII. price 30s., Vol. IX. 
 price 30s., Vol. X. price 30s., Vol. XI. price 30s., Vol. XII. price 40s., Vol. XIII. 
 price 42s., Vol. XIV. price 42s. cloth, may be had separately to complete sets. 
 Vol. XII. includes an Index of Subjects to the Twelve published Volumes, which 
 Index is also sold separately, price 10s. cloth. 
 
 HERTSLET'S TREATIES ON TRADE AND TARIFFS. 
 
 TEEATIES AND TAEIFFS regulating the Trade 
 between Great Britain and Foreign Nations, and extracts of the 
 Treaties between Foreign Powers, containing "Most Favoured 
 Nation" Clauses applicable to Great Britain, in force on the 1st 
 January, 1875. By Edward Hertslet, Esq., C.B., Librarian 
 and Keeper of the Papers, Foreign Office. Part I. (Austria). 
 Eoval 8vo. 7s. 6rf. cloth. Part H. (Turkey). 15s. cloth. 
 Part in. (Italy). 15s. cloth. Part IV. (China). 10s. cloth. 
 Part V. (Spain). \l. Is. cloth. Part VI. (Japan). 15s. cloth. 
 
 INGRAM'S LAW OF COMPENSATION.— Second Edit. 
 
 COMPENSATION to LAND and HOUSE O^^EES : 
 being a Treatise on the Law of the Compensation for Interests 
 in Lands, &c. payable by Railway and other Public Companies ; 
 with an Appendix of Forms and Statutes. By Thomas Dtin'bar 
 In'gram, of Lincoln's Inn, Esq., Barrister-at-Law, now Professor 
 of Jurisprudence and Indian Law in the Presidency College, 
 Calcutta. Second Edition. By J. J. Elmes, of the Inner Temple, 
 Esq., Barrister-at-Law. Post 8vo. 12s. cloth. 18G9 
 
 '' Whether for eompanie.s taking- land "This work appears to be carefully 
 
 or uoldiai? it, Mr. Ingram's volume will prepared as regards its matter. This 
 
 be a welcome guide. With this in his edition is a third larger than the first ; 
 
 hand the legal adviser of a company, or it contains twice as many cases, and an 
 
 of an owner and occupier whose pro- enlarged index. It was much called for 
 
 perty is taken, and who demands com- and doubtless will be found very useful 
 
 pen-sation for it, cannot fail to perform by the practitioner." — Law Magazine. 
 his duty rightly." — Law Tini'-.s.
 
 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 25 
 
 HIGGINS'S DIGEST OF PATENT CASES. 
 
 A DIGEST of tho KEP(^KT?:i) 0.\SE8 rolatinj? to tlie 
 Law and Practice of LETTERS PATENT for INVENTIONS, 
 decided from the passing of the Statute of Monopolies to the 
 present time. By Clement IIigoins, M.A., F.C.S., of the 
 Inner Temple, Barristcr-at-Law. 8vo. 10«. cloth, not. 1875 
 
 "Mr. Hi^^ins's work ■will be useful to every decision), anil the nejit und 
 as a work of reference. Upwards of 70tJ carefully executed index (which is de- 
 cases are digested ; and, besides a table cidedly above the averajfe) are such a.i 
 of contents, tliere is a full index to the no reader of ' e».sentiiilly a book of rcfer- 
 subject matter ; and that index, which ence' could quarrel with." — Solicitors' 
 greatly enhances the value of the book, 
 must have cost the author much time, 
 labour and thouffht." — />««■ Journal. 
 
 " ' This is essentiiUly,' says Mr. Hip- 
 gins in his preface, ' a book of reference.' 
 It remains to be added whether the 
 compilaticjn is reliable and exhaustive. 
 It is only fair to say that we think it is ; 
 and we will add, that the arranijement 
 of subject matter (chronological under 
 each heading, the date, and double or 
 even treble references being appended 
 
 Journnl. 
 
 " The very elaborate DigcBt just com- 
 plctod by yii. Higgins Ls worthy of Iwing 
 recognized by the professiim a« a tho- 
 rouglily useful book of reference upon 
 the subject. Mr. Iligvin.s's object lias 
 been to supply a reliable and exhaus- 
 tive sumniarj- of the reported patent 
 ca,ses decided in English courts of law 
 and equity, and this object he appears 
 to have attained."— .Vi'iinsr Journal. 
 
 DOWELL'S INCOME TAX LAWS. 
 
 THE INCOME TAX LAAVS at present in force in tlie 
 United Kingdom, with practical Notts, Appendices and a copious 
 Index. By Stephen Dowei-l, ^LA., of Lincoln's Inn, Assistant 
 Solicitor of Inland Eevonuo. Svo. 12s. 6rf. cloth. 1874 
 
 well done in every respect." — Imu) 
 Magazine. 
 
 " Mr. Dowell's official position emi- 
 nently tits him for the work he has 
 undertaken, and his history of the 
 Htamp Ijiws shows how carefully and 
 conscientiously he performs what he 
 undertakes."—^ ujJice o/the Peace. 
 
 " To commissioners and all con- 
 cerned in the working of the Income 
 Tax Mr. Dowell's book will be of great 
 value." — Law Journal. 
 
 " For practical purposes the compila- 
 tion must prove very useful." — Law 
 Times. 
 
 " We can honestly commend Mr. 
 Dowell's work to our readers as being 
 
 DAVIS'S CRIMINAL LAW CONSOLIDATION ACTS. 
 
 THE CPJMINAL LAW CONSOLIDATP >N ACTS, 
 1861 ; with an Introduction and practical Notes, illustruted by 
 a copious reference to Cases decided by the Court of Criminal 
 Appeal. Together with Alphabetical Tables of Offences, a.s well 
 those punishable upon Summary Con\-iction as unon Indictment, 
 and including the Offences under the New Bankruptcy Act, so 
 arranged as to present at one view the particular Offonco, the 
 old or new Statute upon which it is founded, and the Limits of 
 Punishment; and a full Index. By James Edwauu Davis, 
 Esq., Barrister-at-Law. I'imo. 10s. cloth. 18U1
 
 26 LAW WORKS PUBLISHED BY 
 
 SHELFORD'S SUCCESSION, PROBATE AND LEGACY 
 
 DUTIES.— Second Edition. 
 THE LAW relating to the PEOBATE, LEGACY 
 and SUCCESSION DUTIES in ENGLAND, lEELAND and 
 SCOTLAND, including all the Statutes and the Decisions on 
 those Subjects: with Forms and Official Eegulations. By 
 Leonard Shelford, Esq., of the Middle Temple, Barrister-at- 
 Law. The Second Edition, with many Alterations and Additions. 
 12mo. 16s. cloth. 1861 
 
 BAYLIS'S LAW OF DOMESTIC SERVANTS. 
 By Monckton. — Fourth Edition. 
 
 THE EIGHTS, DUTIES AND EELATIONS OE 
 DO]MESTIC SEEVANTS AND THEIE MASTEES AND 
 MI8TEESSES. With a short Account of Servants' Institutions, 
 &c., and their Advantages. By T. Henry Baylis, M.A., 
 Barrister-at-Law, of the Inner Temple. Fourth EcUtion, with 
 considerable Additions, by Edward P. Monckton, Esq., B.A., 
 Barrister-at-Law, of the Inner Temple. Fscap. 8vo. 2s. 1873 
 
 SEABORNE'S LAW OF VENDORS & PURCHASERS. 
 
 Second Edition. 
 
 A CONCISE MANUAL of the LAW of VENDOES 
 
 and PUECHASEES of EEAL PEOPEETY ; with a Supple- 
 ment, including the Vendor and Purchaser Act, 1874, with Notes. 
 2nd Edit. By Henry Seaborne. Post 8vo. 10s. 6cZ. cloth. 1879 
 
 *j, '■ This work is designed to furnish Practitioners with an easy means of reference to the 
 Statutory Enactments and Judicial Decisions regulating the Transfer of Real Pro- 
 perty, and also to bring these authorities in a compendious shape under the attention 
 of Students. 
 
