STACK, o 036 %V tt 730 i MASTER OF THE REPORTS AND ENTRIES. THE NEW ORDERS FOR THE REGULATION OF THE PRACTICE AND PROCEEDINGS COURT OF CHANCERY. ISSUED BY THE LORD HIGH CHANCELLOR, 26th AUGUST, 1841. LONDON : V. AND R. STEVENS AND G. S. NORTON, (Successors to the late J. Sf W. T. CLARKE, of Portugal Street,) into iionhsrllrrs & JDubliSljcn?, 26 AND 39, BELL YARD, LINCOLN'S INN. MDCCCXLI. Price Sixpence. 35p tf)e OF THE MASTER OF THE REPORTS AND ENTRIES. THE NEW ORDERS FOR THE REGULATION OF THE PRACTICE AND PROCEEDINGS OF THE COURT OF CHANCERY. ISSUED BY THE LORD HIGH CHANCELLOR, 26th AUGUST, 1841. LONDON : V. AND R. STEVENS AND G. S. NORTON, (Succestors to the late J. Sf W. T. CLARKE, of Portugal Street,) 26 AND 39, BELL YARD, LINCOLN'S INN. MDCCCXLI. LONDON : TEMPLE BAR. ORDER OF COURT, 26th August, 184 1 . THE Right Honourable CHARLES CHRISTOPHER LORD COTTENHAM, Lord High Chancellor of Great Britain, by and with the advice and assistance of the Right Honor- able HENRY LORD LANGDALE, Master of the Rolls, Doth hereby, in pursuance of an Act of Parliament, passed in the fourth year of the reign of Her present Majesty, in- tituled " An Act for facilitating the Administration of Justice in the Court of Chancery," and of an Act passed in the fourth and fifth years of the reign of Her present Majesty, intituled, " An Act to amend an Act of the Fourth Year of Her present Majesty, intituled ' An Act for facilitating the Administration of Justice in the Court of Chancery,' " order and direct in manner following; that is to say I. THAT there shall forthwith be prepared a proper Alphabetical Book for the purposes after mentioned, and that such book shall be called the Solicitors' Book, and shall be publicly kept at the Office of the Six Clerks, to be there inspected without fee or reward. II. THAT every Solicitor, before he practice in this Court, in his own name solely, and not by an Agent, whose name shall be duly entered as after mentioned, and every Solicitor, before he practice as such Agent, A 2 2000651 shall cause to be entered in the Solicitors' Book, in alphabetical order, his name and place of business, or some other proper place in London, Westminster, or the Borough of South wark, or within two miles of Lincoln's Inn Hall, where he may be served with writs, notices, orders, warrants, rules, and other documents, proceed- ings, and written communications in causes and matters depending in this Court ; and as often as any such Soli- citor shall change his place of business or the place where he may be served as aforesaid, he shall cause a like entry thereof to be made in the Solicitors' Book, and that the above mentioned entries shall be made in such book by the said Six Clerks, who shall be entitled to a fee of one shilling for every such entry; and that the fund arising from such payment shall be applied, in the first instance, in paying the expenses of ^providing and keeping such book. III. THAT all writs, notices, orders, warrants, rules, and other documents, proceedings, and written communi- cations, which do not require personal service upon the party to be affected thereby, shall be deemed sufficiently served if such document, or a copy thereof, as the case may be, shall be left at the place lastly entered in the Solicitors 1 Book by the Solicitor of such party ; and if any Solicitor shall neglect to cause such entry to be made in the Solicitors' Book as is required by the Second Order, then the fixing up a copy of any such writ, notice, order, warrant, rule, or other document, proceeding, or written communication for such Solicitor in the said Six Clerks' Office, shall be deemed a sufficient service on him, unless the Court shall, under special circumstances, think fit to direct otherwise. IV. THAT if any Solicitor shall give his consent in writing that the service of all or any writs, notices, or- ders, warrants, rules, or other documents may be made upon him through the Post-Office or otherwise, such ser- vice shall be deemed sufficient if made in such manner as such Solicitor shall have so agreed to accept ; but it shall be competent for any Solicitor giving such consent, at any time to revoke the same by notice in writing. V. THAT no person shall be allowed to appear or act, either in person, by Solicitor or Counsel, or to take any proceedings whatever in this Court, either as plaintiff', defendant, petitioner, respondent, party intervening, or otherwise, until an entry of the name of his Solicitor and his Solicitor's Agent, if there be one, or if he act in person, his own name and address for service shall have been made in the Solicitors' Book at the office of the Six Clerks ; but if such address of any person so acting in person, shall not be within London, Westminster, or the Borough of South wark, or within two miles of Lincoln's Inn Hall, then all services upon such person not re- quiring to be made personally, shall be deemed sufficient if a copy of the writ, notice, order, warrant, rule, or other document to be served, be transmitted to him through Her Majesty's Post-Office, to such address as aforesaid. VI. THAT no Writ of Attachment with proclamations, nor any Writ of Rebellion, be hereafter