 " The book before us contains a good the most important branches of the 
 deal, especially of practical information law. The student will tind this book 
 as to the course of conveyancing matters a useful introduction to a dry and 
 in solicitors' offices, which may be use- difficult subject." — Law Examination 
 ful to students." — Solicitors' Journal. Journal. 
 
 " AVe will do Mr. Seaborne the justice " Intended to furnish a ready means 
 
 to say that we believe liis work wUl be of access to the enactments and deci- 
 of some use to articled and other clerks sions govei-ning that branch of the law." 
 in soheitors' offices, who have not the — The Times. 
 
 opportunity or inclination to refer to the " The book will bo found of use to the 
 
 standard works from which his is com- legal practitioner, inasmuch as it will, 
 X^iled." — Law Journal. so far as regards established points of 
 
 "The value of Mr. Seabome's book law, be a handier work of reference than 
 consists in its being the most concise the longer treatises we have named." — 
 summary ever yet published of one of Athenasum. 
 
 TOMKINS' INSTITUTES OF ROMAN LAW. 
 
 THE INSTITUTES OF EOMAN LAW. Part I., 
 
 containing the Sources of the Eoman Law and its External 
 History till the Decline of the Eastern and Western Empires. 
 By Frederick Tomkins, M.A., D.C.L., Barrister-at-Law, of 
 Lincoln's Inn. Eoy. 8vo. 12s. (To be completed in 3 Parts. ) 1867
 
 MESSRS. BUTTERWORTH, 7, FI,P;ET STREET, E.C. 27 
 
 DREWRY'S EaUITY PLEADER. 
 
 A CONCISE TREATISE on the Priiu-iplos of EQUITY 
 PLEADING, -wath I'rocodoiits. By 0. Stewakt Drewky, Esq., 
 of the Inner Temple, Barrister-at-Law. V2mo. 6a. boards. 18o8 
 
 GAIUS' ROMAN LAW. By Tomkins and Lemon. 
 
 {Dedicated by permuision to Lord Chancrllor J/atfirrUy.) 
 
 THE COMMENTMIIES of GAIUS on the ROMAN 
 LAW: with an Entrlish Translation and Annotations. By 
 Frederick J. Tomkins, Esq., M.A., D.C.L., and Wilijam 
 George Lemon, Esc}., LL.B., Barristers-at-Law, of Lincoln's 
 Inn. 8vo. 27s. extra cloth. iNfjy 
 
 BRANDON'S LAW OF FOREIGN ATTACHMENT. 
 
 A TREATISE upon the CUSTOMARY LAW of 
 FOREIGN ATTACHMENT, and th(^ l'RA("riCE of the 
 M^iYOR'S COURT of the CITY OF L( )N1)( )N thoruin. With 
 Forms of Precedure. By WoouxiiORrE Br.vndox, Esq., of tho 
 Middle Temple, Barrister-at-Law. 8vo. 14s. cloth. 1861 
 
 MOSELEY ON CONTRABAND OF WAR. 
 
 WHAT IS CONTRABAND OF WAR AND WHAT 
 IS NOT. A Treatise comprising all tho American and Ent,'lish 
 Authorities on the Subject. By Joseph Moseley, Estj., B.C.L., 
 Barrister-at-Law. Post 8vo. 5s. cloth. 1861 
 
 SMITH'S BAR EDUCATION. 
 
 A HISTORY of EDUCATION for the ENGLISH 
 BAR, with SUGGESTIONS as to SUBJECTS and METHODS 
 of STUDY. By Philip Axstie Smith, Esq., M.A., LL.B., 
 
 Barrister-at-Law. 8vo. 9s. cloth. I860 
 
 WILLS ON EVIDENCE. Fourth Editicii. 
 
 AN ESSAY on tho rRINCll'LES of CIRCUMSTAN- 
 TIAL EVIDENCE. Illustrated by numerous Cases. By the 
 late William Wills, Esq. Fourth Edition. Edited by his Son, 
 Alfred Wills, Esq., Barrister-at-Law. 8vo. 10«. cloth. 1S62 
 
 LUSHINGTON'S NAVAL PRIZE LAW. 
 
 A MANUAL of NAVAL I'iMZE LAW. By Godfrey 
 LrsniNGTON, of the Inner Temple, Esq., Barrister-at-Law. 
 Royal 8vo. 10s. 6il. cloth. 1866
 
 28 LAW WORKS PITBLISHED BY 
 
 ROUSE'S COPYHOLD ENFRANCHISEMENT 
 MANUAL.— Third Edition. 
 
 The C'JPTHOLD ENPE.INCHISEMEXT MANTAL; 
 enlarged, and treating tke subject in tke Legal, Practical and 
 Mathematical Points of Yiew ; giving numeTous Forms, Eules, 
 Tables and Instractions for Calculating tbe Values of the Lord's 
 Eights ; Suggestions to Lords' Stevards, and Copyholders, pro- 
 tective of their several Literests, and to Valuers ia performance 
 of their Duties: and including the Act of 1858. and Proceedings 
 in Enfranchisement under it. By Eot.t.a Eouse, Esq., of the 
 Middle Temple, Barrister-at-Law. Third Edition, much enlarged. 
 12mo. 10s. &:L cloth. 1866 
 
 ■■ When we consider what f avottr ilr. fiiiid ftiHtinii of fbtt 'wodc is LeCuxi us. 
 Eonae'3 Practicil Man and Practical B is a wnk at giest p actia l -valne. 
 Conveyancer have found with the pro- awifatMp to lawjeis and. Imjtatat, We 
 f ession. we I'eel sxire the legal world wiD can tm^ and beaxtify leoaiiBead ttas 
 greet with pleasure a new and impTovcd Toinnie to Qie pKaetiiiuutii, tte stewnd 
 edition of hia Copyhold 'vra.nna.l The and the copyholder.'* — Lmm Jbgrnnme. 
 
 HEALES'S HISTORY AND LAW OP PEWS. 
 
 THE HTSTOEY and the LAW oi CHUECH SEATS 
 or PEWS. By Axfbed BLeai.es. F.S.A., Proctor in Doctors' 
 Commons. 2 vols. 8vo. Ids. cloth. 1S72 
 
 "■ Altogether we can commend Mr. of the antfaor'a indnstry, talent and 
 Heales's book as a, well conceived and learning." — Ltnc JouraaL 
 weE execnted work, which ia evidence 
 
 BRABROOK'S WORK ON CO-OPERATION. 
 
 THE L-\W and PEACTICE of CO-OPEEATIVE or 
 INT>rSTPJAL and PEOVIDEKT SOCLETTES : including the 
 Wiading-up Clauses, to -which are added the Law of France on 
 the same subject, and Eemarks on Trades Unions. By Edward 
 W. Brabrook. F.S.A., of Lincobi's Inn, Esq., Banister-at-La-w, 
 Assistant-Eeffistrar of Eriendlv Societies in England- 6».cL 1869 
 
 COOMES' SOLICITORS" BOOKKEEPING. 
 
 A M..l^rr.\L OF <l»LICIIijES" EOOKKEEPINCt : 
 comprising practical exemplifications of a concise and simple 
 plan of Double Entry, -vrith Forms of Account and other Books 
 relating to Bills of t'osts. Cash, &c., sho-wing their operation, 
 giving directions for keeping, posting and balancing them, and 
 Lnstnictions for drawing costs. Adapted for a large or small, 
 sole or partnership business. Bv W. B. Coombs, Law Accountant 
 and Costs Draftsman. 1 vol. Svo. lOs. 6<Z. cloth- 1868 
 
 •«• TTi^ <:■:!-!.,■ •i.i A ■.■■■:unt E'-oka descrih-ji in tht ahovt work, the forms of ■mUAmn coff- 
 - . . ..^ ■■■ .ni. the PiibliahitTi , at the prices stated ia the work at f^fe ft-i-
 
 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 29 
 
 WIGRAM ON WILLS. -Fourth Edition. 
 