issued for the purpose of compelling obedience to any process, order, or decree of the Court. VII. THAT no order shall hereafter be made for a messenger, or for the Serjeant-at-Arms, to take the body of the defendant for the purpose of compelling him to appear to the Bill. VIII. THAT if the defendant, being duly served with a subpoena to appear to and answer the Bill, shall refuse or neglect to appear thereto, the plaintiff shall, after the expiration of eight days from such service, be at liberty to apply to the Court for leave to enter an appearance for the defendant. And the Court, being satisfied that the subpoena has been duly served, and that no appear- ance has been entered by the defendant, may give such leave accordingly ; and that thereupon the plaintiff may cause an appearance to be entered for the defendant. And thereupon such further proceedings may be had in the cause as if the defendant had actually appeared. IX. THAT upon the Sheriff's return, non est inventus, to an attachment issued against the defendant for not answering the Bill, and upon affidavit made that due diligence was used to ascertain where such defendant was at the time of issuing such writ, and in endeavouring to apprehend such defendant under the same ; and that the person suing forth such writ verily believed, at the time of suing forth the same, that such defendant was in the county into which such writ was issued, the plaintiff shall be entitled to a Writ of Sequestration in the same manner that he is now entitled to such writ, upon the like return made by the Serjeant-at-Arms. X. THAT no Writ of Execution, nor any Writ of At- tachment shall hereafter be issued for the purpose of requiring or compelling obedience to any order or decree of the High Court of Chancery ; but that the party re- quired by any such order to do any act, shall, upon being duly served with such order, be held bound to do such act in obedience to the order. XI. THAT if any party who is by an order or decree ordered to pay money, or do any other act in a limited time, shall, after due service of such order, refuse or neglect to obey the same according to the exigency thereof, the party duly prosecuting such order shall, at the expiration of the time limited for the performance thereof, be entitled to an order for a Serjeant-at-Arms, and such other process as he hath hitherto been entitled to upon a return, non est inventus, by the Commissioners named in a Commission of Rebellion issued for non-per- formance of a decree or order. XII. THAT every order or decree requiring any party to do an act thereby ordered, shall state the time after service of the decree or order within which the act is to be done ; and that upon the copy of the order, which shall be served upon the party required to obey the same, there shall be endorsed a memorandum, in the words, or to the effect following ; viz. " If you, the within named A. JB., neglect to perform this order by the time therein limited, you will be liable to be arrested by the Serjeant-at-Arms attending the High Court of Chan- cery ; and also be liable to have your estate sequestered for the purpose of compelling you to obey the same order." XIII. THAT upon due service of a decree or order for delivery of possession, and upon proof made of demand and refusal to obey such order, the party prosecuting the same shall be entitled to an order for a Writ of Assistance. XIV. THAT the memorandum at the foot of the sub- poena to appear and answer, shall hereafter be in the form following ; that is to say, " Appearances are to be entered at the Six Clerks 1 Office in Chancery Lane, Lon- don, and if you do not cause your appearance to be entered within the time limited by the above writ, the plaintiff will be at liberty to enter an appearance for you ; and you will be subject to an attachment and the other consequences of not answering the plaintiffs bill, if you do not put in your answer thereto within the time limited by the General Orders of the Court for that purpose." XV. THAT every person not being a party in any cause, who has obtained an order, or in whose favour an order shall have been made, shall be entitled to enforce obedi- ence to such order by the same process as if he were a party to the cause ; and every person, not being a party in any cause against whom obedience to any order of the Court may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party to the cause. XVI. THAT a defendant shall not be bound to answer any statement or charge in the Bill, unless specially and particularly interrogated thereto ; and a defendant shall not be bound to answer any interrogatory in the Bill, except 8 those interrogatories which such defendant is required to answer ; and where a defendant shall answer any state- ment or charge in the Bill, to which he is not interro- gated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed im- pertinent. XVII. THAT the interrogatories contained in the in- terrogating part of the Bill, shall be divided as con- veniently as may be from each other, and numbered con- secutively 1, 2, 3, &c., and the interrogatories which each defendant is required to answer, shall be specified in a