 AN EXAMINATION (>F THE lUTLES OF lAW 
 rcsiu'ctin.i,' tho Admission <.f ]-;XTl{lN8IC EVIDENCE in Aid 
 ot thu INTEIU'KETATION of WILLS. By the RiKht Hon. Sir 
 J AMKs WiGRAM, Kilt. Tho Fourth Edition, propurcd for the press, 
 with tho sanction of tho learned Author, by \v. Knox Wiokam, 
 M.A.,of Lincoln'8lnn,Esq.,Barrister-at-Law. 8vo. lls.cl. 1858 
 
 ♦ 
 LAWRENCE'S PARTITION ACTS, 1868 and 1876. 
 
 THE COiAirULSORY SALE OF KEAL ESTATE 
 under the POWERS of the PARTITION ACT, 18G8, as Amended 
 by the Partition Act, 1(S70. By PiiiLii' Henuy LawuenX'E, of 
 Lincoln's Inn, Esq., Barrister-at-Law. 8vo. 8s. cloth. 1877 
 
 " Mr. Lawrence is evidently ac- suit. On the sale of land tlic whole 
 
 quainted with his subject. He explains subject is ably treatt-d, and the book 
 
 the state of the law previous to the contains, amon^fst other thingv, a valu- 
 
 Statute of 1868, and the means by which able selection of leading cases on the 
 
 under it persons may now maintain a subject." — Justice of the Peace. 
 
 BUND'S LAW OF SALMON FISHERIES. 
 
 THE LAW relutinf- to tlio SALjM(JN FISHERIES 
 of ENGLAND and WALES, as amended by "The Salmon 
 Fishery Act, 1873;" -with the Statutes and Cases. By J. W. 
 Willis Bund, M.A., LL.B., of Lincoln's Inn, Barristor-at-Law, 
 Vice-Chairman Severn Fishery Board. Post 8vo. 15s. cl. 1876 
 
 "Mr. Bund ha.s done tho work excel- " We havi," always found his opinion 
 
 lently well, and nothin;? further in this sound, and his explanations dear and 
 way can be desired." — T/f Finkl. lucid." — jMnd and Water. 
 
 TROWER'S CHURCH BUILDING LAWS, Continued 
 to 1874. 
 
 THE LAW of the BUILDING of CHUECHES, 
 PARSONAGES, and SCHOOLS, and of tho Division of Parishes 
 and Places. By Charles Fkancis Trower, M.A., of tho Inner 
 Temple, Esq., Barrister-at-Law, late Fellow of Exeter College, 
 Oxford, and late Secretarj' of Presentations to Lord Chancellor 
 Westbury. Post 8vo. 9s. cloth. 1874 
 
 *^* The SuppLineiit may be had separately, price \a. sewed. 
 
 BULLEY & BUND'S NEW BANKRUPTCY MANUAL. 
 A MANUAL OF THE LAW AND PKACTICE 
 
 OF BANKKTi'TCY as Amended and Consolidated by tho 
 Statutes of 1809, with an APPENDIX containing the Statutes, 
 Orders and Forms. By JoilN F. BuLLKY, B.A., and J. W. 
 Willis Bund, M.A.,LL.B., Barristers-at-Law. I'Jmo. 16s. cloth. 
 With a Supplement including the Orders to April, 1870. 
 *^* The Supplement may be had separately. Is. sewed.
 
 30 
 
 LAW WORKS PUBLISHED BY 
 
 OKE'S MAGISTERIAL SYNOPSIS.— Thirteenth Edit. 
 
 THE :MAGISTEEIAL synopsis : a Practical Guide 
 for Magistrates, their Clerks, Solicitors, and Constables; com- 
 prising Summary Convictions and Indictable Offences, with their 
 Penalties, Punishments, Procedure, »S:c. ; alphabetically and 
 tahularly arranged : "svith a Cojiious Index. Thirteenth Edition, 
 much enlarged. By Thomas W. Saunders, Esq., Metropolitan 
 Police Magistrate. In 2 vols. 8vo. 63s. cloth; 73s. calf. 1881 
 
 " Twelve editions in. twenty- Synopsis. The law administered 
 
 eight years say more for the prac- 
 tical utility of this work than any 
 niimber of favourable re^dews. Yet 
 we feel bound to accord to the 
 learned Eecorder of Bath the praise 
 of having fuUy maintained ia the 
 present edition the well-earned re- 
 putation of this useful book." — 
 Laic Mcujazinc. 
 
 "The industrious, capable and 
 painstaking Recorder of Bath (Mr. 
 T. W. Saunders) has edited the 
 twelfth edition of Oke's Magisterial 
 
 by magistrates, like almost every 
 other branch of our jurisprudence, 
 goes on growing almost every day 
 of the legal year, and a new edition 
 of such a work as this every few 
 years means no small amount of 
 labour on the part of the editor. 
 We are glad to see that Mr. Saun- 
 ders has bestowed great care in the 
 revision of the index, which is now 
 a feature in the work." — Law 
 Times. 
 
 OKE'S HANDY BOOK OF THE GAME LAWS.— 3rd Ed. 
 
 A HANDY BOOK OF THE GAJME LAWS; containing 
 the whole Law as to Game, Licences and Certificates, Gun 
 Licences, Poaching Prevention, Trespass, Eabbits, Deer, Dogs, 
 Birds and Poisoned Grain, Sea Birds, Wild Birds, and Wild 
 Fowl, and the Eating of Game thi'oughout the United Kingdom. 
 Systematically arranged, with the Acts, Decisions, Notes and 
 Forms, &c. Third Edition. With Supplement to 1881, con- 
 taining the Wild Birds Protection Act, 1880, and the Ground 
 Game Act, 1880. By J. W. Willis Bund, M.A., LL.B., of 
 Lincoln's Inn, Esq., Barrister-at-Law ; Vice-Chairman of the 
 Severn Fishery Board. Post 8vo. 16s. cloth, 1881 
 
 *«* The Supplement may he had separately, 2s. Gd. sewed. 
 
 " A book on the Game Laws, 
 brought up to the present time, 
 and including the recent acts with 
 regard to wild fowl, &c., was miich 
 needed, and Mr. Willis Bund has 
 most opportunely supplied the want 
 by bringing out a revised and en- 
 larged edition of the very useful 
 handy book of which the late Mr. 
 Oke was the author." — The Field. 
 
 "The editorship of the present 
 publication has, we are happy to 
 say, fallen into such able hands as 
 those of Mr. Willis Bund. In con- 
 
 clusion, we would observe that the 
 present edition of the above work 
 will be found by legal men or others 
 who require any reliable informa- 
 tion on any subject connected with 
 the game laws, of the greatest 
 practical utility, and that landed 
 j)roprietors, farmers, and sports- 
 men will find ' Oke's Game Laws' 
 an invaluable addition to their 
 libraries, and an easy means of 
 enlightening themselves on a sub- 
 ject which closely affects them." — 
 Land and Water.
 
 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 31 
 
 OKE'S MAGISTERIAL FORMULIST. Sixth Edition. 
 