note at the foot of the Bill, in the form or to the effect following; that is to say, " The defendant (A. B.) is required to answer the interrogatories numbered re- spectively 1, 2, 3, &c., and the office copy of the Bill taken by each defendant shall not contain any interroga- tories except those which such defendant is so required to answer, unless such defendant shall require to be furnished with a copy of the whole Bill. XVIII. THAT the note at the foot of the Bill, specify- ing the interrogatories which each defendant is required to answer, shall be considered and treated as part of the Bill, and the addition of any such note to the Bill, or any alteration in or addition to such note after the Bill is filed, shall be considered and treated as an amendment of the Bill. XIX. THAT intead of the words of the Bill now in use preceding the interrogating part thereof, and begin- ning with the words " To the end therefore," there shall hereafter be used words in the form or to the effect fol- lowing : " To the end, therefore That the said defend- ants may, if they can show why your orator should not have the relief hereby prayed, and may, upon their seve- ral and respective corporal oaths, and according to the best and utmost of their several and respective know- ledge, remembrance, information and belief, full, true, direct and perfect answer make to such of the several in- 9 terrogatories hereinafter numbered and set forth as by the note hereunder written, they are respectively required to answer; that is to say, " 1. Whether, &c. 2. Whether, &c. XX. THAT a defendant in a country cause shall be allowed no further time for pleading, answering, or de- murring to any original or supplemental Bill, or Bill of Revivor, or to any amended Bill, than is now allowed to a defendant in a town cause. XXI. THAT after the expiration of the time allowed to a defendant to plead, answer, or demur (not demurring alone) to an original Bill, if the defendant shall have filed no plea, answer, or demurrer, the plaintiff shall be at liberty to file a note at the Six Clerks' Office to the following effect: "The plaintiff intends to proceed with his cause as if the defendant had filed an answer, travers- ing the case made by the Bill, and the plaintiff had re- plied to such answer, and served a subpoena to rejoin." And that a copy of such note shall be served on such de- fendant in the same manner as a subpoena to rejoin is now served, and such note when filed (a copy thereof being so served), shall have the same effect as if the de- fendant had filed an answer, traversing the whole of the Bill, and the plaintiff had filed a replication to such answer, and served a subpoena to rejoin. And after such note shall have been so filed, and a copy served as afore- said, the defendant shall not be at liberty to plead, answer, or demur to the Bill without the special leave of the Court. XXII. THAT a plaintiff shall not be at liberty to file a note under the Twenty-first Order, until he has obtained an order of the Court for that purpose, which order shall be applied for upon motion, without notice, and shall not be made unless the Court shall be satisfied that the de- fendant has been served with a subpoena to appear and answer the Bill ; and that the time allowed to the de- 10 fendant to plead, answer, or demur, not demurring alone, has expired. XXIII. THAT where no account, payment, conveyance, or other direct relief is sought against a party to a suit, it shall not be necessary for the plaintiff to require such party, not being an infant, to appear to and answer the Bill. But the plaintiff shall be at liberty to serve such party, not being an infant, with a copy of the Bill, whether the same be an original, or amended, or supple- mental Bill, omitting the in terrogating part thereof : and such Bill, as against such party, shall not pray a subpoena to appear and answer, but shall pray that such party, upon being served with a copy of the Bill, may be bound by all the proceedings in the cause. But this order is not to prevent the plaintiff from requiring a party against whom no account, payment, conveyance, or other direct relief is sought, to appear to and answer the Bill, or from prosecuting the suit against such party in the ordinary way, if he shall think fit. XXIV. THAT where a plaintiff shall serve a defend- ant with a copy of the Bill under the Twenty-third Order, he shall cause a memorandum of such service, and of the time when such service was made, to be entered in the Six Clerks 1 Office, first obtaining an order of the Court for leave to make such entry, which order shall be obtained upon motion without notice, upon the Court being satisfied of a copy of the Bill having been so served, and of the time when the service was made. XXV. THAT where a defendant shall have been served with a copy of the Bill, under the Twenty-third Order, and a memorandum of such service shall have been duly entered, and such defendant shall not within the time limited by the practice of the Court for that purpose, enter an appearance in common form, or a special ap- pearance under the Twenty-seventh Order; the plaintiff shall be at liberty to proceed in