 THE MAdlSTKIUAL FoKMULlST: l..-in},- a ( '.>iii- 
 ploto Collection of Forms and Prucwlonts lor jjructifiil nno in 
 all Cases out of Quarter Sessions, and in Parotliial Matters, l)y 
 Magistrates, their Clerks, Attornies and Constaldes. By OEoiiOK 
 C. Oke. tiixth Eiiitiou, enlarged and improved. By Thomas 
 W. SAtn^BERS, Esq., Metropolitan Police Magistrate. In 1 vol. 
 8vo. 38s. cloth; 43s. calf. IHSl 
 
 " Mr. Suiindei's has not been hend recent eniictments is of tlio 
 called upon to perform the func- very first importance. In si-lectiiiR 
 tions of an annotator merely. He Mr. Saunders to follow in the Btt;i)8 
 has had to create, just as Mr. Oke of Mr. Oke the publi-shera exercised 
 created when he wi'ote his book. wise discretion, and we couf^ratu- 
 This, of course, has necessitated late both author and publishfrs 
 the enlargement and remodelling upon the complete aiirl very fx- 
 of the iude.K. No work probably is cellent maimer ni which this edition 
 in more use in the offices of magis- has been prepared and is now pre- 
 tratesthan 'Oke'sFormulist.' Tliat sented to the profession." — Law 
 it should be reliable and compre- Times. 
 
 OKE'S LAWS AS TO LICENSING INNS, &c.-2nd Edit. 
 
 THE LAWS AS TO LICENSING INNS, &c. ; 
 contaiuing the Licensing Acts, 1872 and 1874, and the oth»!r 
 Acts in force as to Ale-houses, Beer-housos, "Wine and Eefre.sh- 
 ment-houses, Shops, &c., •whore Intoxicating Liquors are sold, 
 and Billiard and Occasional Licences. Sj'stematically arranged, 
 with Explanatory Notes, the authorized Fonns of Licences, 
 Tables of Offences, Index, &c. BvGeokge C. Oke. 2n(I edit, by 
 W. C. Glex, Esq., Barrister-at-Law. Post 8vo. lOs. cloth. 1874 
 
 — ♦ — 
 OKE'S FISHERY LAWS.— Second Edition by Bund. 
 
 THE FISHEKY LAWS : A Handy Book of tlio Fisliory 
 Laws : containing the Law as to Fisheries, Private and I'ublic, 
 in the Inland Waters of England and Wales, and the Fresh- 
 water Fi-sheries Preservation Act, 1878. Systematically ar- 
 ranged : with the Acts, Decisions, Notes, and Forms, by GEf)KOE 
 G. Oke. Secomi Edition, by J. W.WlLLls Bu.VB, M.A., LL.B., 
 of Lincoln's Inn, Barrister-at-Law, Chairman of the Severn 
 Fishery Board. Post 8vo. os. cloth. 1878 
 
 OKE'S LAW OF TURNPIKE ROADS. -Second Edit. 
 
 THE LAW OF TUKNPIKE liOADS; comprising tlio 
 whole of the General Acts now in force, including thosK of 18(il ; 
 the Acts as to Union of Trusts, for facilitating Arrangonients with 
 their Creditors; as to the interference bv Kaihvays with Koads, 
 their Non-repair, and enforcing Contril)utions from Parishes, 
 &c., practically arranged. With Ca.sos, cojiious Notes, all the 
 necessary Fomis, and an elaborate Index, &<•. By Cy.nnav. 
 C. Oke. Utroiid Edition. 12nio. 18.1. cloth. 18()1
 
 32 LAW WORKS PUBLISHED BY 
 
 CLEEKE ANTt BRETT'S CONVEYANCING AND LAW 
 
 OF PEOPERTY ACT, 1881, &c.— Second Edition. 
 
 THE CONYETANCING- AND LAW OF PEOPEETY 
 
 ACT, 1881, together with, the Vendor and Purcliaser Act, 1874, 
 and the Solicitors' Eemuneration Act, 1881. With Notes and 
 an Introduction. By Aubrey St. Jokjt Clekke, B.A., late 
 Scholar and Student of Trinity College, DubHn, and Thomas 
 Brett, LL.B. London XJniyersity, B.A., late Scholar and 
 Student of Trinity College, Dublin, Exhibitioner in Eeal Pro- 
 perty and Equity, and Holder of the First Certificate of Honour, 
 Michaelmas, 1869 ; both of the Middle Temple, Esquires, Bar- 
 risters-at-Law. Second Edition. Post 8vo. Is. 6d. cloth. 1882 
 
 " The chief objects of this work, the tive operation ; and the work concludes 
 authors state in their preface, are — with a consideration of the Vendor and 
 (1) To point out the variotis changes Purchaser Act, 1S74 iwhich ia, of 
 which have been introduced by the new course, closely connaited with the new 
 Act into the law and practice of con- Act), and the Solicitors' Bemnnaraticsi 
 veyancing ; (2) to criticize the pro- Act, 1S81. The work ia written, no 
 viaiona of the Act, pointing out diffi- doubt, mainly for the practitioner, btit 
 culties likely to arise, and anggesting the student who ia reading for eiami- 
 means to evade those ditficiilties ; 3 to nation next year will require an accurate 
 render the work as convenient aa knowledge of this Act, and it l3 very 
 possible for the purpose of reference, doubtful whether he will be able to 
 by furnishing the reader with a com- meet with a better treatise on it than 
 prehensive index and a complete table that contained in the pages being con- 
 of cases. These objects appear to have sidered." — Gilson's Final. 
 been attained. The introductory chapter "It ia not possible to exaggerate the 
 deals with the effect of the Act in a utility of the work brought out by 
 masterly manner, and shows that the Messrs. Gierke and Brett. Xo student 
 authors are intimately acquainted with or practitioner who desires to be ac- 
 the subject in hand. Each section of quainted with the latest pha.se of real 
 this important Act ia then dealt with property legislation ought to be with- 
 fully, and its effect on the exiting law out it. The authors are to be con- 
 explained, great pains being taken to gratulated upon the speed with which 
 call attention to the clauses which are, they have brought out the voliime." — 
 and those which are not, of retrospec- Law Examination Journal. 
 
 THE LAW EXAMINATION JOXJENAL. 
 
 THE LAW EX.\MINATIOX .JCjUEXAL. Edited by 
 Herbert Newma^t Mozley, M.A., Fellow of King's College, 
 Cambridge ; and of Lincoln's Inn, Esq., Barrister-at-Law. 
 (Published every Legal Sittings.) 
 
 No. 52. Trinity, 1882. Contents:—!. Honors Examination, Aprfl, 1882; 
 Questions and Answers. 2. Final Examination, June, 1S82; Qnestiona and 
 Answers. 3. Intermediate Examination, June, 1882; Questions and Answers. 
 4. Digest of Cases. 5. Correspondence and Notices. 
 
 Price l3. each Number, by post Is. Id. Nos. 34 <£' 36 [double number), price 2*., 
 
 by post 23. 2d. 
 
 *,• All back numbers, commencinff with Ab. L, may be had. 
 
 •,• Copies of Vol. I., ciyntainini; Nos. 1 to 14, tcith full Indexes and Tables of Case 
 Cited, may now be had, price lft». bound in cloth. 
 Vol. II., containing Nos. 15 to 28, with Index, price in cloth, 16s. 
 Vol. Ill, containing Nos. 29 to 45, price 1&». dd. cloth. 
 
 The Indexes to Vols. II. and III. may be had separately to complete copies for bindings, 
 price 6d. each sewed.
 
 HUNT'S BOUNDARIES. FENCES & FORESHORES.— 
 
 Second Edition. 
 
 A TKEATl^E uu tlio LAAV rdatinfr to BOUNDAIUES 
 and FENCES, and to the Hights of Property on tho Sea Shoru 
 and in the Beds of Public Rivers and other Waters. Second 
 Edition. By Artuur Joseph Hunt, of tho luner Temple, Esq., 
 Ban-ister-at-Law. 12uio. V2s. cloth. 1870 
 
 " There are few more fertile sources 
 of litigiition than those dealt with in 
 Mr. Hunt's valuable book. It is sulti- 
 cient here to say that tlie volume ought 
 to have a lars'er circulation than ordi- 
 narily belong to law books, tluit it 
 ought to be found in every country 
 gentleman's libraiy, that the cases are 
 broug-ht down to tho latest date, and 
 that it is carefully prepared, clearly 
 ■written and well edited." — Law May- 
 a'Mne. 
 
 " It speaks well for this book, that it 
 has so soon passed into a second edition. 
 That its utility has been appni iated is 
 shown by its success. Mr. Hunt has 
 availed liiiuself of the opjioi t imity of a 
 second edition to note up all 1 he cjises to 
 this time, and to extend considerably 
 some of the chapters, especially that 
 which treats of rights of property on 
 
 the .sea.shore and the subjeota of sea 
 walls and commissions of sewers." — 
 Law Titifs. 
 
 "Mr. Hunt chose a p<>od subject for 
 a 8e7)anite tn'utis*' on Houmlanes and 
 Fences and Ui^^htM to the .Se)L->hoie, and 
 we are not surprised to tind that a 
 second edition of his book lia-s been 
 called for. Tlic present edition eonttiins 
 much new niatttr. The ehajjter espe- 
 cially which treats on rights of propi-rty 
 on the .seashore, which has Ix-en pn-atly 
 extended. Additions liave l>ei'n also 
 made to the chapters relating to the 
 fencing of the property of mine owners 
 and railway companies All the ca-sts 
 wliieh have been decided since the work 
 first Bppeare<l have been intnKlue<xl in 
 their yiroper plac<s. Thus it will be 
 seen this new edition hiuj a considerably 
 enhanced value." — Soliciior^ Joumai. 
 
 RUEGGS EMPLOYERS' LIABILITY ACT. 
 
 A TREATISE upon the EMPLOYERS' LIABH^ITY 
 ACT, 1880, with Rules, Forms and Decided Cases. By A. II. 
 EuEGG, of the Middle Temple, Barrister-at-Law. 1 vol. post 
 8vo. 5s. cloth. 1881 
 
 COLLIER'S LAW OF CONTRIBUTORIES. 
 
 A TREATISE on the L.\W OF ( UNTRIBUTORIES 
 in the Winding-up of Joint-Stock Companies. By Roheht 
 Collier, of the Inner Temple, Esq., Barrister-at-Law. Post 8vo. 
 9s. cloth. 
 
 " Mr. Collier's general arrangement 
 appears to have been carefullv de\-ised, 
 and is probably as neat as die nature 
 of the subject admits of. It is impos- 
 sible after a perusal of the book to 
 doubt that the author has honestly 
 studied the subject, and has not con- 
 tented himself with the practice of 
 piecing together head notes from re- 
 ports." — Solicitors' Jounial. 
 
 1875 
 
 "Mr. Collier has not shnmk from 
 pointing out his \-iews as to tho recon- 
 cilability of apparently c<mflicting deci- 
 sions or as to many iH)ints on which the 
 law is still unsettled; without making 
 any quotations for the i)uri>os<' of illn»- 
 tniting the aliove remarks, we think wo 
 are justitietl in conmiending this treatiMS 
 to the favourable consideration of the 
 profession." — Iaiw Journal.
 
 34 LAW WORKS PUBLISHED BY 
 
 THE BAR EXAMINATION JOURNAL. 
 
 THE EAE EXAIkllNATION JOUENAL, containing 
 the Examination Papers on all the subjects, with Answers, set 
 at the General Examination for Call to the Bar. Edited by 
 A. D. Tyssex, B.C.L., M.A., Sir E. K. Wilsox, Bart., M.A., 
 and W. D. Edwards, LL.B., Barristers-at-Law. 3s. each, bv 
 post 3s. Id. Nos. 3, 6, 9, 10, 11, 12, 13, 14, 15 and 16, Hii. 
 1872 to Hii. 1878, both inclusive, may now be had. 
 
 *,* jVo. 13 />• n double number, price Gs., hy }>ost 6s. 2d. Kos. 1, 2, 4, 5, 7 and 8 are out 
 
 of print. 
 
 THE PRELIMINARY EXAMINATION JOURNAL, 
 
 And Students' Literary Magazine. 
 
 Edited by James Eule Bexham, formerly of King's Colleg'e, London; 
 Author of "The Stiident'.s Examination Guide," iS:c. 
 
 Now Complete in Eighteen Numbers, containing all the Questions, with Answers, 
 from 1871 to 1875, and to be had in 1 Vol. 8vo., price 18s. cloth. 
 
 Nos. I. to XVIII. may still be had, price Is. eaeli, by post Is. \d. 
 
 CUTLER'S CIVIL SERVICE OF INDIA. 
 
 ON EEPOETING CASES for their PEEIODICAL 
 EXAMINATIONS by SELECTED CANDIDATES for the 
 CIVIL SERVICE of INDIA. Being a Lectm-e deUvered on 
 Wednesday, June 12, 1867, at King's College, London. By 
 John Cutler, B.A., of Lincoln's Inn, Barrister-at-Law, Pro- 
 fessor of English Law and Jurisprudence, and Professor of 
 Indian Jm-isprudence at King's College, London. 8yo. Is. 
 
 BROWNING'S DIVORCE AND MATRIMONIAL 
 PRACTICE. 
 
 THE PEACTICE and PEOCEDUEE of the COTJET 
 for DIVOECE AND ALVTEIMONLVX CAUSES, including: 
 the Acts, Rules, Orders, Copious Notes of Cases and Forms of 
 Practical Proceedings, \sath Tables of Costs. By W. Ernst 
 Browning, Esq., of the Inner Teuiple, Barri.ster-at-Law. Post 
 8vo. 8s. cloth. 1862 
 
 PHILLIPS'S LAW OF LUNACY. 
 
 THE LAW CONCEENINCr LUNATICS, IDIOTS, 
 and I'ERSONS OF UNSOUND MIND. By Charles P. 
 pHiLLirs, M.A., of Lincoln's Inn, Esq., Barrister-at-Law, and 
 Commissiouor in Lunacy. Post 8yo. 18s. cloth. 1858
 
 MESSRS. BUTIERWORTH, 7, FLEET STREET, B.C. 36 
 
 UNDERHILL'S "FREEDOM OF LAND." 
 
 "FREEDOM OF EAND," am. WHAT IT IMPLIES. 
 By AuTiiUR UxDEiuiiLL, LL.D., of Lincoln's Inn, liarrister-at- 
 Law. Svo. Is. .sewed; by ])o.st lit. 1(/. 
 
 HOLLAND ON THE FORM OF THE LAW. 
 
 ESSAYS upuu tlif EOK.M (.!' the L.VW. I!y Thomas 
 Ersicixk IIoLL^VXl), M.A., EfUow of E.xeter College, and 
 Chiehele Professor of International Law in the UnivisrHity of 
 Oxford, and of Lincoln's Inn, Es(j., Barrister-at-Law. Svo. 
 Is. (ill. cloth. 1870 
 
 WRIGHT ON THE LAW OF CONSPIRACY. 
 
 THE LAW OF CEOriNAL CONSPIRACIES AND 
 AGREEMENTS. By R. S. Whight, of tho Inner Temjilo, Bar- 
 rister-ut-Law, Follow of Oriel Coll., O.xford. Svo. 4s. cloth. 1873 
 
 CHITTY, Jun., PRECEDENTS IN PLEADING. Third 
 Edition. 
 CHITTY, Jun., PEECEDENTS in PLEADING; with 
 
 copious Notes on Practice, Pleading and E\-idenco, by tho late 
 Joseph Chitty, Jun., Esq. Third Edition. By tho late 
 Tompson Chitty, Esq., and by Leofkic Temple, R. O. 
 WiLLi^VMS, and Charles Jeffeky, Estjrs., Barristcrs-at- 
 Law. Complete in 1 vol. loyal 8vo. 38a. cloth. 1868 
 
 LOVESY'S LAW OF MASTERS AND WORKMEN. 
 