the cause, as if the party served with a copy of the Bill were not a party thereto, and the party so served shall be bound by all the pro- 11 ceedings in the cause, in the same manner as if he had appeared to and answered the Bill. XXVI. THAT where a party shall be served with a copy of the Bill under the Twenty-third Order, such party, if he desires the suit to be prosecuted against himself in the ordinary way, shall be entitled to have it so prose- cuted ; and in that case he shall enter an appearance in the common form, and the suit shall then be prosecuted against him in the ordinary way. But the costs occa- sioned thereby shall be paid by the party so appearing, unless the Court shall otherwise direct. XXVII. THAT where a party shall be served with a copy of the Bill under the Twenty-third Order, and shall desire to be served with a notice of the pro- ceedings in the cause, but not otherwise to have the same prosecuted against himself, he shall be at liberty to enter a special appearance under the following form ; (that is to say,) " A. B. appears to the Bill for the purpose of being served with notice of all proceedings therein." And thereupon, the party entering such ap- pearance shall be entitled to be served with notice of all proceedings in the cause, and to appear thereon. But the costs occasioned thereby shall be paid by the party entering such appearance, unless the Court shall other- wise direct. XXVIII. THAT a party shall not be at liberty to enter such special appearance under the Twenty-seventh Order, after the time limited by the practice of the Court for appearing to a Bill in the ordinary course, without first obtaining an order of the Court for that purpose ; such order to be obtained on notice to the plaintiff, and the party so entering such special appearance, shall be bound by all the proceedings in the cause, prior to such special appearance being so entered. XXIX. THAT where no account, payment, conveyance or other relief is sought against a party, but the plaintiff shall require such party to appear to and answer the Bill, the costs occasioned by the plaintiff having required 12 such party so to appear and answer the Bill, and the costs of all proceedings consequential thereon, shall be paid by the plaintiff, unless the Court shall otherwise direct. XXX. THAT in all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate or the proceeds, or the rents and profits, in the same manner, and to the same extent, as the execu- tors or administrators in suits concerning personal estate represent the persons beneficially interested in such per- sonal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit. But the Court may upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. XXXI. THAT in suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will established against him. XXXII. THAT in all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the Court, as parties to a suit concerning such demand, all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. XXXIII. THAT where a demurrer or plea to the whole Bill shall be overruled, the plaintiff, if he does not require an answer, shall be at liberty immediately to file his note in manner directed by the Twenty-first Order, and with the same effect, unless the Court shall, upon overruling such demurrer or plea, give time to the defendant to plead, answer, or demur; and in 13 such case, if the defendant shall file no plea, answer, or demurrer, within the time so allowed by the Court, the plaintiff, if he does not require an answer, shall, on the expiration of such time, be at liberty to file such note. XXXIV. THAT where the defendant shall file a de- murrer to the whole Bill, the demurrer shall be held sufficient, and the plaintiff be held to have submitted thereto, unless the plaintiff shall, within twelve days from the expiration of the time allowed to the de- fendant for filing such demurrer, cause the same to be set down for argument : and where the demurrer is to part of the Bill, the demurrer shall be held sufficient, and the plaintiff be held to have submitted thereto, unless the plaintiff shall, within three weeks from the expiration of the time allowed for filing such last men- tioned demurrer, cause the same to be set down for argument. XXXV. THAT where the defendant shall file a plea to the whole or part of a Bill, the plea shall be held good to the same extent and for the same purposes as a plea allowed upon argument, unless the plaintiff shall, within three weeks from the expiration of the time allowed for filing such plea, cause the same to be set down for argument, and the plaintiff shall be held to have submitted thereto. XXXVI. THAT no demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the Bill as it might by law have extended to. XXXVII. THAT no demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. XXXVIII. THAT a defendant shall be at liberty by answer to decline answering any interrogatory or part 14 of an interrogatory, from answering which he might have protected himself by demurrer; and that he shall be at liberty so to decline, notwithstanding he shall answer other parts of the Bill from which he might have