 The LAW of AEBITliATlON between MASTERS and 
 WORKMEN, as fomided \ipon the Councils of Conciliation Act 
 of 1867 (30 & 31 Vict. c. 105), tho Miuster and Workmen Act 
 (5 Goo. 4, c. 96), and other Acts, with an Introduction and 
 Notes. By C. W. Lovesy, Es<{., of tho Middle Tomplo. 
 Barrister-at-Law. 12mo. 4«. cloth. 1867 
 
 The Doctrine of Continuous Voyages as applied to 
 
 CONTRABAND of WAR and BLOCIC^VDE, contni-st.d with tho 
 DECLARATION of PAlilS of 1SJ6. By Siu Traveus Twiss, 
 Q.C, D.C.L., &c., &c., President of tho Bremen Conferenco, 
 1876. Read before the Association for tho Rofonn and Codifi- 
 cation of the Law of Nations at tho Antwerp Conferenco, 1877. 
 8vo. 2s. 6cZ. sewed. 
 
 c2
 
 36 LAW WORKS PUBLISHED BY 
 
 Mr. Justice Lush's Common Law Practice. By Dixon. 
 
 Third Edition. LUSH'S PRACTICE of the SUPEEIOR 
 COURTS of COMMON LAW at WESTMINSTER, in Actions 
 and Proceedings over which they have a common Jurisdiction ; 
 with Introductory Treatises respecting Parties to Actions; Attor- 
 nies and Town Agents, their Qualifications, Rights, Duties, 
 Privileges and Disabilities; the Mode of Suing, whether in 
 Person or by Attorney, in Forma Pauperis, &c. &c. &c. ; and 
 an Appendix, containing the authorized Tables of Costs and 
 Fees, Forms of Proceedings and Writs of Execution. Third 
 Edition. By Joseph Dixon, of Lincoln's Inn, Esq., Barrister- 
 at-Law. 2 vols. 8vo. 46s. cloth. 1865 
 
 The Law and Facts of the Alabama Case with Reference 
 . to the Geneva Arbitration. By James O'Dowd, Esq., Barrister- 
 at-Law. 8vo. 2s. sewed. 
 
 Gray's Treatise on the Law of Costs in Actions and 
 
 other PROCEEDINGS in the Courts of Common Law at 
 Westminster. By John Gray, Esq., of the Middle Temple, 
 Barrister-at-Law. 8vo. 21s. cloth. 1853 
 
 Rules and Regulations to be observed in all Causes, 
 
 SUITS and PROCEEDINGS instituted in the Consistory Court 
 of London from and after the 26th June, 1877. By Order of 
 the Judge. Royal 8vo. Is. sewed. 
 
 Pulling' s Practical Compendium of the Law and Usage 
 
 of MERCANTILE ACCOUNTS ; describing the various Rules 
 of Law affecting them, the ordinary mode in which they are 
 entered in Account Books, and the various Fomis of Proceeding, 
 and Rules of Pleading, and Evidence for their Investigation at 
 Common Law, in Equity, Bankruptcy and Insolvency, or by 
 Arbitration. With a SUPPLEMENT, containing the Law of 
 Joint Stock Companies' Accounts, under the Winding-up Acts 
 of 1848 and 1849. By Alexander Plt^ling, Esq., of the Inner 
 Temple, Barrister-at-Law. 12mo. 9s. boards. 
 
 Foreshore Rights. Report of Case of Williams «. Nicholson 
 
 for removing Shingle from the Foreshoi'o at Withernsea. Heard 
 31st May, 1870, at Hull. 8vo. Is. sewed. 
 
 Hamel's International Law. — International Law in con- 
 nexion with Municipal Statutes relating to the Commerce, 
 Rights and Liabilities of the Subjects of Neutral States pending 
 Foreign War; considered with reference to the Case of the 
 "Alexandra," seized under the provisions of the Foreign 
 Enlistment Act. By Felix Hargrave Hamel, of the Inner 
 Temple, Barrister-at-Law. Post 8vo. 3s. sewed.
 
 MESSRS. BUTTERWOHTII, 7, I'LKKT STKKKT. K.C. 37 
 
 Keyser on the Law relating to Transactions on the 
 
 STOCK EXCUANOK. J?y IIk.nky Kkysku, Esq., of the 
 Middle Tomplo, Hiinistrr-at-Law. iL'iiio. Ss. cloth. 
 
 A Memoir of Lord Lyndhurst. By William Sidney 
 GiBSOX, Esq., M.A., F.S.A., Biini.stor-at-Law, of LIucoIu'h 
 Inn. Second Edition, eiilarfi;od. Nyo. '2h. C>i/. cloth. 
 
 The Laws of Barbados. (By Authority.) lloyalSvo. 21«. cl. 
 
 Pearce's History of the Inns of Court and Chancery; 
 
 ■vvith Notices of their Ancit-nt I)is(i]iliiif, Kulcs, Orders and < 'us- 
 toms, Eeadinijs, Moots, Mas(iues, llcvcls and Entertainments, 
 including an account of the Eniiiimt Men of tho Foui" Learned 
 and Honourable Societies — Jjiucoln's Inn, tho Inner Temple, tho 
 Middle Tenqile, and Gray's Inn, &c. By IloBEKT E. Peauce, 
 Esq., Ban-ister-at-Law. 8vo. Hs. cloth. 
 
 A Practical Treatise on the Law of Advowsons. By 
 
 J. MiRKiiousE, Esq., Barrister-at-Law. )Svo. lis. boards. 
 
 Williams' Introduction to the Principles and Practice 
 
 of Pleadinf? in the Superior Courts of Law, enil)racinf^ an Outline 
 of the whole Proccedinf>;s in an Action at Law, on Motion and at 
 Judges' Chambers ; together with the Rules of I'leading and IVac- 
 tice, and Forms of all the principal Proceedings. By Watkin 
 Williams, M.P., of the Inner Temple, Esq., Barrister-at-Law. 
 8vo. 12s. cloth. 
 
 The Lord's Table: its true Rubrical Position. The 
 Purchas Judgment not reUable. The Power of the Laity and 
 Churchwardens to prevent Eomanizing. Sugge.stions Ui tho 
 Laity and Parishes for the due ordering of the Table at Com- 
 munion Time. Tho Rubrical Position of the Celebrant. By 
 H. F. Napper, Solicitor. 8vo. Is. sewed. 
 
 Deane's Law of Blockade, as contained in the Judgments 
 of Dr. Lushington and theCases on Blockade decided during \So-i. 
 ByJ. P. DEANE,D.C.L.,AdvocateinDoctors'Commons. Nvo.lOs.cl. 
 
 Linklater's Digest of and Judex to the New Bankruptcy 
 
 ACT, and the accompanying Acts of lS(i!>. I'.y John LimvUVTEU, 
 Solicitor. Second Edition. Imperial Nvo. ijs. Cnl. sewed. 
 
 Pothier's Treatise on the Contract of Partnership. 
 Translated from tho French, with Notes, by 0. D. TuDOR, Esq. 
 Barrister-at-Law. Svo. os. cloth. 
 
 Norman's Treatise on the Law and Practice relating to 
 LETTERS PATENT for INVENTION'S. By John P.vxton 
 NoRM^VN, M.A., of the Inner Temple, Barrister-at-Law. Post 
 Svo. Is. 6d. cloth.
 
 38 LAW WORKS PUBLISHED BY 
 
 Francillon's Law Lectures. Second Series. Lectures, 
 ELE:\rEXTAEY and FA^dlLIAE, on ENGLISH LAW. By 
 J.OTES Feaxcixxox, Esq., County Court Judge. First and 
 Second Series. 8vo. 8s. eacli, cloth. 
 
 Gurney's System of Short Hand, as used by both Houses 
 
 of Parliament. Seventeenth. Edition, revised and improved. 
 
 12mo. 3.S. 6d. cloth. 
 
 " Gumey's is, we believe, admitted to be the best of the many systems." — Law Times. 
 
 Graches' Town Councillors and Burgesses Manual. The 
 TO^^N' COL'XCrLLOES AXD BUEGESSES MAXTJAL : a 
 popular Digest of Municipal and Sanitary Law, Tvith informa- 
 tion as to Charters of Incorporation, and a useful Collection of 
 Forms, especially adapted for newly incorporated Boroughs. 
 By Louis Gaches, LL.M., B.A., of the Iimer Temple, Esq., 
 Barrister-at-Law. Post Svo. 7s. cloth. 
 
 Hunter's Suit in Equity: An Elementary View of the 
 
 Proceedings ia a Suit in Equity. With an Appendix of Forms. 
 By S. J. HrxTER, B.A., of Lincoln's Inn, Barrister-at-Law. 
 Sixth Edition, bv G. W. Laweaxce, AT. A., Barrister-at-Law. 
 Post Svo. 12s. cloth. 
 
 Parkinson's Handy-Book for the Common Law Judges' 
 
 CHA:MBEES. By Geo. H. Paekixsox, Chamber Clerk to the 
 Hon. Mr. Justice Byles. 12mo. 7s. cloth. 
 
 A Treatise on the Law of Sheriff", with Practical Forms 
 and Precedents. By Eichaed Clarke Sewell, Esq., D.C.L., 
 Banister-at-Law, Fellow of Magdalen College, Oxford. Svo. 1?. Is. 
 
 Drainage of Land: How to procure Outfalls by New 
 Drains, or the Improvement of Existing Drains, in the Lands of 
 an Adjoining Owner, under the powers contained in Part TIT, of 
 the Act 24 & 25 Yict. c. 13:3, 1861 ; with Explanations of the Pro- 
 visions, and Suggestions for the Guidance of Landowners, Occu- 
 piers, Land Agents and Surveyors. By J. Wm. Wilsox, Solicitor. 
 
 Feame's Chart, Historical and Legigraphical, of Landed 
 
 Property in England, from the time of the Saxons to the present 
 ^ra, displaying at one view the Tenures, Modes of Descent and 
 Power of Alienation of Lands in England at all times during that 
 Period. On a sheet, coloured, 6s. ; on a roller, Ss. 
 
 The Ancient Land Settlement of England. A Lecture 
 
 delivered at University College, London, October 17th, 1871. 
 By J. W. Willis Bvxt), M.A., Professor of Constitutional Law 
 and History. Svo. Is. sewed.
 
 MESSRS. HUTTERWORTH, 7, FLEET STREET, E.C. 39 
 
 The Case of the Eev. G. C. Gorham against the Bishop 
 
 of Exeter, as lieard ami (Ictfriniiicd liy tin' Judicial ('uiiiiiiittin 
 of the Privy Council on aijpcal Iroin tlio Anlics Court ol' Canter- 
 bury. By EinvAiU) F. Mookk, M.A., Uarrister-at-Law, Author 
 of Moore's Privy Council Reports. Koyal Syo. Hh. elotli. 
 
 Coote's Practice of the Ecclesiastical Courts, with Forms 
 
 and Tables of Costs, liy llKMiV Ciiaui.ks Cooti;, Proctor in 
 Doctors' Commons, &c. One thick vol. Syo. L'Ss. bo;ii-ds. 
 
 Burder r. Heath. Judgment delivered on November 2, 
 1861, by the Eif^lit Honorable Stephen LusniNQTON, D.C.L., 
 Dean of the Arches. Folio, l.s. .sewed. 
 
 The Law relating to Ritualism in the United Church of 
 
 England and Ireland, liy l'\ II. IIamki., Es.[., I5arrist.i-at- 
 Law. 12mo. \s. sewed. 
 
 Archdeacon Hale's Essay on the Union between Church 
 and STATE, and tlio Establisliuiont by Law of tlw Protest4int 
 Refonned Relif^ion in England, Ireland and Scotland. By 
 W. If. llALK, M.A., Archdeacon of London. Syo. 1... sewed. 
 
 Judgment of the Privy Council in the Case of Hebbert 
 V. Purchas. Edited by Euwaku Bullock, of the Inner Temple, 
 Bavrister-at-Tiaw. R(n'al Syo. '2s. (ii/. 
 
 Judgment delivered by Right Hon. Lord Cairns on behalf 
 
 of the Judicial Committee ot' the Priyy Council in tlie Ca-e oi' 
 Martin r. Mackonochie. Edited by W. Ekxst IJltow.MXa, Esq., 
 Barri.-^ter-at-Law. Royal Syo. Is. ()</. sewed. 
 
 Judgment of the Right Hon. Sir Robert J. Phillimore, 
 
 Official Princijjal of the Court of Arches, witii ( 'ases oi' Martin r. 
 Mackonochie and Flamank r. Simp.son. Edit^nl by WAl/rEH 
 G. F. PiiiLLi.MOHE, B.A., of the Middle Tomplo, &c." Second 
 Edition, royal Hyo. 2.s\ (></. spw<'d. 
 
 The Judgment of the Dean of the Arches, also the Judg- 
 ment of the PRIVY CUUN(;1L, in Liddell (d.'rk) and Ilurne 
 and others against Westerton, and Ijiddell (clerk) and Park un<l 
 Evans again.st Boal. Edited by A. F. Bavfokd, LL.I). Royal 
 
 8vo. •if. ()'/. .sewed. 
 
 The Case of Long r. Bishop of Cape Town, embracing 
 
 the opinions of the Judges of ( 'olonial Court hitherto uni)ubli.shed, 
 together -with the decision of the Privy Ccmncil, and Preliniinarj" 
 Ob.servations by the Editor. Royal Syo. (Jv. sewed. 
 
 The Law of the Building of Churches, Parsonages and 
 
 Schools, and of the iJivisiou of Parishi's and Places — continued 
 to 1874. By Charles FkjVNcis Thoweu, M.A., Barri.ster-at- 
 Law. P..st".Svo. '.h. cloth. 
 
 The History and Law of Church Seats or Pews. By 
 A.IIe.vles, F.S.A., Proctor in I >oct<)rs'( 'ominous. 'J vols. .syo. Itw.cl.
 
 PREPARING FOR PUBLICATION. 
 Gierke and Brett's Conveyancing Act, 1882, with the 
 
 Rules, Orders and Pees under the Solicitors' Eemuneration Act, 1881. In 1 vol. 
 post Sto. 
 
 Macaskie on Law of Bills of Sale, including the Act of 1882. 
 
 In 1 vol. post Svo. ; 
 
 TJnderhiU's The Settled Land Act, 1882. in i vol. post 8vo. 
 
 Baxter's Corporation Acts, in i vol. cr. Svo. 
 
 Baxter's Judicature Acts. Fiftli Edition, in i vol. post Svo. 
 
 Hertslet's Treaties, Vol. 15. in i vol. 8vo. 
 
 Law Examination Journal, No. 53, Michaelmas, 1882. 
 
 Clifford and Rickards" Referees Reports; Vol. III. Part 2. 
 
 Bedford's Preliminary (Solicitors) Questions and Answers. 
 
 No. 53, for October, 1882. 
 