protected himself by demurrer. XXXIX. THAT where the defendant shall, by his answer, suggest that the Bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argu- ment upon that objection only ; and the purpose for which the same is so set down shall be notified by an entry, to be made in the Registrar's Book, in the form or to the effect following ; (that is to say,) " Set down upon the defendant's objection for want of parties;" and that where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwith- standing an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course, to an order for liberty to amend his Bill by adding parties : but the Court, if it thinks fit, shall be at liberty to dismiss the Bill. XL. THAT if a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the Court (if it shall think fit) shall be at liberty to make a decree saving the rights of the absent parties. XLI. THAT where a defendant in equity files a cross Bill against the plaintiff in equity for discovery only, the costs of such Bill, and of the answer thereto, shall be in the discretion of the Court at the hearing of the original cause. XLII. THAT where a defendant in equity files a cross Bill for discovery only against the plaintiff in equity, the answer to such cross Bill may be read and used by 15 the party filing such cross Bill, in the same manner, and under the same restrictions, as the answer to a Bill praying relief may now be read and used. XLIII. THAT in cases in which any exhibit may by the present practice of the Court be proved viva voce at the hearing of a cause, the same may be proved by the affidavit of the witness who would be competent to prove the same viva voce at the hearing. XLIV. THAT where a defendant makes default at the hearing of a cause, the decree shall be absolute in the first instance, without giving the defendant a day to show cause, and such decree shall have the same force and effect as if the same had been a decree nisi in the first instance, and afterwards made absolute in default of cause shown by the defendant. XLV. THAT every decree for an account of the per- sonal estate of a testator or intestate shall contain a direction to the Master to inquire and state to the Court what parts (if any) of such personal estate are out- standing, or undisposed of, unless the Court shall other- wise direct. XLVI. THAT a creditor, whose debt does not carry interest, who shall come in and establish the same before the Master, under a decree or order in a suit, shall be entitled to interest upon his debt, at the rate of 4 per cent, from the date of the decree, out of any assets which may remain after satisfying the costs of the suit, the debts established, and the interest of such debts as by law carry interest. XL VI I. THAT a creditor who has come in and esta- blished his debt before the Master under a decree or order in a suit, shall be entitled to the costs of so esta- blishing his debt, and the same shall be taxed by the Master, and added to the debt. XLVIII. THAT in the reports made by the Masters of the Court, no part of any state of facts, charge, affidavit, deposition, examination, or answer, brought in or used before them, shall be stated or recited. But such state 16 of facts, charge, affidavit, deposition, examination, or answer, shall be identified, specified, and referred to, so as to inform the Court what state of facts, charge, affi- davit, deposition, examination, or answer, were so brought in or used. XLIX. THAT it shall not be necessary in any Bill of Revivor, or supplemental Bill, to set forth any of the statements in the pleadings in the original suit, unless the special circumstances of the case may require it. L. THAT in any petition of rehearing of any decree or order made by any Judge of the Court, it shall not be necessary to state the proceedings anterior to the decree or order appealed from, or sought to be reheard. LI. THAT the foregoing Orders shall take effect as to all suits, whether now depending, or hereafter com- menced, on the last day of Michaelmas Term, One thou- sand eight hundred and forty-one. COTTENHAM, C. LANGDALE, M.R. William Stevens, Printer, Bell Yard, Temple Bar. ,i?.. U .. REGIONAL LIBRARY FACILITY A 000018245 LAW BOOKS, RECENTLY PUBLISHED BY V. AND R. STEVENS, AND G. S. NORTON, (Successors to the late J. 8f W. T. CLARKE, of Portugal Street.) DANIELL'S CHANCERY PRACTICE. A TREATISE on the PRACTICE of the HIGH COURT of CHANCERY, with some Practical Observations on the Pleadings in that Court. By EDMUND ROBERT DANIELL, Esq., F.R.S., Barrister at Law. In 2 vols., and Vol. 3, Part 1, 8vo. price 4f. 4*. boards. Vol. 3, part 2, to complete the work, is in the Press. HADDOCK'S PRINCIPLES OF EQUITY. A TREATISE on the PRINCIPLES and PRACTICE of the Court of CHANCERY, under the following Heads: 1. Common-Law Jurisdiction of the Chancellor. 2. Equity Jurisdiction of the Chancellor. 3. Statutory Jurisdiction of the Chancellor ; and Delegated Jurisdiction of the Chancellor. The Third Edition, with very great Additions. By HENRY HADDOCK, Esq., Barrister-at-Law. 2 vols. royal 8vo. price 31. 13*. 6d. boards. BURTON ON REAL PROPERTY. 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