 Imprinted at London, 
 nvmher Seuen in Flete strete ivithin Temple barre, 
 
 wh5'lom the signe of the Hande and starre, 
 
 and the Hovse where liued Richard Tottel, 
 
 printer 6g Special patrntr 5 of t!)c bofef $ of tf)c Common latoe 
 
 in the seueral reigns of 
 Kng Edw. VI. and of the qvenes Mar^>e and Elizabeth. 
 
 1553—1882.
 
 LAW WORKS FOE, STUDENTS. 
 
 Mr. Serjeant Stephen's Commentaries on tlie Laws of 
 Eugland. By James Stephen-, Esq., LL.D., Judge of County Courts. 
 The Eighth Edition. Prepared for the Press by Hexey St. Jaates 
 Stephen, Esq., of the Middle Temple, Barrister- at -Law. 4 vols. 
 8vo. 4/. 4.S. cloth. 
 
 *,* This "Work is set for the Intermediate Examination for Solicitors. 
 
 Mozley and Whiteley's Concise Lia-w Dictionary. 8vo. 
 
 204-. cloth. 
 " Law students desirous of cramming will find it acceptable." — Law Times. 
 
 Tndor's Selection of Leading- Cases on Real Property, 
 
 Conveyancing, Wills and Deeds. 3rd Edit. Koj'. Svo. '21. Vis. Qd. 
 cloth. 
 
 Kelly's Conveyancing- Draftsman. 2nd Edit. Post Svo. 
 12s. 6d. cloth. 
 
 " A very useful little book for conveyancing practitioners, i. e. for solicitors 
 and -students." — Law Magazine. 
 
 Plumptre's Principles of the La-w of Simple Contracts. 
 Post Svo. &?. cloth. 
 
 *i* A companion vohmie to UnderliUl on Torts. 
 
 TJnderliill's Manual of Chancery Procedure. Post Svo. 
 
 lO.v. 6'/. cloth. 
 
 Underhill's La-w of Torts or "Wrong-s. Third Edition. 
 
 Post Svo. 8s. cloth. 
 
 "He has set forth thp elements of the law with clearness and accuracy." — 
 
 Laic Times. 
 
 Underhill's La-w of Trusts and Trustees. Post Svo. 8s. cl. 
 
 Fulton's Manual of Constitutional History. Post Svo. 
 
 7s. 6r/. cloth. 
 
 Chute's Relation of Equity to Common La-w^. Post Svo. 
 9s. cloth. 
 
 Trower's Manual of the Prevalence of Equity under 
 Section 2b of the Judicature Act, 1873, amended by the Judicature 
 Act, 1875. By Charles Feancis Teq-wee, Esq., M.A., Barrister at 
 La-w. In Svo. os. cloth. 
 
 In Svn., 3s., b>/ post 3s. Id. Xos. 3. fi, 7 and 9 to 16. both inrb/sive, may sfill he had. 
 
 The Bar Examination Journal. Edited by A. D. Tyssen 
 and W. D. Ed-wards, Esqi-s., Bamstei-s-at-Law. 
 
 In 8vo., Is., hy post. Is. Id. Xos. 1 to 47 may still bt had. 
 
 The La-w Examination Journal and La-w Student's Ma- 
 g-azine. Edited hj H. X. ]Mozley, Esq., Barrister-at-La-\v. 
 CoN'TEXTS OF E.\rii XrMBF.R. — Leading Ai-tieles by the Editor; Reviews of 
 Books ; Summary of new Decisions in Banco and at Nisi Piius ; Analysis 
 of tlie more important practical Statutes of the Session ; Intermediate 
 Examination Questions and Answoi-s ; Final Examination Questions and 
 .\nswers ; Notes on the Examinations ; Correspondence. 
 The Preliminary Examination Journal and Students' 
 Literary Magazine. Edited by J.i3rES Eele Bexham, for- 
 merly of King's College, London. No-w complete, in 18 numbers, 
 and giving all the Questions and Answei-s from February, 1871, to 
 May, 1875, both inclusive, bound in cloth, price l&v. The numbers 
 may still be had separately, price Is. each, by post Is. \d. 
 
 *^* For complete Catalogue, see end of this Book. 
 
 SCHOOL OF LAW LirilAKY 
 
 UNIVERSITY OF CALIFORNIA 
 
 LOS ANGELES
 
 V \ 
 
 / 
 
 / 
 
 LAW WORKS FOR STVI)T.^TS-co,ith,ur,f. 
 
 Boyle's Precis of an Action at Comnion Law. 8vo. 
 hx. cloth. 
 
 Uosely's Articled Clerks' Handy Book, with Directions 
 
 as to course of Study anil other useful Iiifonuution. 'Jml Kditioii, bj* 
 BEDfoKD. I'ost Svo. 8*. (i(/. cloth. 
 
 Roberts' Principles of the Court of Equity : a First Book 
 
 on p]quity Jurisjirutk'iR'u. 'J'liiiil Kdition. .Svo. 1S,». clulh. 
 
 " To the student diiss of our ifiiUers wo conliully recomniciul it." — lyaw 
 Journal. 
 
 Drewry's Forms of Claims and Defences in the Cttian- 
 cory Division of tliu Ilii^h Court of Justice. J'ost Svo. 9.v. flotli. 
 
 "On the wliolo we ouu thoiimirhly i\ iniinml it fo our r<'nil<i>i." — I.nw 
 
 Jixi' III illation Journal. 
 
 Bedford's Final Examination Guide to the Practice of 
 the Supremo Court of Judicature. Questiouit and Auswei-s. Svo. 
 7». 6</. cloth. 
 
 Bedford's Final Guide to the Law of Probate and 
 Divorce. QiK'stions and .\iis\vei-s. "iiul Edit. J'o.st Hvo. [Jn //ii- j/n.'i.s 
 
 Bedford's Table of Leading Statutes for the Intermediate 
 
 and Final ]':.\aiiiinaf ion in Law, liquify an<l Conveyancing;, l.v. on 
 a sheet. 
 
 Seaborne's Law of Vendors and Purchasers of Heal Pro- 
 perty. 2nd Edition. Post Svo. I0«. (id. dotli. 
 
 "The student will find this book a useful introduction to a di-j- and difficult 
 subject." — /mw Hjamiiiiilinii Journal. 
 
 Lewis's Principles of Conveyancing Explained and Illus- 
 trated hj- Concise l'rccedent.s. Svo. ISs. cloth. 
 " Mr. Ixwis has contributed a valuable aid to the Law Student."— />i«» TImff. 
 
 Barry's Treatise on the Practice of Conveyancing. Svo. 
 
 IRv. cloth. 
 
 " nio ti-cuti.sc is tlio pnxlurti.iii nf ii iicrson of jrinit miiit."- .V'>/i>rV>/r<' 
 Jouniiil. 
 
 Powell's Principles and Practice of the Law of Evidence. 
 Fourth Ivlition. By J. Cutlkk, B..V., and K. F. (Juikfin, B.A., 
 Barristcra-at-Law. In Svo. IHk. cloth. 
 
 Cutler and Grifftn's Analysis of the Indian Penal Code. 
 
 Svo. (>«. cloth. 
 
 Cutler on Reporting Cases for the Examinations by 
 
 Selected Candidates for fho Civil ."service of India.. Svo. U. .-ic-wwl. 
 
 JS.. Ortolan's History of the Roman Law, translated 
 
 into Eiifflisli (irit/i the Anllior'.i }uyiiiiK.\iiiii), and Sup]ileniente<l by a 
 Chronometricjil Chart of Honi.an Historj-, by I. T. I'niciiAKD aiul 
 I). NASStiTir, I'^sqrs., Barri.sters-at-Law. 8vo. 28j«. cloth. 
 
 Nasmith's Institutes of English Law. 4 vols. Post Svo. 
 
 .m«. cloth. 
 
 For complete Catalogue, see end of this Book.